Bill Text: OR HB3519 | 2011 | Regular Session | Introduced
Bill Title: Relating to civil actions; appropriating money; declaring an emergency.
Spectrum: Moderate Partisan Bill (Republican 7-1)
Status: (Failed) 2011-06-30 - In committee upon adjournment. [HB3519 Detail]
Download: Oregon-2011-HB3519-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 750
House Bill 3519
Sponsored by Representative OLSON, Senator MORSE; Representatives
JOHNSON, SPRENGER, THOMPSON, WINGARD, Senators BATES, KRUSE
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Prohibits commencement of civil action against health care
provider until after submission of health care claim to medical
legal panel. Establishes membership and procedures for medical
legal panels.
Requires disclosure of identity of expert witness and summary
of expert's opinion in health care claims.
Provides that findings of medical legal panels are not
admissible in subsequent proceedings.
Provides that records and hearings of medical legal panels are
not subject to public disclosure.
Provides that costs of medical legal panels be paid by
surcharges on health care providers.
Establishes Medical Legal Panel Fund. Continuously appropriates
moneys in fund to Chief Justice of Supreme Court for payment of
costs of medical legal panels.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to civil actions; appropriating money; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
{ +
MEDICAL LEGAL PANELS + }
SECTION 1. { + Definitions. As used in sections 1 to 19 of
this 2011 Act:
(1) 'Claimant' means a person who files a notice of health care
claim under section 4 of this 2011 Act.
(2) 'Health care claim' means a civil claim alleging personal
injury or death arising out of the provision of health care
services by a health care provider.
(3) 'Health care facility' has the meaning given that term in
ORS 442.015.
(4) 'Health care practitioner' means emergency medical
technicians certified by the Oregon Health Authority and any
person who is licensed or certified by the:
(a) State Board of Examiners for Speech-Language Pathology and
Audiology;
(b) State Board of Chiropractic Examiners;
(c) State Board of Licensed Social Workers;
(d) Oregon Board of Licensed Professional Counselors and
Therapists;
(e) Oregon Board of Dentistry;
(f) Board of Examiners of Licensed Dietitians;
(g) State Board of Massage Therapists;
(h) Oregon Board of Naturopathic Medicine;
(i) Oregon State Board of Nursing;
(j) Nursing Home Administrators Board;
(k) Oregon Board of Optometry;
(L) State Board of Pharmacy;
(m) Oregon Medical Board;
(n) Occupational Therapy Licensing Board;
(o) Physical Therapist Licensing Board;
(p) State Board of Psychologist Examiners;
(q) Board of Medical Imaging; or
(r) Oregon Health Licensing Agency.
(5) 'Health care provider' means:
(a) A health care practitioner;
(b) A business entity engaged in the provision of health care
services with majority ownership held by health care
practitioners; or
(c) A health care facility.
(6) 'Health care services' means any services rendered by a
health care provider acting within the scope of the license,
registration or certificate issued to the health care
provider. + }
SECTION 2. { + Mandatory submission of health care claims.
(1) A person may commence a civil action against a health care
provider based on a health care claim only if the person has
complied with sections 1 to 19 of this 2011 Act. A complaint in
an action that is subject to this section must allege compliance
with sections 1 to 19 of this 2011 Act.
(2) A civil action against a health care provider based on a
health care claim may not be filed until a medical legal panel
files its findings statement with the circuit court under section
12 of this 2011 Act. + }
SECTION 3. { + Applicability. Section 2 of this 2011 Act
applies only to civil actions that are based on a health care
claim and commenced as described in ORS 12.020 on or after July
1, 2012. + }
SECTION 4. { + Notice of health care claim. (1) Before
commencing a civil action against a health care provider based on
a health care claim, the person asserting the claim must file a
written notice of health care claim in the circuit court for a
county in which the civil action could be commenced. A notice of
health care claim must be clearly titled as a 'Notice of Health
Care Claim ' and must set forth the health care claim, including
all facts and circumstances relating to the injuries or death
giving rise to the health care claim and the amount of damages
sought from the health care provider. A single notice of health
care claim may be filed for health care claims against two or
more health care providers. The notice of health care claim is
subject to ORCP 17.
(2) A person filing a notice of health care claim must serve a
copy of the notice on all health care providers against which a
claim is made in the manner provided in ORCP 7 D not more than 10
days after the claim is filed.
