Bill Text: NJ A579 | 2016-2017 | Regular Session | Introduced
Bill Title: Establishes system for early resolution of medical injury claims.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2016-01-27 - Introduced, Referred to Assembly Judiciary Committee [A579 Detail]
Download: New_Jersey-2016-A579-Introduced.html
STATE OF NEW JERSEY
217th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION
Sponsored by:
Assemblywoman AMY H. HANDLIN
District 13 (Monmouth)
SYNOPSIS
Establishes system for early resolution of medical injury claims.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning the resolution of medical injury claims and supplementing Title 2A of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in this act:
"Claim for medical injury" means any claim against a medical care provider, whether based in tort, contract, or otherwise, to recover damages on account of a medical injury.
"Claimant" means an individual who, in his or her own right, or on behalf of another as otherwise permitted by law, is seeking compensation for a medical injury, due to alleged sub-standard medical care or treatment.
"Early offer" means an offer to pay an injured person's economic loss related to a medical injury, and reasonable attorney's fees and costs incurred in representing the injured person under this act. No other damages of any kind shall be included in an early offer under this act.
"Economic loss" means monetary expenses incurred by or on behalf of a claimant reasonably related to a medical injury and its consequences, including actual out-of-pocket medical expenses, replacement services, additional payment to the claimant pursuant to section 7 of this act, and 100 percent of the claimant's salary, wages, or income from self-employment or contract work lost as a result of the medical injury. Economic loss does not include: damages for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, hedonic damages, injury to reputation, and all other non-pecuniary losses of any kind or nature.
"Hearing officer" means a person of legal training chosen by agreement of the parties from a list of civil mediators maintained by the Superior Court of New Jersey.
"Medical care provider" means a physician, physician's assistant, nurse, hospital, clinic, or other health care provider or agency licensed by the State, or otherwise lawfully providing medical care or services, or an officer, employee, or agent thereof acting in the course of and scope of employment.
"Medical injury" or "injury" means any adverse, untoward, or undesired consequences caused by professional services rendered by a medical care provider, whether resulting from: negligence, error, or omission in the performance of those services; rendition of those services without informed consent or in breach of warranty or in violation of contract; failure to diagnose; premature abandonment of a patient or of a course of treatment; failure properly to maintain equipment or appliances necessary to the rendition of those services; or otherwise arising out of or sustained in the course of those services.
"Notice of injury" means written notice by certified mail provided to a medical care provider alleged to have caused a medical injury, and containing a request that the medical care provider extend an early offer, and such information as provided in subsection l. of section 2 of this act.
"Personal representative" means an executor, administrator, successor, personal representative, or special administrator of a decedent's estate or a person legally authorized to perform substantially the same functions.
"Reasonable attorney fee" means 20 percent of the present value of the claimant's economic loss and the reasonable costs incurred in representing the injured person under this act.
"Replacement services" means expenses reasonably incurred in obtaining ordinary and necessary services from others, who are not members of the injured person's household, in lieu of those the injured person would have performed for the benefit of the household, but could not because of the injury.
"Wages" means monetary payment for services rendered, and the reasonable value of board, rent, housing, lodging, fuel, or a similar advantage received from the employer and gratuities received in the course of employment from others than the employer; but "wages" shall not include any sum paid by the employer to the employee to cover any special expenses incurred by the employee because of the nature of the employment. For a minor who is injured prior to reaching the age of 18 and who is unable to perform any gainful work as a result of the medical injury, upon reaching the age of 18 wages shall equal the mean New Jersey per capita income as shown by the American Community Survey's 1-year Estimate (inflation adjusted), produced by the United States Census Bureau.
