HB3245

SECTION 1. Chapter 453, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§453-A Reports relating to professional conduct and capacity of physicians and surgeons. (a) Entities required to report:

(1) Health care institutions. The chief administrator or executive officer of any health care institution licensed by the Hawaii department of health shall report to the board when:

(A) The clinical privileges of any person licensed to practice medicine or surgery in the State under this chapter are terminated or restricted based on a final determination, in accordance with that institution's bylaws or rules, that:

(i) The person has committed an act or acts that may directly threaten patient care and the act or acts are not of an administrative nature; or

(ii) The person may be mentally or physically disabled in a manner that endangers patients under that person's care; or

(B) A person accepts voluntary termination or restriction of clinical privileges in lieu of formal action:

(i) Based upon conduct related directly to patient care and not of an administrative nature, or

(ii) Seeking to determine whether the person may be mentally or physically disabled in a manner that endangers patients under that person's care.

The report shall be strictly confidential and may be reviewed only as provided by rules adopted by the board.

(2) Professional associations. The president or chief executive officer of any association or society of persons licensed to practice medicine or surgery in the State under this chapter shall report to the board upon a final determination that a person has committed unprofessional conduct related directly to patient care or that a person may be mentally or physically disabled in a manner that endangers patients under that person's care.

(3) Professional liability insurers. Every insurance company that offers policies of professional liability insurance to, or any other entity that seeks to indemnify the professional liability of a person licensed to practice medicine or surgery in the State under this chapter, shall report to the board upon the settlement of any claim, cause of action, or final judgment based upon negligence in the furnishing of medical care by a licensed person when settlement or final judgment is in favor of the plaintiff.

(4) Attorney general. The attorney general shall report to the board all instances in which a person licensed under this chapter is convicted or otherwise found guilty of any felony.

(5) State agencies. All departments, boards, commissions, or other instrumentalities of the State shall report to the board any instance arising in connection with its operations in which a person licensed under this chapter has committed an act or acts that:

(A) May constitute unprofessional conduct related directly to patient care; or

(B) Indicate that the person may be mentally or physically disabled in a manner that endangers patients under that person's care.

(b) All reports required by subsection (a) and section 453-8 shall be submitted to the board in a timely fashion. The reports shall be filed in writing within sixty days after a determination that a report is required under this section. All reports shall contain the following information:

(1) The name, address, and telephone number of the person making the report;

(2) The name, address and telephone number of the person who is the subject of the report;

(3) The name and date of birth of any patient or patients whose treatment is a subject of the report, if available, or other means of identification if the information is not available, identification of the hospital or other healthcare facility where the care at issue in the report was rendered, provided, that no medical records shall be revealed;

(4) A brief description of the facts that gave rise to the issuance of the report, including the dates of any occurrences deemed to necessitate the filing of the report;

(5) If court action is involved, the identity of the court in which the action is filed, along with the docket number and date of filing of the action; and

(6) Any further pertinent information which the reporting party deems to be an aid in the evaluation of the report.

The board or department may also exercise the power under to subpoena copies of hospital or medical records in mandatory report cases alleging death or permanent bodily injury. Appropriate rules shall be adopted by the department pursuant to chapter 91, with the approval of the board.

When the department has received written reports concerning incidents required to be reported by this section or section 453-8, the licensee's failure to report the incident to the department under those items shall not be the sole grounds for disciplinary action.

Nothing contained in this section shall act to in any way, waive or modify the confidentiality of medical reports or any other reports to the extent provided by law. Except for information required for physician profiles under subsection (a), any information reported or disclosed shall be kept for the confidential use of the board as provided in this section and section 453-B, and shall be afforded the same status as is provided information concerning medical studies in chapter 324, except that the department may disclose information and documents to a federal, state, or county law enforcement agency pursuant to a subpoena in an ongoing criminal investigation. Furthermore, information and documents disclosed to a federal, state, or county law enforcement agency may be used by that agency only for the investigation and prosecution of a criminal offense.