(3) A notice of health care claim must contain the following:
(a) The names and addresses of all health care providers that
are claimed to be at fault;
(b) A detailed statement of facts relating to each health care
provider's conduct that is alleged to support the health care
claim;
(c) The date or dates on which the acts or omissions causing
the damages allegedly occurred;
(d) The names and addresses of all health care providers that
provided care to the claimant after the date when the acts or
omissions causing the damages allegedly occurred;
(e) The identity of all expert witnesses on whom the claimant
relies, and a summary of the opinions of the expert witnesses;
(f) All other facts on which a claimant relies to establish the
health care claim; and
(g) An authorization that allows a medical legal panel to
obtain access to all health care provider records and information
relating to the health care claim and that waives any
confidentiality or privilege solely for the purpose of
consideration of the records by the panel.
(4) The authorization required by subsection (3)(g) of this
section does not constitute a waiver of confidentiality or
privilege for any purpose other than consideration of the health
care claim by a medical legal panel.
(5) A notice of health care claim and all other documents filed
with a circuit court in a proceeding before a medical legal panel
are confidential and not subject to disclosure under ORS 192.410
to 192.505 or any other provision of Oregon law during the
pendency of proceedings before the panel.
(6) A person shall pay to the clerk of the circuit court a
filing fee of $___ at the time of the filing of a notice of
health care claim under this section. + }
SECTION 5. { + Response. Within 20 days after a notice of
health care claim is served on a health care provider under
section 4 of this 2011 Act, the health care provider must file an
appearance in the circuit court for the county in which the
notice of health care claim is filed. The health care provider
must serve a copy of the appearance on the claimant and the chair
of the medical legal panel in the manner provided by ORCP 9. At
the time of filing an appearance under this section, a health
care provider shall pay a filing fee of $___. + }
SECTION 6. { + Source list; master list. (1) The State Court
Administrator shall establish and maintain a source list of
retired Oregon judges, health care practitioners, health care
provider representatives and attorneys who are willing and
qualified to serve on medical legal panels. The source list shall
include persons recommended by professional organizations and
other interested parties and persons who have applied to the
State Court Administrator for inclusion on the source list. An
application for inclusion on the source list must set forth the
status of the applicant's professional license, registration or
certificate and the person's qualifications for serving on a
medical legal panel.
(2) The State Court Administrator shall update the source list
established under subsection (1) of this section at least once
each year.
(3) On or before December 15 of each year, the Chief Justice of
the Supreme Court shall prepare a master list of persons who are
willing and qualified to serve on medical legal panels. The Chief
Justice shall prepare the master list by selecting persons from
the source list established under subsection (1) of this section.
The Chief Justice shall make copies of the master list available
to the presiding judges and clerks of the circuit courts. + }
SECTION 7. { + Appointment of chair of medical legal panel.
(1) Not more than five days after a notice of health care claim
is filed under section 4 of this 2011 Act, the presiding judge of
the circuit court for the county in which the notice of health
care claim is filed shall appoint a person to serve as the chair
of the medical legal panel that will hear the claim. The
appointment must be made in writing. The person appointed must be
a retired Oregon judge, a person with judicial experience or a
person with appropriate civil trial experience. The appointment
must be made from the master list prepared by the Chief Justice
of the Supreme Court under section 6 of this 2011 Act.
(2) A person appointed to serve as the chair under this section
must accept or decline the appointment within five days after the
appointment is made by giving written notice to the presiding
judge who made the appointment.
(3) If a person appointed as a chair fails to accept or
declines the appointment, the presiding judge shall make a new
appointment not later than five days after the date on which a
notice was due under subsection (2) of this section.
(4) Not more than five days after receipt of a chair's
acceptance of the appointment under this section, the presiding
judge shall confirm the appointment in writing by providing the
chair with a copy of the notice of health care claim and the
master list prepared by the Chief Justice under section 6 of this
2011 Act. The court shall notify the parties of the appointment
of the chair.
(5) A person is not eligible to serve as chair for a period of
12 months if the person without good cause:
(a) Fails to accept or declines an appointment within the time
specified in subsection (2) of this section; or
(b) Declines an appointment to serve as a chair more than once
in a calendar year.
