HB6474ham001 96TH GENERAL ASSEMBLY

Rep. Mary E. Flowers

Filed: 3/11/2010

09600HB6474ham001 LRB096 21117 EFG 38243 a

AMENDMENT TO HOUSE BILL 6474

AMENDMENT NO. ______. Amend House Bill 6474 by replacing everything after the enacting clause with the following:

"Section 1. Findings; purpose; text and revisory changes; validation; additional material.

(a) The Illinois Supreme Court, in Lebron v. Gottlieb Memorial Hospital, found that the limitations on noneconomic damages in medical malpractice actions that were created in Public Act 94-677, contained in Section 2-1706.5 of the Code of Civil Procedure, violate the separation of powers clause of the Illinois Constitution. Because Public Act 94-677 contained an inseverability provision, the Court held the Act to be void in its entirety. The Court emphasized, however, that "because the other provisions contained in Public Act 94-677 are deemed invalid solely on inseverability grounds, the legislature remains free to reenact any provisions it deems appropriate".

(b) It is the purpose of this Act to reenact certain provisions of Public Act 94-677 that did not involve limitations on noneconomic damages in medical malpractice actions, and to validate certain actions taken in reliance on those provisions.

(c) This Act reenacts (i) Section 8-1901 of the Code of Civil Procedure, which relates to admissions of liability; (ii) the Sorry Works! Pilot Program Act; and (iii) a related Section of the State Finance Act. This Act does not reenact any other provisions of Public Act 94-677.

This Act also makes certain changes in the reenacted provisions: (i) in the Code of Civil Procedure Section, an applicability provision has been changed to reflect the reenactment; and (ii) the termination date of the Sorry Works! Pilot Program has been extended to reflect the reenactment.

In this Act, the base text of the reenacted Sections is set forth as it existed at the time of the Supreme Court's decision, including any amendments that occurred after P.A. 94-677. Striking and underscoring is used only to show the changes being made to that base text.

(d) All otherwise lawful actions taken in reasonable reliance on or pursuant to the Sections reenacted by this Act, as set forth in Public Act 94-677 or subsequently amended, by any officer, employee, agency, or unit of State or local government or by any other person or entity, are hereby validated.

With respect to actions taken in relation to matters arising under the Sections reenacted by this Act, a person is rebuttably presumed to have acted in reasonable reliance on and pursuant to the provisions of Public Act 94-677, as those provisions had been amended at the time the action was taken.

With respect to their administration of matters arising under the Sections reenacted by this Act, officers, employees, agencies, and units of State and local government shall continue to apply the provisions of Public Act 94-677, as those provisions had been amended at the relevant time.

Section 5. The State Finance Act is amended by reenacting Section 5.661 as follows:

(30 ILCS 105/5.661)

Sec. 5.661. The Sorry Works! Fund.

(Source: P.A. 94-677, eff. 8-25-05; 95-331, eff. 8-21-07.)

Section 10. The Code of Civil Procedure is amended by reenacting and changing Section 8-1901 as follows:

(735 ILCS 5/8-1901) (from Ch. 110, par. 8-1901)

Sec. 8-1901. Admission of liability - Effect.

(a) The providing of, or payment for, medical, surgical, hospital, or rehabilitation services, facilities, or equipment by or on behalf of any person, or the offer to provide, or pay for, any one or more of the foregoing, shall not be construed as an admission of any liability by such person or persons. Testimony, writings, records, reports or information with respect to the foregoing shall not be admissible in evidence as an admission of any liability in any action of any kind in any court or before any commission, administrative agency, or other tribunal in this State, except at the instance of the person or persons so making any such provision, payment or offer.

(b) Any expression of grief, apology, or explanation provided by a health care provider, including, but not limited to, a statement that the health care provider is "sorry" for the outcome to a patient, the patient's family, or the patient's legal representative about an inadequate or unanticipated treatment or care outcome that is provided within 72 hours of when the provider knew or should have known of the potential cause of such outcome shall not be admissible as evidence in any action of any kind in any court or before any tribunal, board, agency, or person. The disclosure of any such information, whether proper, or improper, shall not waive or have any effect upon its confidentiality or inadmissibility. As used in this Section, a "health care provider" is any hospital, nursing home or other facility, or employee or agent thereof, a physician, or other licensed health care professional. Nothing in this Section precludes the discovery or admissibility of any other facts regarding the patient's treatment or outcome as otherwise permitted by law.