(c) Any individual or organization acting in good faith, and not in a wilful and wanton manner, in complying with this section by providing any report or other information to the board, or by voluntarily reporting to the board information regarding alleged errors or negligence by a licensed physician or surgeon, or by participating in proceedings of the board, or by serving a member of the board, shall not be subject to criminal prosecution or civil damages as a result of the actions.

(d) Members of the board, the board's attorneys, and authorized clerical staff shall be indemnified by the State for any actions occurring within the scope of services on the board, done in good faith and not wilful and wanton in nature. The attorney general shall defend all actions unless the attorney general determines that there would be a conflict of interest in the representation or that the actions complained of were not in good faith or were wilful and wanton.

Should the attorney general decline representation, the member shall have the right to employ counsel of the member's choice, whose fees shall be provided by the State, after approval by the attorney general, unless there is a determination by a court that the member's actions were not in good faith or were wilful and wanton.

The member shall notify the attorney general within seven days of receipt of notice of the initiation of any disciplinary action involving services of the board. Failure to so notify the attorney general shall constitute an absolute waiver of the right to a defense and indemnification.

The attorney general shall determine within seven days after receiving notice whether to represent the member.

(e) Upon the receipt of any report called for by this section, other than those reports of impaired persons licensed under this chapter required pursuant to the rules of the board, the board shall notify in writing, by certified mail, the person who is the subject of the report. The notification shall be made within thirty days of receipt by the board of the report.

The notification shall include a written notice setting forth the person's right to examine the report. Included in the notification shall be the address at which the file is maintained, the name of the custodian of the reports, and the telephone number at which the custodian may be reached. The person who is the subject of the report shall submit a written statement responding, clarifying, adding to, or proposing the amending of the report previously filed. The person who is the subject of the report shall also submit with the written statement any medical records related to the report. The statement and accompanying medical records shall become a permanent part of the file and must be received by the board no more than thirty days after the date on which the person was notified by the board of the existence of the original report.

The board shall review all reports received by it, together with any supporting information and responding statements submitted by persons who are the subject of reports. The review by the board shall be in a timely manner but in no event, shall the board's initial review of the material contained in each disciplinary file be less than sixty-one days nor more than one hundred eighty days after the receipt of the initial report by the board.

When the board makes its initial review of the materials contained within its disciplinary files, the board shall make a determination in writing as to whether there are sufficient facts to warrant further investigation or action. Failure to make a determination within the time provided shall be deemed to be a determination that there are not sufficient facts to warrant further investigation or action.

Should the board find that there are not sufficient facts to warrant further investigation, or action, the report shall be accepted for filing and the matter shall be deemed closed and the closure reported to the director of commerce and consumer affairs. The director shall then have thirty days to accept the board's decision or request further investigation. The director shall inform the board in writing of the decision to request further investigation, including the specific reasons for the decision. The individual or entity filing the original report or complaint and the person who is the subject of the report or complaint shall be notified in writing by the director of any final action on their report or complaint.

(f) The board shall prepare, on a timely basis, but in no event less than one every other month, a summary report of final actions taken upon disciplinary files maintained by the board. The summary reports shall be sent by the board to every health care facility licensed by the department of health, every professional association and society of persons licensed under this chapter functioning on a statewide basis in this State, the American Medical Association, the American Osteopathic Association, the American Chiropractic Association, all insurers providing professional liability insurance to persons licensed to practice medicine and surgery under this chapter in the State, or the Federation of State Medical Licensing Boards.

(g) Any violation of this section shall be a misdemeanor.

(h) If any person violates the provisions of this section, an action may be brought in the name of the people of the State, through the attorney general of the State, for an order enjoining the violation or for an order enforcing compliance with this section. Upon filing of a verified petition in the court, the court may issue a temporary restraining order without notice or bond and may preliminarily or permanently enjoin the violation, and if it is established that the person has violated or is violating the injunction, the court may punish the offender for contempt of court. Proceedings under this subsection shall be in addition to all other remedies and penalties provided for by this chapter.