(6) The clerk of the circuit court for the county in which the
notice of health care claim is filed shall, upon request by the
chair and with the consent of the presiding judge of that circuit
court, provide administrative and clerical support to the
chair. + }
SECTION 8. { + Appointment of members of medical legal panel.
(1) Within 10 days after receipt of confirmation of appointment
as the chair of a medical legal panel, the chair shall appoint
the members of the panel. The chair shall try to ensure that the
medical legal panel is impartial. The appointments must be made
from the master list prepared by the Chief Justice of the Supreme
Court under section 6 of this 2011 Act. Except as provided in
subsection (2) of this section, the medical legal panel must
consist of the chair, an attorney and a health care practitioner
or a representative of a health care provider. If possible, the
chair shall appoint a health care practitioner who practices in
the same specialty or the profession of a health care
practitioner named in the claim. If a health care claim is made
against a health care facility, the chair may appoint an
administrator from the same type of health care facility named in
the claim.
(2) If a notice of health care claim contains allegations
against more than one health care provider, the chair may choose
two additional panel members who are either health care
practitioners or administrators of health care facilities.
Additional panel members selected under this subsection must be
health care practitioners or administrators of health care
facilities whose practices or professions are the same as that of
one of the health care providers named in the claim.
(3) With the agreement of all parties to a proceeding before a
medical legal panel, the chair may appoint a person who is not on
the master list prepared by the Chief Justice under section 6 of
this 2011 Act.
(4) As soon as possible after a medical legal panel is
appointed under this section, the chair shall give notice of the
appointments to the parties and to the presiding judge of the
circuit court for the county in which the notice of health care
claim is filed.
(5) A party to a proceeding before a medical legal panel may
challenge the appointment of any person to the panel on the basis
of actual bias. Upon a showing of actual bias by the challenging
party or an acknowledgment of bias by the panel member, the chair
shall select a replacement panel member from the master list
prepared by the Chief Justice under section 6 of this 2011 Act.
If possible, the chair shall select a replacement panel member
whose professional qualifications match those of the removed
panel member.
(6) If the chair is challenged on the basis of actual bias, the
party making the challenge shall notify the presiding judge of
the circuit court for the county in which the notice of health
care claim is filed. The presiding judge shall rule on the
challenge within 20 days after being notified of the challenge.
If the presiding judge finds cause for the challenge, the
presiding judge shall order the removal of the chair and shall
appoint a qualified replacement chair from the master list within
five days after the order is entered.
(7) A person appointed under this section who believes that
service on the medical legal panel would be inappropriate under
the circumstances, or who believes that service would conflict
with duties of professional responsibility as established by law
or by a professional organization, shall decline to serve on the
panel and notify the chair in writing as soon as practicable that
the person will not serve. The chair shall select a replacement
for the disqualified panel member from the master list within
five days after the chair receives the notice.
(8) Any person appointed to a medical legal panel may not
participate in, or be present at, any subsequent civil, criminal
or administrative proceeding arising out of the conduct that is
the basis of the health care claim to be decided by the panel.
(9) Panel members are immune from civil liability for all
communications, findings, opinions and conclusions rendered in
the course and scope of the duties prescribed by sections 1 to 19
of this 2011 Act. + }
SECTION 9. { + Prehearing procedures. (1) Within five days
after filing an appearance under section 5 of this 2011 Act, a
health care provider or the health care provider's counsel shall
contact the claimant or, if the claimant is represented by
counsel, shall contact the claimant's counsel. The health care
provider and claimant by agreement shall establish a timetable
for completing discovery and filing all relevant medical and
health care provider records necessary to a determination by the
medical legal panel. The claimant shall notify the chair of the
medical legal panel of the timetable.
(2) If the parties to a proceeding before a medical legal panel
are unable to agree on a timetable within five days after the
filing of an appearance, the claimant shall notify the chair.
The chair shall:
(a) Establish a timetable for the filing of all relevant
records and reasonable discovery;
(b) Provide a copy of the timetable to the parties; and
(c) File a copy of the timetable with the clerk of the circuit
court for the county in which the notice of health care claim is
filed.