(c) The changes to this Section made by Public Act 94-677 and reenacted by this amendatory Act of the 96th 94th General Assembly apply to causes of action accruing on or after August 25, 2005, as those changes may be amended from time to time its effective date.

(Source: P.A. 94-677, eff. 8-25-05.)

Section 15. The Sorry Works! Pilot Program Act is amended by reenacting the heading of Article 4 and Sections 401, 405, and 410 and by reenacting and changing Section 415 as follows:

(710 ILCS 45/Art. 4 heading)

ARTICLE 4. SORRY WORKS! PILOT PROGRAM ACT

(Source: P.A. 94-677, eff. 8-25-05.)

(710 ILCS 45/401)

Sec. 401. Short title. This Article 4 may be cited as the Sorry Works! Pilot Program Act, and references in this Article to "this Act" mean this Article.

(Source: P.A. 94-677, eff. 8-25-05.)

(710 ILCS 45/405)

Sec. 405. Sorry Works! pilot program. The Sorry Works! pilot program is established. During the first year of the program's operation, participation in the program shall be open to one hospital. Hospitals may participate only with the approval of the hospital administration and the hospital's organized medical staff. During the second year of the program's operation, participation in the program shall be open to one additional hospital.

The first participating hospital selected by the committee established under Section 410 shall be located in a county with a population greater than 200,000 that is contiguous with the Mississippi River.

Under the program, participating hospitals and physicians shall promptly acknowledge and apologize for mistakes in patient care and promptly offer fair settlements. Participating hospitals shall encourage patients and families to retain their own legal counsel to ensure that their rights are protected and to help facilitate negotiations for fair settlements. Participating hospitals shall report to the committee their total costs for healing art malpractice verdicts, settlements, and defense litigation for the preceding 5 years to enable the committee to determine average costs for that hospital during that period. The committee shall develop standards and protocols to compare costs for cases handled by traditional means and cases handled under the Sorry Works! protocol.

If the committee determines that the total costs of cases handled under the Sorry Works! protocol by a hospital participating in the program exceed the total costs that would have been incurred if the cases had been handled by traditional means, the hospital may apply for a grant from the Sorry Works! Fund, a special fund that is created in the State Treasury, for an amount, as determined by the committee, by which the total costs exceed the total costs that would have been incurred if the cases had been handled by traditional means; however, the total of all grants from the Fund for cases in any single participating hospital in any year may not exceed the amount in the Fund or $2,000,000, whichever is less. All grants shall be subject to appropriation. Moneys in the Fund shall consist of funds transferred into the Fund or otherwise made available from any source.

(Source: P.A. 94-677, eff. 8-25-05.)

(710 ILCS 45/410)

Sec. 410. Establishment of committee.

(a) A committee is established to develop, oversee, and implement the Sorry Works! pilot program. The committee shall have 9 members, each of whom shall be a voting member. Six members of the committee shall constitute a quorum. The committee shall be comprised as follows:

(1) The President of the Senate, the Minority Leader of the Senate, the Speaker of the House of Representatives, and the Minority Leader of the House of Representatives shall each appoint 2 members.

(2) The Secretary of Financial and Professional Regulation or his or her designee.

(b) The committee shall establish criteria for the program, including but not limited to: selection of hospitals, physicians, and insurers to participate in the program; and creation of a subcommittee to review cases from hospitals and determine whether hospitals, physicians, and insurers are entitled to compensation under the program.

(c) The committee shall communicate with hospitals, physicians, and insurers that are interested in participating in the program. The committee shall make final decisions as to which applicants are accepted for the program.

(d) The committee shall report to the Governor and the General Assembly annually.

(e) The committee shall publish data regarding the program.

(f) Committee members shall receive no compensation for the performance of their duties as members, but each member shall be paid necessary expenses while engaged in the performance of those duties.

(Source: P.A. 94-677, eff. 8-25-05.)

(710 ILCS 45/415)

Sec. 415. Termination of program.

(a) The program may be terminated at any time if the committee, by a vote of two-thirds of its members, votes to terminate the program.

(b) If the program is not terminated under subsection (a), the program shall terminate after its second year of operation following its reenactment by this amendatory Act of the 96th General Assembly.

(Source: P.A. 94-677, eff. 8-25-05.)

Section 97. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 99. Effective date. This Act takes effect upon becoming law.".