SB2777 93RD GENERAL ASSEMBLY

LRB093 20838 LCB 46766 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
SB2777

Introduced 2/5/2004, by Kirk W. Dillard

SYNOPSIS AS INTRODUCED:

See Index

Creates the Loan Repayment Assistance for Physicians Act. Requires that the Department of Public Health establish an educational loan repayment assistance program for physicians who practice in Illinois. Provides that for each year that a qualified applicant practices full-time as a physician, the Department shall, subject to appropriation, award a grant to that person in an amount equal to the amount in educational loans that the person must repay that year. Provides that the total amount in grants that a person may be awarded shall not exceed $25,000. Amends the Department of Public Health Powers and Duties Law of the Civil Administrative Code of Illinois. Requires the Department of Public Health to award grants to all practicing physicians (instead of only to physicians offering obstetrical medical services in rural areas) for the purpose of reimbursing the costs of obtaining malpractice insurance. Requires the Department to establish reasonable conditions, standards, and duties relating to the grants. Amends the Illinois Public Aid Code. Provides for an increase in the rates paid to every vendor of goods or services under the Medicaid program so that those rates are equal to the rates paid to such vendors under Medicare. Provides for implementation of the rate increase over a 3-year period. Amends the Code of Civil Procedure. Limits attorney's fees in individual actions to $1,000,000 including expenses. Changes the standards that the court shall apply to determine if a witness qualifies as an expert witness as follows: (i) requires the court to determine whether the witness is board certified or board eligible in the same medical specialties as the defendant and is familiar with the same medical problems or the type of treatment administered in the case (instead of the same relationship of the medical specialties of the witness to the medical problem and the type of treatment in the case); (ii) requires the court to determine whether the witness has devoted 75% (instead of a substantial portion) of his or her working hours to the practice of medicine, teaching, or university based research in relation to the medical care and type of treatment at issue; and (iii) requires the court to determine whether the witness is licensed by any state or the District of Columbia (instead of just licensed). Amends the Illinois Good Samaritan Act. Provides that the immunity for civil damages provided for services performed without compensation at free medical clinics also applies to physicians and other health care professionals that provide medical treatment, diagnosis, or advice at federally qualified health care centers without fee or compensation. Makes various other changes in other Acts concerning health care. Effective immediately.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT in relation to health care delivery and civil actions, which may be referred to as the Medical Liability Crisis and Access to Care Law of 2004.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

ARTICLE 1

Section 1-1. Short title. This Act may be cited as the Loan Repayment Assistance for Physicians Act.

Section 1-5. Definitions. The purpose of this Act is to establish a program in the Department of Public Health to increase the total number of physicians in this State by providing educational loan repayment assistance grants to physicians.

Section 1-10. Definitions. In this Act, unless the context otherwise requires:

"Department" means the Department of Public Health.

"Educational loans" means higher education student loans that a person has incurred in attending a registered professional physician education program.

"Physician" means a person licensed under the Medical Practice Act of 1987 to practice medicine in all of its branches.

"Program" means the educational loan repayment assistance program for physicians established by the Department under this Act.

Section 1-15. Establishment of program. The Department shall establish an educational loan repayment assistance program for physicians who practice in Illinois. The Department shall administer the program and make all necessary and proper rules not inconsistent with this Act for the program's effective implementation. The Department may use up to 5% of the appropriation for this program for administration and promotion of physician incentive programs.

Section 1-20. Application. Beginning July 1, 2004, the Department shall, each year, consider applications for assistance under the program. The form of application and information required to be set forth in the application shall be determined by the Department, and the Department shall require applicants to submit with their applications such supporting documents as the Department deems necessary.

Section 1-25. Eligibility. To be eligible for assistance under the program, an applicant must meet all of the following qualifications:

(1) He or she must be a citizen or permanent resident of the United States.

(2) He or she must be a resident of Illinois.

(3) He or she must be practicing full-time in Illinois as a physician.

(4) He or she must currently be repaying educational loans.

(5) He or she must agree to continue to practice full-time in Illinois for 3 years.

Section 1-30. The award of grants. Under the program, for each year that a qualified applicant practices full-time in Illinois as a physician, the Department shall, subject to appropriation, award a grant to that person in an amount equal to the amount in educational loans that the person must repay that year. However, the total amount in grants that a person may be awarded under the program shall not exceed $25,000. The Department shall require recipients to use the grants to pay off their educational loans.

Section 1-35. Penalty. Loan repayment recipients who fail to practice full-time in Illinois for 3 years shall repay the Department a sum equal to 3 times the amount received under the program.

ARTICLE 5

Section 5-1. To comply with House and Senate rules, the matter that is added to the law by this Public Act is underscored and the matter that is deleted from the law is stricken. The amendatory changes made by Public Act 89-7, which has been declared unconstitutional by the Illinois Supreme Court, are not included in the text of the provisions that are amended by this Public Act.

Section 5-2. Legislative findings. The General Assembly finds that:

1. Illinois is in the midst of a medical malpractice insurance crisis of unprecedented magnitude.

2. Illinois is among the states with the highest medical malpractice insurance premiums in the nation.

3. Medical Malpractice insurance in Illinois is unavailable or unaffordable for many hospitals and physicians.

4. The high and increasing cost of medical malpractice insurance in Illinois is causing health care providers to eliminate or reduce the provision of medical care throughout the State.

5. The crisis is discouraging medical students from choosing Illinois as the place they will receive their medical education and practice medicine.

6. The increase in medical malpractice liability insurance rates is forcing physicians to practice medicine without professional liability insurance, to leave Illinois, to not perform high-risk procedures, or to retire early from the practice of medicine.