2. a. After a medical injury, a claimant may:
(1) Pursue resolution of a claim for medical injury pursuant to this act; or
(2) Pursue an action for medical injury in a court of competent jurisdiction.
b. For as long as the claimant and medical care provider are proceeding under this act, this act shall govern the procedure for resolving the medical injury claim at issue between the parties, notwithstanding any other provision of law.
c. If the claimant elects to pursue a remedy under this act, the claimant shall serve a notice of injury to the medical care provider alleged to be responsible for the injury and an executed notification and waiver of rights in the form set forth in section 13 of this act, by certified mail, return receipt requested.
d. Upon the receipt by the medical care provider of a notice of injury and an executed notification and waiver of rights, the medical care provider may elect to:
(1) Extend an early offer of settlement; or
(2) Decline to extend an early offer of settlement.
e. A claimant's failure to submit a notice of injury requesting an early offer, or a provider's failure to extend an early offer, shall not be subject to review in any hearing, court, or other proceeding of any kind.
f. The medical care provider shall respond to the claimant's notice of injury in writing, within 90 days, setting forth the details of its early offer, or indicating that the medical care provider has decided not to extend an early offer of settlement. The medical care provider's written response shall be sent by certified mail, return receipt requested, to the address provided in the claimant's notice of injury.
g. The medical care provider may request in writing that the individual alleging a medical injury submit to an independent medical examination by a qualified and board certified physician chosen by the medical care provider and agreed to by the claimant at a time and place reasonably convenient for the claimant. If the parties cannot agree on a physician to conduct the examination within 30 days of the request, the hearing officer shall select the physician. The physician conducting the examination shall not be affiliated directly or indirectly with the medical care provider alleged to have caused the injury. The cost of the examination, including reasonable travel expenses for the claimant, shall be paid by the medical care provider's professional liability insurance company. Within five days of receipt, the medical care provider or its insurer shall, at no cost to the claimant, provide the claimant with all reports and documents originating from the examination. The claimant shall also be entitled to obtain a transcript and audio-video recording of the examination at the claimant's expense. Any physician conducting medical examinations under this section shall be certified by the appropriate specialty board as recognized by the American Board of Medical Specialties and in good standing with the State Board of Medical Examiners.
h. If the medical care provider requests that the claimant submit to a physical examination as set forth in subsection g. of this section, the time allowed for a medical care provider to respond to the claimant's notice of injury shall be extended by 30 days.
i. If the medical care provider extends an early offer, the claimant shall accept or reject the medical care provider's written offer in writing within 60 days of receipt of the offer. If the claimant requests a hearing pursuant to section 10 of this act, to resolve any dispute with respect to the content of an early offer, the timeframe within which the claimant may accept or reject the early offer shall be extended until 10 days after the decision on the disputed issue is issued by the hearing officer.
j. If the claimant accepts the medical care provider's early offer, the claimant shall notify the medical care provider in writing by certified mail, return receipt requested, and thereafter, the claimant is barred from pursuing any claim for the same medical injury against any medical care provider.
k. If the claimant rejects the medical care provider's early offer or does not accept the medical care provider's early offer within the time constraints provided by subsection i. of this section, the early offer shall be considered rejected. A claimant who rejects an early offer may pursue an action for medical injury against the medical care provider in a court of competent jurisdiction.
l. A notice of injury shall be provided to a medical care provider by certified mail and shall contain:
(1) The name, address, and telephone number of the claimant;
(2) The believed date and place of the alleged medical injury;
(3) The nature of the alleged injury;
(4) An explanation, if known, as to how the alleged injury was caused;
(5) A description of the severity of the alleged injury, including the claimant's opinion of where the injury is located on the National Practitioner Data Bank severity scale;
(6) Medical records and medical bills associated with the alleged injury or a limited authorization allowing the medical care provider to obtain medical records and medical bills associated with the alleged injury;
(7) Evidence of lost wages or income from self-employment or contract work for the individual suffering from an alleged medical injury, which may be supplied through income tax returns or paycheck stubs for the year prior to the alleged injury and any subsequent records up to the date of the notice of alleged injury, or a limited authorization allowing the medical care provider to obtain those records;
(8) A demand for economic loss resulting from the alleged injury, that includes only medical expenses, replacement services, reasonable attorney fees, and lost wages, or income from self-employment or contract work;
(9) The name, address, and telephone number of claimant's attorney; and
(10) A request that the medical care provider extend an early offer of settlement of the claim.