(3) The chair shall establish a date for the hearing before the
medical legal panel. If the chair has established a timetable
under subsection (2) of this section, the hearing may not be
scheduled sooner than 30 days after the copy of the timetable is
provided to the parties. Except as provided in subsection (4) of
this section, all hearings on a notice of health care claim must
be held within 120 days after the notice of health care claim is
filed. If a hearing is not held within 120 days after the notice
of health care claim is filed, either party may move for
dismissal of the claim under section 11 (2) of this 2011 Act.
(4) A party to a proceeding before a medical legal panel may
request an extension for any date specified in the timetable
established under this section or for the hearing date
established for the hearing. The request must be made in writing
to the chair. The chair may grant an extension, but may not
extend any time period that would result in the hearing being
held more than 365 days after the notice of health care claim is
filed. If a hearing is not held within 365 days after the notice
of health care claim is filed, the court shall dismiss the claim
under section 11 (2) of this 2011 Act.
(5) The chair shall permit reasonable discovery, including
discovery of the identity of an expert witness. Parties may not
depose expert witnesses, but parties may require the production
of a summary of the opinion of the expert witness. The summary
must set forth the bases upon which the opinion is rendered and
must be signed by the expert witness. Any party may depose an
opposing party. Except for discovery of the identity of expert
witnesses, production of a summary of the opinion of an expert
witness and depositions of opposing parties, all discovery must
be approved by the chair before the discovery is requested.
(6) The chair has the same power to subpoena as a circuit court
judge and may exercise that power without the agreement of panel
members. + }
SECTION 10. { + Hearing procedure. (1) Except as otherwise
provided in this section, a medical legal panel shall conduct a
combined hearing or hearings for all notices of health care claim
that relate to a common set of facts. The chair of a medical
legal panel may order separate hearings on a notice of health
care claim that alleges health care claims against more than one
health care provider that relate to a common set of facts if the
parties request separate hearings and the chair finds good cause
for separate hearings.
(2) A claimant or a representative of the claimant shall
present the case before the medical legal panel. The health care
provider or a representative of the health care provider shall
make a responding presentation.
(3) The chair shall make all procedural rulings. Rulings by the
chair on procedural matters are final. The chair shall afford the
parties wide latitude in presenting the case, including allowing
the use of sworn statements in lieu of testimony.
Cross-examination of witnesses is permitted, but the chair shall
limit cross-examination to the minimum necessary to the allow the
medical legal panel to make informed findings.
(4) The medical legal panel may seek the opinion of expert
witnesses selected by the panel. Funds to compensate expert
witnesses for opinions under this subsection shall be drawn from
the Medical Legal Panel Fund established under section 17 of this
2011 Act.
(5) ORS 40.010 to 40.585 do not apply to hearings conducted by
a medical legal panel. The chair shall admit evidence if it is
the type of evidence upon which reasonably prudent persons rely
in the conduct of their serious affairs. A party may admit a
deposition regardless of whether the deponent is available at the
hearing. The medical legal panel shall make findings upon the
evidence that is presented at the hearing, including records and
any expert opinion provided by or sought by the panel or the
parties.
(6) After presentations by the parties, the medical legal panel
may request from either party additional facts, records or other
information to be submitted in writing or at a continued hearing
to be held as soon as practicable. Panel members who attended the
initial hearing must attend any continued hearing unless the
parties agree otherwise.
(7) The medical legal panel shall make and keep an audio record
of a hearing before the panel. The record shall remain
confidential and is not subject to disclosure under ORS 192.410
to 192.505 or any other provision of Oregon law without the
consent of all parties. Hearings conducted by the medical legal
panel are not subject to ORS 192.610 to 192.690 and may not be
opened to the public without the consent of all parties.
(8) The parties to a proceeding before a medical legal panel
may agree to submit the health care claim to the panel for a
determination of damages. Any determination by the medical legal
panel regarding damages is not binding on the parties.
(9) The chair of a medical legal panel or a panel member may
not be examined or deposed as to:
(a) Any communication to or from a party or the party's legal
representative;
(b) Communications between panel members; or
(c) The findings of a medical legal panel on which the panel
member served. + }
SECTION 11. { + Dismissal of claims. (1) A claimant may
dismiss a health care claim pending before a medical legal panel
at any time. The parties may agree to dismiss a claim by a
stipulation of dismissal signed by all parties who have appeared
before the medical legal panel. If the chair of a medical legal
panel has been appointed, a notice of dismissal may be filed with
the chair. If the chair has not been appointed, the notice of
dismissal may be filed with the circuit court for the county in
which the notice of health care claim is filed.
