S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   655

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced by M. of A. GOTTFRIED, GANTT, MAGNARELLI, MAYERSOHN, McENENY,
  PAULIN,  PERRY,  GALEF  --  Multi-Sponsored  by  --  M. of A. BRENNAN,
  COLTON, DINOWITZ, HOOPER, JACOBS, J. MILLER, PHEFFER, WRIGHT  --  read
  once and referred to the Committee on Health

AN  ACT  to amend the public health law, in relation to requiring health
  care providers to inform patients or their representatives of  certain
  errors in diagnosis, treatment or other services

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Legislative findings. The legislature finds that the Ameri-
can Medical Association (AMA) has expressed its support  for  physicians
providing  full  disclosure  to  their  patients regarding their medical
treatments and conditions. The AMA's council  on  ethical  and  judicial
affairs  has  stated:  "It  is  a fundamental ethical requirement that a
physician should at all times deal honestly and  openly  with  patients.
Patients  have a right to know their past and present medical status and
to be free of any mistaken beliefs concerning their conditions.    Situ-
ations occasionally occur in which a patient suffers significant medical
complications  that  may  have  resulted from the physician's mistake or
judgment. In these situations, the physician is  ethically  required  to
inform the patient of all the facts necessary to ensure understanding of
what  has  occurred.  Only  through full disclosure is a patient able to
make informed decisions regarding future medical care."   The AMA  adds:
"Concern regarding legal liability which might result following truthful
disclosure  should  not  affect the physician's honesty with a patient."
(code of medical ethics: current opinions of the council on ethical  and
judicial  affairs,  AMA  Policy Finder, E-8.12, updated June, 1994.) The
legislature further finds that this ethical mandate ought  to  have  the
support  of  law,  and ought to apply not only to physicians, but to all
health care providers.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD02351-01-1

A. 655                              2

  S 2. The public health law is amended by adding a new  section  2805-u
to read as follows:
  S  2805-U.  HEALTH CARE PROVIDER; DUTY TO INFORM PATIENT OF ERROR.  1.
DEFINITION. AS USED IN THIS SECTION, "HEALTH  CARE  PROVIDER"  MEANS  AN
ENTITY LICENSED OR CERTIFIED UNDER THIS ARTICLE OR ARTICLE THIRTY-SIX OF
THIS  CHAPTER  OR  UNDER  ARTICLE THIRTY-ONE OR THIRTY-TWO OF THE MENTAL
HYGIENE LAW, A HEALTH CARE PRACTITIONER LICENSED, REGISTERED  OR  CERTI-
FIED UNDER TITLE EIGHT OF THE EDUCATION LAW, OR A PROVIDER OF PHARMACEU-
TICAL PRODUCTS OR SERVICES OR DURABLE MEDICAL EQUIPMENT.
  2.  A  HEALTH CARE PROVIDER SHALL DISCLOSE TO HIS, HER, OR ITS PATIENT
OR THE PATIENT'S REPRESENTATIVE, ANY ERROR IN  DIAGNOSIS,  TREATMENT  OR
OTHER  SERVICE BY THE HEALTH CARE PROVIDER THAT THE HEALTH CARE PROVIDER
KNOWS HAS CAUSED SUBSTANTIAL HARM OR  SIGNIFICANT  RISK  OF  SUBSTANTIAL
HARM  TO  THE  PATIENT. THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE
HEALTH CARE PROVIDER KNEW OF SUCH ERROR AND OF SUCH HARM OR RISK OF HARM
IF, UNDER THE CIRCUMSTANCES, THE HEALTH CARE PROVIDER REASONABLY  SHOULD
HAVE  HAD  KNOWLEDGE  THEREOF.  THE  DISCLOSURE  SHALL  BE MADE WITHIN A
REASONABLE PERIOD OF  TIME  AND  BE  REASONABLY  UNDERSTANDABLE  TO  THE
PATIENT  OR  THE PATIENT'S REPRESENTATIVE, AND SHALL INCLUDE A STATEMENT
OF THE HARM OR RISK OF HARM.
  3. A HEALTH CARE PROVIDER SHALL NOT BE LIABLE FOR FAILURE TO  DISCLOSE
AN  ERROR,  HARM  OR  RISK OF HARM UNDER THIS SECTION IF THE HEALTH CARE
PROVIDER REASONABLY BELIEVES THAT SUCH DISCLOSURE HAS ALREADY BEEN  MADE
BY ANOTHER HEALTH CARE PROVIDER.
  S 3. This act shall take effect immediately.