3. a. If the claimant is not represented by legal counsel, upon receiving a notice of injury, the medical care provider shall provide a neutral advisor who is a licensed attorney of this State or a retired judge, at the medical care provider's expense, to offer assistance to the claimant and medical care provider under this act. Among other things, the neutral advisor shall encourage the claimant to consider retaining an attorney, and shall ensure the claimant is aware of the differences between proceeding under this act and proceeding with an action in a court of competent jurisdiction.
b. A claimant who was unrepresented at the time the claimant submitted the notice and waiver of rights shall have the right to withdraw the notice of injury and the notice and waiver of rights within five business days after the claimant's first meeting with the neutral advisor, which shall occur no later than 10 business days from the claimant's notification of the identity of the neutral advisor. In the event the claimant withdraws the notice of injury, the early offer process shall be terminated and both parties shall proceed as if the notice of injury was never filed.
c. No medical care provider or insurer shall extend an early offer prior to the expiration of 15 business days after the claimant receives notification of the appointment of the neutral advisor.
4. a. Proceedings, records, and communications during negotiation of an early offer shall be treated as private and confidential by the claimant and the medical care provider. The outcome and any other writings, evidence, or statements made or offered by a party or a party's representative during negotiation of an early offer and relevant only to the early offer negotiation process are not admissible in court, shall not be submitted or used for any purpose in a subsequent trial, and shall not be publicly disclosed.
b. A notice of injury provided pursuant to subsection c. of section 2 of this act and subsequent actions taken pursuant to this act shall be exempt from the reporting requirements of section 2 of P.L.1983, c.247 (C.17:30D-17), unless the parties reach a settlement under this act. Settlements reached pursuant to this act are not exempt from the reporting requirements of section 2 of P.L.1983, c.247 (C.17:30D-17).
5. a. If an early offer is accepted, economic losses previously incurred by the claimant as a result of the medical injury and reasonable attorney fees shall be paid by the medical care provider to the claimant within 15 days of the claimant accepting an early offer.
b. If an early offer is accepted, the medical care provider shall pay future economic losses incurred by the claimant to the claimant as those losses accrue. If any requested payment is denied, the medical care provider shall notify the claimant in writing of the denial and the basis for denial, and inform the claimant that any request for a hearing under section 10 of this act regarding the denial must be made within 30 days of the date of denial.
(1) Payments for medical bills arising after the early offer settlement is reached shall be made within 15 days after the medical care provider receives reasonable proof of the fact and the amount of loss sustained. If reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof shall be paid within 15 days after that proof is received. Any part or all of the remainder of the claim that is later supported by reasonable proof shall be paid within 15 days after that proof is received by the medical care provider. The medical care provider shall pay any and all fees and charges incurred by the claimant resulting from the medical care provider's failure to make timely payment of medical bills.
(2) Payment of lost wages shall be made weekly. At a minimum, payments shall be adjusted annually on July 1 by a factor equal to the percentage change in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) for New York-Northern New Jersey, for the prior 12 months established by the Federal Bureau of Labor Statistics.
(3) Payment of any other amounts due under an early offer shall be paid within 30 days of the date that the provider receives notice and proof of the fact and amount that is due.
(4) When necessary for the medical care provider or its insurer to evaluate whether medical expenses are reasonably related to the medical injury, the medical care provider may request in writing that the claimant submit to an independent medical evaluation as provided by subsection g. of section 2 of this act.
c. Interest shall accrue at the rate of 1.5 percent per month on any amounts due under an early offer that are not paid as prescribed by this section.
d. In lieu of periodic payments as provided for in this section, the claimant and medical care provider may agree upon a lump sum payment for any and all potential future economic losses suffered by the claimant, provided that the lump sum agreement is reviewed and approved by a hearing officer after a hearing.
6. If death results from a medical injury, the amount of an early offer pursuant to this act shall include:
a. Any economic loss incurred by the decedent prior to death;
b. The value at the time of death of what would have been the net earnings of the deceased, less living expenses during the period of his or her life expectance, but for the medical injury;
c. The value of replacement services during the period of the decedent's life expectancy, but for the medical injury;
d. The additional payment determined pursuant to section 7 of this act; and
e. A reasonable attorney fee.