(2) The chair may order dismissal of a health care claim or
order that a health care provider is in default if a party fails
to comply with rulings of the chair or prehearing and hearing
procedures required under sections 1 to 19 of this 2011 Act. The
chair may dismiss a health care claim or order that a health care
provider is in default under this subsection only upon a motion
by the chair or any party, and after providing all parties with
notice and opportunity to be heard.
(3) If a claim is dismissed under this section pursuant to a
motion of the claimant, or because the claimant fails to comply
with rulings of the chair or prehearing and hearing procedures
required under sections 1 to 19 of this 2011 Act, the dismissal
is without prejudice for purposes of all proceedings before the
medical legal panel arising out of the notice of health care
claim. A dismissal under this subsection does not affect the
requirements of section 2 of this 2011 Act, and the claimant may
not thereafter file a civil action against a health care provider
based on the same claim unless a written notice of health care
claim is filed as required by section 4 of this 2011 Act.
(4) If a claim is dismissed under this section pursuant to a
motion of the health care provider, or because the health care
provider fails to comply with rulings of the chair or prehearing
and hearing procedures required under sections 1 to 19 of this
2011 Act, the dismissal is with prejudice for purposes of
proceedings before the medical legal panel arising out of the
notice of health care claim, and the chair of the panel shall
prepare a panel findings statement as required by section 12 of
this 2011 Act showing the claimant as the prevailing party. + }
SECTION 12. { + Medical legal panel findings. (1) Within 10
days after the conclusion of the parties' presentations at a
hearing, a medical legal panel shall make findings in writing and
file the panel findings statement with the circuit court for the
county in which the notice of health care claim is filed. A
majority of the panel members must agree on each finding. The
panel findings statement shall be signed by the chair of the
medical legal panel and indicate the vote of each panel member.
(2)(a) For each health care provider, the chair of the medical
legal panel shall complete a panel findings statement certifying
the findings of the panel and shall file the completed statement
in the circuit court for the county in which the notice of health
care claim is filed.
(b) A panel findings statement must be in the following
form: + }
_________________________________________________________________
{ + Pursuant to sections 1 to 19 of this 2011 Act, I certify
the accuracy of the following. A notice of health care claim(s)
was filed in the Circuit Court for _____ County on ___ (date). A
medical legal panel was appointed under sections 1 to 19 of this
2011 Act to review claimant's health care claim of insert
specific type of claim ________ asserted by insert name of
claimant ________ against insert name of health care provider
________.
At least a majority of the medical legal panel finds:
(A) __ In favor of the health care provider.
(B) __ In favor of the claimant.
If both the health care provider and the claimant were found to
be at fault:
(A) The health care provider was __ percent at fault.
(B) The claimant was __ percent at fault.
/s/____________ ____________
Medical Legal panel Chair Date
Panel Member ____________ agrees __ disagrees __ with this
finding.
Panel Member ____________ agrees __ disagrees __ with this
finding.
Panel Member ____________ agrees __ disagrees __ with this
finding.
Panel Member ____________ agrees __ disagrees __ with this
finding.
Panel Member ____________ agrees __ disagrees __ with this
finding.
Panel Member ____________ agrees __ disagrees __ with this
finding. + }
________________________________________________________________
{ + (3) The medical legal panel's findings for each health
care claim asserted shall determine:
(a) Whether the claimant proved by a preponderance of the
evidence that any health care provider was at fault in at least
one of the ways alleged in the health care claim and that the
health care provider's fault was a cause of damages claimed by
the claimant; and
(b) Whether any health care provider proved by a preponderance
of the evidence that the claimant was at fault and that the
claimant's fault was a cause of the damages claimed by the
claimant.
(4) If the medical legal panel finds that both the claimant and
one or more health care providers were at fault and that the
fault of each contributed to the damages claimed by the claimant,
the panel shall compare the fault of the parties. The medical
legal panel shall assign a percentage of fault to the claimant
and to each health care provider found to have been at fault.
Unless the parties otherwise agree in writing, the medical legal
panel may not determine the percentage of damages attributable to
each of the parties.