§453-B Establishment of data repository. (a) There shall be established by the board of medical examiners a data repository that shall hold all data required under this section and any other law or rule that requires that information be reported to the board. The board shall collect the following information to create individual profiles on licensees, in a format created by the board that shall be available for dissemination to the public:

(1) A description of any criminal convictions for felonies and serious misdemeanors as determined by the board, within the most recent ten years. For the purposes of this subsection, a person shall be deemed to be convicted of a crime if the person pleaded guilty or if the person was found or adjudged guilty by a court of competent jurisdiction;

(2) A description of any charges to which a licensee pleads nolo contendere or where sufficient facts of guilt were found and the matter was continued without a finding by a court of competent jurisdiction;

(3) A description of any final board disciplinary actions within the most recent ten years;

(4) A description of any final disciplinary actions by licensing boards in other states within the most recent ten years;

(5) A description of revocation or involuntary restriction of hospital privileges for reasons related to competence or character that have been taken by the hospital's governing body or any other official of the hospital after procedural due process has been afforded, or the resignation from or nonrenewal of medical staff membership or the restriction of privileges at a hospital taken in lieu of or in settlement of a pending disciplinary case related to competence or character in that hospital. Only cases which have occurred within the most recent ten years shall be disclosed by the board to the public;

(6) All medical malpractice court judgments and all medical malpractice arbitration awards in which a payment is awarded to a complaining party during the most recent ten years and all settlements of medical malpractice claims in which a payment is made to a complaining party within the most recent ten years. Dispositions of paid claims shall be reported in a minimum of three graduated categories indicating the level of significance of the award or settlement. Information concerning paid medical malpractice claims shall be put in context by comparing an individual licensee's medical malpractice judgment awards and settlements to the experience of other physicians within the same specialty. Information concerning all settlements shall be accompanied by the following statement: "Settlement of a claim may occur for a variety of reasons which do not necessarily reflect negatively on the professional competence or conduct of the physician. A payment in settlement of a medical malpractice action or claim should not be construed as creating a presumption that medical malpractice has occurred." Nothing in this section shall be construed to limit or prevent the board from providing further explanatory information regarding the significance of categories in which settlements are reported.

(7) Names of medical schools and dates of graduation;

(8) Graduate medical education;

(9) Specialty board certification;

(10) Number of years in practice;

(11) Names of the hospitals where the licensee has privileges;

(12) Appointments to medical school faculties and indication as to whether a licensee has a responsibility for graduate medical education within the most recent ten years;

(13) Information regarding publications in peer-reviewed medical literature within the most recent ten years;

(14) Information regarding professional or community service activities and awards;

(15) Location of the licensee's primary practice setting;

(16) Identification of any translating services that may be available at the licensee's primary practice location;

(17) An indication of whether the licensee participates in the medicaid program.

(b) Pending malpractice claims shall not be disclosed by the board to the public. Nothing in this section shall be construed to prevent the board from investigating and disciplining a licensee on the basis of medical malpractice claims that are pending.

(c) The board shall provide individual licensees with a copy of their profiles prior to release to the public. A licensee shall be provided a reasonable time to correct factual inaccuracies that appear in such profile. A physician may elect to have the physician's profile omit certain information provided pursuant to subsection (a)(12) through (14), concerning academic appointments and teaching responsibilities, publication in peer-reviewed journals and professional and community service awards. In collecting information for the profiles and in disseminating the same, the board shall inform physicians that they may choose not to provide the information required pursuant to subsection (a)(12) through (14). For purposes of subsection (a), the method described in this subsection is to make the information involved available to the public, without charge, through the telecommunications medium known as the world wide web of the internet. The executive secretary, acting through the director of commerce and consumer affairs, shall provide for the establishment of a site on such medium, and shall update the information maintained through such medium not less frequently than monthly."

SECTION 2. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 3. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	3245
TWENTY-FOURTH LEGISLATURE, 2008
STATE OF HAWAII