7. a. In addition to the lost wages, medical expenses, and replacement services, economic loss included in any early offer under this act shall include an additional payment to the claimant.
b. The additional payment, as adjusted under subsection e. of this section, included in an early offer shall be:
(1) For a temporary injury involving only emotional harm, without physical injury: $6,600.
(2) For a temporary injury involving insignificant harm: $2,100.
(3) For a temporary injury involving minor harm: $7,800.
(4) For a temporary injury involving major harm: $31,500.
(5) For a permanent injury involving minor harm: $35,500.
(6) For a permanent injury involving significant harm: $81,500.
(7) For a permanent injury involving major harm: $127,500.
(8) For a permanent injury involving grave harm, or an injury resulting in death: $140,000.
c. Classification of injuries under subsection b. of this section shall be determined using the National Practitioner Data Bank severity scale.
d. Either party may request a hearing pursuant to section 10 of this act to resolve a dispute regarding classification of injury severity under this section.
e. The additional payment amounts in subsection b. of this section shall be adjusted annually on July 1 beginning in 2013 by a factor equal to the percentage change in the Consumer Price Index for All Urban Consumers (CPI-U) for medical care for the Northeast Region for the prior 12 months established by the Federal Bureau of Labor Statistics.
8. a. Payments for economic loss under this act shall not be assignable.
b. Claims for child support, spousal support, or combination child and spousal support payments may be enforced against economic loss settlements.
9. a. Every early offer to settle a claim pursuant to this act shall include all of the economic loss, plus reasonable attorney fees as set forth in this act, and shall not be reduced or apportioned based on comparative fault of multiple providers. Any medical care provider, or combination of providers, alleged to have contributed to causing an injury may extend an early offer as provided in this act, and acceptance of that offer by the claimant shall bar any further lawsuit or other claims for compensation by the claimant against all medical care providers arising as a result of the same medical injury. Any medical care provider that extends an early offer to a claimant may seek contribution in a separate action against any medical care provider or other party that contributed to causing the medical injury. The injured individual shall not be a party to any action for contribution between medical care providers; however, the injured individual shall reasonably cooperate with the proceedings and provide reasonable information and testimony as may be necessary to resolve the contribution claim. The parties to the action shall pay the injured individual all reasonable costs associated with reasonable cooperation and testimony, including travel expenses and reasonable loss of earnings or a witness fee of $100 per day, whichever is greater.
b. Nothing in this section shall limit claims by the claimant against any party other than medical care providers who participated in providing medical care which gave rise to the medical injury.
10. a. Upon the request of either party, a qualified hearing officer shall be chosen to resolve a dispute regarding an early offer made under this act. If the parties cannot agree on the choice of a hearing officer, one will be selected at random.
b. Dispute resolution under this act shall be limited to the following issues:
(1) Whether an early offer includes all of the economic loss related to the injury that is required by this act;
(2) Whether economic loss of any kind, past or future, asserted by the claimant, is reasonably related to an injury that is the subject of an early offer;
(3) Which severity level, pursuant to section 7 of this act, most closely describes the injury that is the subject of an early offer; and
(4) What the net present value of an early offer is, for the purposes of calculating the appropriate payment for reasonable attorney fees.
c. No other disputes arising under this act may be the subject of, or resolved through, a hearing under this section.
d. Any request for a hearing pursuant to this section shall contain a reasonably complete statement of the issue or issues to be resolved in the hearing and shall fully identify all parties to the dispute. Hearings concerning economic loss that arise after a settlement under this act shall be requested within 30 days of the date payment for economic loss is denied under subsection b. of section 5 of this act.
e. The medical care provider or, if applicable, the medical care provider's insurer, shall pay all reasonable costs associated with a hearing under this section.
f. Hearings conducted under this act shall be governed exclusively by this section and by rules adopted by the Superior Court.
g. Any hearing conducted under this act shall be conducted within 45 days of the request and a decision shall be issued within 10 days of completion of the hearing. Hearings may be conducted in person or telephonically.
h. On a motion from any party, or on his or her own motion, a hearing officer may summarily determine any issue in dispute without a hearing if it appears from the record that there are no material issues of fact in dispute. By agreement of the parties, any dispute may be determined by the hearing officer on the written record without a hearing.