(5) The percentages of fault assigned under subsection (4) of
this section must total 100 percent.
(6) If the claimant's fault is more than 50 percent of the
combined percentage of fault of all parties, the medical legal
panel shall make a finding in favor of the health care providers
in the proceeding.
(7) If the claimant's fault is 50 percent or less of the
combined percentage of fault of all parties, the medical legal
panel shall make a finding in favor of the claimant.
(8) The chair shall serve a copy of the panel findings
statement upon the parties by registered or certified mail, or by
any other mail service with delivery confirmation, within 10 days
after the date the panel findings statement is filed with the
circuit court. The presiding judge of the circuit court for the
county in which the notice of health care claim is filed shall
retain a record of the hearing, including the panel findings
statement and the notice of health care claim. The records shall
be sealed by the presiding judge, stored and destroyed in
accordance with the circuit court's practices and procedures. The
chair shall return all medical and health care provider records
to the parties that furnished the records upon filing of the
panel findings statement.
(9) A finding of a medical legal panel is not a disposition of
a claim for the purposes of ORS 742.400. + }
SECTION 13. { + Admissibility of medical legal panel findings
in subsequent proceedings. The findings of a medical legal panel
under section 12 of this 2011 Act are not admissible in any
subsequent proceeding. + }
SECTION 14. { + Panel member compensation. (1) Members of
medical legal panels shall be compensated at a rate determined by
the Chief Justice of the Supreme Court. The Chief Justice shall
review the hourly rate once every two years and shall adjust the
amount by rule when the Chief Justice deems that an adjustment in
the amount is necessary to ensure an adequate number of persons
willing and qualified to serve on medical legal panels.
(2) The Chief Justice shall adopt rules establishing:
(a) The method by which panel members track and record time
spent on panel service;
(b) A form for panel members to use when requesting
compensation;
(c) Guidelines for the retention of expert witnesses by medical
legal panels, including the amount of fees payable to expert
witnesses;
(d) A form for requests for payment of expert witness fees; and
(e) Fees that may be charged by circuit courts for clerical
support of medical legal panels.
(3) Upon completion of service on a medical legal panel, each
panel member shall submit the compensation form established under
subsection (2)(b) of this section to the clerk of the circuit
court for the county in which the notice of health care claim is
filed. The clerk of the circuit court shall transmit the
compensation form to the Chief Justice, who shall direct payment
to the panel members within 30 days after receiving the
compensation form.
(4) Panel members are entitled to reimbursement of actual and
necessary travel expenses incurred as provided in ORS 292.495
(2). Claims for reimbursement of travel expenses must be
submitted to the Chief Justice.
(5) The Chief Justice shall issue an annual report listing the
number of notices of health care claim heard by medical legal
panels, the county in which each notice of health care claim was
heard by a panel, the findings by each panel as described in the
panel findings statements required under section 12 of this 2011
Act, and the type of health care provider named in the notices of
health care claim that were heard by the panels. + }
SECTION 15. { + Health care provider surcharges. (1) Once
each year, the Chief Justice of the Supreme Court shall:
(a) Estimate the number of notices of health care claim likely
to be heard by medical legal panels for the following year;
(b) Calculate the funds necessary to compensate panel members
and expert witnesses retained by medical legal panels and to
cover other panel costs during the year; and
(c) Determine the surcharges to be assessed upon health care
providers for the purpose of paying those costs.
(2) The Chief Justice shall establish surcharges under this
section as follows:
(a) Hospitals and long term care facilities, both as defined in
ORS 442.015, that have a specified number of licensed beds shall
be assessed proportionately based on the total number of licensed
beds, as listed in the most recent compilations of the Oregon
Health Authority.
(b) All health care facilities that do not have a specified
number of licensed beds shall be assessed the same surcharge.
(c) All health care providers other than a health care facility
shall be assessed the same surcharge. The amount of the surcharge
may be different than the surcharge assessed on a health care
facility under paragraph (b) of this subsection.
(3) The Chief Justice may not assess a surcharge against any
health care practitioner who is employed on a full-time basis by
a state agency or the federal government.
(4) By October 15 of each calendar year, the Chief Justice
shall inform all state agencies listed in section 16 (2) and (3)
of this 2011 Act of the surcharges to be assessed for the
following calendar year. The surcharges must be paid to the Chief
Justice on or before December 31 of each calendar year.