i. Hearings conducted pursuant to this section shall be limited to a reasonable amount of time as determined by the hearing officer, shall not require the presence or testimony of expert witnesses, and shall be recorded by an accurate audio or stenographic recording of all testimony, available to both parties at the non-prevailing parties' expense.
j. Parties to a hearing under this section shall exchange exhibits and witness lists at least 10 days prior to the hearing. No exhibit may be introduced or witness called in a hearing unless exchanged with the opposing party pursuant to this subsection.
k. The hearing officer shall issue a written decision resolving the issues in dispute. If the hearing officer finds against the medical care provider on any issue, the decision shall modify the terms of the early offer. The early offer, as modified by the decision of the hearing officer, shall be binding on the parties.
l. In a hearing conducted pursuant to paragraph (2) of subsection b. of this section, if the hearing officer determines the claimant's position to be frivolous, the claimant shall reimburse the medical care provider for its costs related to presenting the dispute to the hearing officer, up to a maximum of $1,000.
m. In a hearing conducted pursuant to paragraph (2) of subsection b. of this section, if the hearing officer determines the medical care provider's position to be frivolous, the medical care provider shall reimburse the claimant for its costs related to presenting the dispute to the hearing officer, up to a maximum of $1,000, or if the claimant is unrepresented, pay the claimant double the amount that was frivolously disputed or denied.
n. Fees paid to the hearing officer for presiding at hearings under this act shall be paid by the medical care provider at a rate of $200 per hour. No hearing officer shall serve if service would constitute a conflict under the New Jersey Rules of Professional Conduct, or would require disqualification under the Code of Judicial Conduct.
11. a. Except for claims on behalf of deceased individuals, claims for medical injury to a competent adult under this act shall be subject to the limitation set forth in N.J.S.2A:14-2.
b. Except for claims on behalf of deceased individuals, claims for medical injury to a minor or incompetent under this act shall be subject to the limitation set forth in section 1 of P.L.1964, c.214 (C.2A:14-2.1).
c. Claims for medical injuries on behalf of deceased individuals shall be subject to the limitations set forth in section 1 of P.L.1977, c.61 (C.2A:14-23.1).
d. Providing a notice of injury to a medical care provider as provided in this act shall operate to toll the applicable statute of limitation with respect to that injury from the time that notice is provided to a medical care provider until the expiration of time for a medical care provider to extend an early offer, or if an early offer is extended, until the acceptance or rejection of an early offer by the claimant, whichever occurs later.
12. Any insurer or third party who has paid or reimbursed economic losses to or for the benefit of the claimant, shall have the right of subrogation against the medical care provider entering into an early offer of settlement under this act.
13. a. Claimants electing to pursue resolution of a medical injury under this act shall execute a notice and waiver of rights which contains the following wording:
WAIVER OF RIGHTS
By agreeing to submit a notice of injury to the medical care provider, I understand that my rights to seek legal remedies and a jury trial for my injuries guaranteed by Paragraph 9 of Article 1 of the New Jersey Constitution may be affected.
I understand that I have the right to consult and retain an attorney to represent me regarding this matter, and that if an early offer settlement is reached, my attorney will be paid by the health care provider, in addition to any amount that is paid for my economic loss.
If I do not have an attorney when I sign this waiver form, the medical care provider will appoint a neutral advisor to assist me in the early offer process and to explain, among other things, the differences between proceeding with an early offer settlement and filing an action in a court of competent jurisdiction. I HAVE THE RIGHT TO WITHDRAW THIS WAIVER AND THE NOTICE OF INJURY ANY TIME PRIOR TO MIDNIGHT OF THE FIFTH BUSINESS DAY AFTER MY FIRST MEETING WITH THE ADVISOR, WHICH MUST OCCUR NO LATER THAN 10 BUSINESS DAYS FROM MY NOTIFICATION OF THE IDENTITY OF THE NEUTRAL ADVISOR.
If, after submitting a notice of injury, the medical care provider does NOT extend an early offer, I am free to pursue my legal remedies as defined in New Jersey law without restriction.
If after submitting a notice of injury, the medical care provider does extend an early offer, I may either:
(1) Accept the early offer;
(2) Request a hearing before a hearing officer to determine whether the early offer includes all of the economic loss I am entitled to under the statute, and if necessary, the hearing officer may order the medical care provider to increase the early offer to meet the requirements of the early offer law; or
(3) Reject the early offer and seek legal remedies.
I understand that if an early offer is made by the medical care provider and I accept that offer, disputes regarding the early offer can be resolved only by a hearing officer chosen from the list of civil mediators maintained by the Superior Court of New Jersey, at my request or the request of the medical care provider. If either party believes that the decision of the hearing officer is unlawful, that party may seek discretionary review in the New Jersey court system; however, there is no assurance that the courts will undertake that review.
Date ________________ Signature __________________________
b. A properly executed waiver form by a claimant who is competent at the time the waiver is executed shall be conclusively presumed to be a sufficient, knowing, and voluntary waiver if the waiver form complies with this section.
14. Except as set forth in subsection i. of section 2 of this act, a claimant may only pursue an action for medical injury in a court of competent jurisdiction when:
a. The claimant elects not to submit a notice of injury pursuant to this act;
b. The medical care provider elects not to extend an early offer pursuant to this act in response to the notice of injury; or
c. The claimant withdraws the notice of injury and the notice and waiver of rights pursuant to section 3 of this act.
15. This act shall take effect on the 90th day next following enactment.
STATEMENT
This bill establishes a mediation system for the resolution of medical injury claims as an alternative for claimants choosing to pursue a medical malpractice action in Superior Court. Under the system, claimants suffering from medical injuries caused by medical care providers may send the provider a notice of injury, requesting that the provider extend an early offer of settlement of the claim of injury. The system then provides for procedures by which an early offer may be calculated and extended to the claimant, as a means of resolving the claim without litigation, which can be costly and time consuming.
Under the bill, a claimant who has been injured by a medical care provider may attempt to resolve the claim through an early offer of settlement. A claimant must first send the provider a notice of injury, which sets forth certain details of the injury and contains a request for an early offer of settlement. Upon receipt of the notice of injury, a provider has 90 days to respond to the claimant with details of its early offer of settlement, or a refusal to extend an early offer of settlement. A claimant must respond to an early offer of settlement within 60 days and, if the offer is accepted, the claimant is barred from pursuing a claim against that provider in court. A provider may also request that the claimant undergo an independent medical examination.
The bill provides that if the claimant is not represented by legal counsel, upon receiving a notice of injury, the medical care provider shall provide a neutral advisor who is a member of the New Jersey Bar Association or a retired judge, at the medical care provider's expense, to offer assistance to the claimant and medical care provider under the bill.
The bill provides that proceedings, records, and communications during negotiation of an early offer shall be treated as private and confidential by the claimant and the medical care provider. A notice of injury received by a medical care provider is exempt from certain reporting requirements under the "Medical Malpractice Liability Insurance Act" until a settlement is reached.
Under the bill, an early offer is an offer by the medical care provider to pay the claimant for economic losses as well as attorney's fees. An early offer also provides certain compensation depending on the severity of injury, according to a schedule based on the National Practitioner Data Bank severity scale.
The bill also provides for a system to resolve disputes concerning certain aspects of the early offer. Under the dispute resolution system, claimants and providers may request a hearing before a neutral hearing officer, chosen from the list of civil mediators maintained by the Superior Court of New Jersey. Dispute resolution is limited to the following issues:
(1) Whether an early offer includes all of the economic loss related to the injury that is required by this act;
(2) Whether economic loss of any kind, past or future, asserted by the claimant, is reasonably related to an injury that is the subject of an early offer;
(3) Which severity level most closely describes the injury that is the subject of an early offer; and
(4) What the net present value of an early offer is, for the purposes of calculating the appropriate payment for reasonable attorney fees.
The bill also provides a notice and waiver of rights form for claimants pursuing an early offer of settlement, which provides that the claimant may be waiving certain rights, such as the right to pursue an action in court, by agreeing to an early offer of settlement.