(5) Before establishing surcharges under this section, the
Chief Justice shall consult with health care industry
associations and state agency representatives, including but not
limited to the Oregon Medical Board, Oregon Medical Association,
Oregon Dental Association, Oregon Association of Hospitals and
Health Systems, Oregon State Bar and Judicial Department.
(6) The Chief Justice shall deposit all surcharges paid to the
Chief Justice under this section in the Medical Legal Panel Fund
established under section 17 of this 2011 Act. If the amounts in
the fund at the end of any calendar year exceed the amounts
required for the compensation of panel members and other costs of
administering medical legal panels in the next calendar year, the
Chief Justice shall reduce the amount of the annual surcharges by
appropriate amounts. The annual amount of the surcharge assessed
against any health care provider may not be less than $15. + }
SECTION 16. { + Collection of health care provider
surcharges. (1) Each of the state agencies listed in subsections
(2) and (3) of this section shall adopt rules that establish a
deadline for collection of surcharges in order to pay the
surcharges to the Chief Justice of the Supreme Court within the
time allowed by section 15 (4) of this 2011 Act. Each state
agency may establish its own deadline for receipt of surcharges
in order to coordinate collection of the surcharges with the
collection of other license, registration and certification
assessments. The deadline may not be later than December 15 of
the calendar year in which the surcharge is to be paid. The rules
shall specify that failure to remit the surcharge by the deadline
shall result in a suspension of a license, registration or
certificate until the surcharge is received.
(2) The Oregon Health Authority shall assess and collect
surcharges from emergency medical technicians certified by the
authority, from all health care facilities and from all business
entities engaged in the provision of health care services with
majority ownership held by health care practitioners.
(3) The following state agencies shall collect surcharges from
health care practitioners licensed, registered or certified by
the agency:
(a) State Board of Examiners for Speech-Language Pathology and
Audiology;
(b) State Board of Chiropractic Examiners;
(c) State Board of Licensed Social Workers;
(d) Oregon Board of Licensed Professional Counselors and
Therapists;
(e) Oregon Board of Dentistry;
(f) Board of Examiners of Licensed Dietitians;
(g) State Board of Massage Therapists;
(h) Oregon Board of Naturopathic Medicine;
(i) Oregon State Board of Nursing;
(j) Nursing Home Administrators Board;
(k) Oregon Board of Optometry;
(L) State Board of Pharmacy;
(m) Oregon Medical Board;
(n) Occupational Therapy Licensing Board;
(o) Physical Therapist Licensing Board;
(p) State Board of Psychologist Examiners;
(q) Board of Medical Imaging; and
(r) Oregon Health Licensing Agency. + }
SECTION 17. { + Medical Legal Panel Fund. The Medical Legal
Panel Fund is established separate and distinct from the General
Fund. Interest earned by the Medical Legal Panel Fund shall be
credited to the fund. The Chief Justice of the Supreme Court
shall administer the Medical Legal Panel Fund and hold the fund
in trust for the benefit of claimants and health care providers.
All amounts in the Medical Legal Panel Fund are continuously
appropriated to the Chief Justice of the Supreme Court and may be
used only to fund the compensation of panel members and pay other
costs associated with medical legal panels. + }
SECTION 18. { + Tolling of statute of limitations. The
applicable statute of limitations for any civil action based on a
health care claim is tolled from the date that a notice of health
care claim is filed with a circuit court under section 4 of this
2011 Act until:
(1) Thirty calendar days after the date upon which the medical
legal panel's findings statement for the health care claim is
filed with the circuit court under section 12 of this 2011 Act;
or
(2) The date on which the health care claim is dismissed under
section 11 (3) of this 2011 Act. + }
SECTION 19. { + Rules. The Chief Justice of the Supreme Court
shall adopt rules to implement the provisions of sections 1 to 19
of this 2011 Act, including rules for proceedings before medical
legal panels. + }
SECTION 20. { + Operative date. (1) Except as provided in
subsection (2) of this section, sections 1 to 19 of this 2011 Act
become operative on January 1, 2012.
(2) Sections 1 to 19 of this 2011 Act become operative on the
effective date of this 2011 Act for the purpose of:
(a) The establishment and maintenance of a source list, and
preparation of a master list, of persons who are willing and
qualified to serve on medical legal panels under section 6 of
this 2011 Act;
(b) The adoption of rules under section 14 (2) of this 2011
Act;
(c) The establishment and collection of surcharges under
sections 15 and 16 of this 2011 Act for the purpose of funding
medical legal panels in calendar year 2012;
(d) The establishment of the Medical Legal Panel Fund under
section 17 of this 2011 Act; and
(e) The adoption of rules under section 19 of this 2011
Act. + }
{ +
EXPERT WITNESSES + }
SECTION 21. { + Section 22 of this 2011 Act is added to and
made a part of the Oregon Rules of Civil Procedure. + }
SECTION 22.
{ +
DISCLOSURE OF EXPERT WITNESSES + }
{ +
RULE 42 + }
{ + A Disclosure required. Unless otherwise directed by the
court or agreed to by stipulation, a party must serve all other
parties with a notice that makes the disclosures required by
section B of this rule for any person who will testify at trial
as an expert witness under ORS 40.410.
B Contents of disclosure.
B(1) Disclosure generally. The disclosure required under this
rule must contain:
(a) The name and address of the person who will testify as an
expert witness;
(b) A summary of the expert witness's opinion, signed by the
witness, that includes the bases upon which the opinion is
rendered;
(c) The qualifications of the expert witness, including a list
of all publications authored by the witness within the
immediately preceding five years;
(d) The compensation paid or to be paid to the expert witness
for preparation for trial, including compensation for studies
conducted by the witness, and for the witness's appearance at
trial; and
(e) A list of any other cases in which the witness has
testified as an expert at trial or by deposition within the
immediately preceding five years.
B(2) Modification by court. Upon motion of any party, or upon
the court's own motion, the court may modify the contents of a
disclosure under subsection (1) of this section for good cause
shown or may enter such protective orders as the court deems
appropriate. If a party seeks to disclose an additional expert
witness after expiration of the time allowed under section C of
this rule, in addition to any other showing the court may
require, the party must establish that at the time disclosure was
required under section C of this rule the party could not have
reasonably anticipated the need for the expert witness.
C Time of disclosure.
C(1) Initial disclosure. Subject to subsection (2) of this
section, unless otherwise directed by the court or agreed to by
stipulation, the notice required by this rule must be served at
least 90 days before trial.
C(2) Rebuttal disclosure. Within 45 days after service of
notice under subsection (1) of this section, any party may serve
on all other parties a notice that makes the disclosures required
by section B of this rule for any person who will testify at
trial for the party as an expert witness in rebuttal to the
testimony of an expert witness disclosed in a notice served under
subsection (1) of this section.
D Supplemental notice. A party who has served notice under this
rule, including any party who has served notice under paragraph
C(2) of this rule, must file a supplemental notice that includes
information about a previously disclosed expert witness that was
acquired after the notice was served if the party discovers that
the notice is incomplete or incorrect in some material respect.
Supplemental notice under this section may not be used to
disclose additional expert witnesses after expiration of the time
allowed under section C of this rule. Supplemental notices under
this section must be served no later than 30 days before trial
unless the discovery is made within the 30-day period preceding
trial. If the discovery is made within the 30-day period
preceding trial, the supplemental notice must be served within 24
hours after the party makes the discovery.
E Depositions. An expert witness may not be deposed or
otherwise contacted by the parties to whom notice is given under
this rule except with specific authorization from the court and
only for the purpose of showing that the party offering the
testimony of the expert witness failed to comply with the
requirements of this rule.
F Sanction. The court may not allow an expert witness to
testify at trial unless the party offering the testimony has
given notice of the name and address of the expert witness in the
manner required by this rule. The court may impose such other
sanctions as may be appropriate for failure to fully comply with
any other disclosure requirement of this rule. + }
SECTION 23. { + Section 22 of this 2011 Act applies only to
civil actions filed on or after the effective date of this 2011
Act. + }
{ +
CAPTIONS + }
SECTION 24. { + The unit and section captions used in this
2011 Act are provided only for the convenience of the reader and
do not become part of the statutory law of this state or express
any legislative intent in the enactment of this 2011 Act. + }
{ +
EMERGENCY CLAUSE + }
SECTION 25. { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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