7. The high and increasing cost of medical malpractice insurance is due in large part to the inefficiency and unpredictability of adjudicating claims through the civil justice system.

8. Much of this inefficiency stems from the time and resources needlessly spent on valuing uncertain and unpredictable claims of medical negligence.

9. The public would benefit by making medical liability coverage for hospitals and physicians more affordable, which would make health care more available.

Section 5-5. The Illinois Civil Administrative Code is amended by changing Section 2310-220 as follows:

(20 ILCS 2310/2310-220) (was 20 ILCS 2310/55.73)

Sec. 2310-220. Findings; medical rural obstetrical care. The General Assembly finds that substantial areas of rural Illinois lack adequate access to medical obstetrical care. The primary cause of this problem is the absence of qualified practitioners who are willing to offer medical obstetrical services. A significant barrier to recruiting and retaining those practitioners is the high cost of professional liability insurance for practitioners offering medical obstetrical care.

Therefore, the Department, from funds appropriated for that purpose, shall award grants to physicians licensed to practice medicine in all its branches practicing obstetrics in Illinois rural designated shortage areas, as defined in Section 3.04 of the Family Practice Residency Act, for the purpose of reimbursing those physicians for the costs of obtaining malpractice insurance relating to medical obstetrical services. The Department shall establish reasonable conditions, standards, and duties relating to the application for and receipt of the grants.

(Source: P.A. 91-239, eff. 1-1-00.)

Section 5-10. The Illinois Insurance Code is changed by adding Section 155.18a as follows:

(215 ILCS 5/155.18a new)

Sec. 155.18a. Professional Liability Insurance Resource Center.

(a) The Director of Insurance shall establish a Professional Liability Insurance Resource Center on the World Wide Web containing the following information:

(1) Names, address, and telephone numbers of all licensed companies providing professional liability insurance for health care professionals and health care providers including but not limited to hospitals, nursing homes, physicians, and dentists. Computer links to company websites shall be included, if available.

(2) Names, addresses and telephone numbers of all licensed brokers who provide access to professional liability insurance for health care professionals and health care providers including but not limited to hospitals, nursing homes, physicians, and dentists. Computer links to company websites shall be included, if available.

(b) The Department of Insurance shall conduct and publish an annual study of the impact of this amendatory Act of the 93rd General Assembly by county on the following:

(1) The number of medical malpractice claims filed and amounts recovered per claim.

(2) The amounts of economic and non-economic damages awarded per case.

(3) The amount of plaintiff and defense attorney fees paid per case.

(4) The impact of the provisions of this amendatory Act of the 93rd General Assembly on the cost and availability of healing art malpractice coverage for hospitals and physicians.

(5) Every 2 years the Director of Insurance shall make recommendations to the Governor, the Speaker of the House, and the President of the Senate on changes in the law necessary to maintain affordable and accessible professional liability insurance.

Section 5-15. The Illinois Public Aid Code is amended by adding Section 5-5.25 as follows:

(305 ILCS 5/5-5.25 new)

Sec. 5-5.25. Rate increase to Medicare rate level. Notwithstanding any other provision of this Code, the Department of Public Aid shall increase the rates paid to every vendor of goods or services provided to recipients of medical assistance under this Article so that the rate paid under this Article for each such item or service is equal to the rate paid to a vendor of such goods or services under the Medicare program. The Department shall implement this rate increase over a period of 3 years so that one-third of the increase is applied for State fiscal year 2005, 50% of the remaining balance is applied for State fiscal year 2006, and the entire amount of the remaining balance is applied for State fiscal year 2007. Thereafter, the rates paid under this Article shall equal the rates paid under the Medicare program.

Section 5-20. The Health Care Arbitration Act is amended by changing Sections 8 and 9 as follows:

(710 ILCS 15/8) (from Ch. 10, par. 208)

Sec. 8. Conditions. Every health care arbitration agreement shall be subject to the following conditions:

(a) The agreement is not a condition to the rendering of health care services by any party and the agreement has been executed by the recipient of health care services at the inception of or during the term of provision of services for a specific cause by either a health care provider or a hospital; and

(b) The agreement is a separate instrument complete in itself and not a part of any other contract or instrument; and

(c) The agreement may not limit, impair, or waive any substantive rights or defenses of any party, including the statute of limitations; and

(d) The agreement shall not limit, impair, or waive the procedural rights to be heard, to present material evidence, to cross-examine witnesses, and to be represented by an attorney, or other procedural rights of due process of any party.

(e) As a part of the discharge planning process the patient or, if appropriate, members of his family must be given a copy of the health care arbitration agreement previously executed by or for the patient and shall re-affirm it. Failure to comply with this provision during the discharge planning process shall void the health care arbitration agreement.

(Source: P.A. 80-1012.)

(710 ILCS 15/9) (from Ch. 10, par. 209)

Sec. 9. Mandatory Provisions.

(a) Every health care arbitration agreement shall be clearly captioned "Health Care Arbitration Agreement".

(b) Every health care arbitration agreement in relation to health care services rendered during hospitalization shall specify the date of commencement of hospitalization. Every health care arbitration agreement in relation to health care services not rendered during hospitalization shall state the specific cause for which the services are provided.

(c) Every health care arbitration agreement may be cancelled by any signatory (1) within 60 days of its execution or within 60 days of the date of the patient's discharge from the hospital, or last date of treatment, whichever is later, as to an agreement in relation to health care services rendered during hospitalization, provided, that if executed other than at the time of discharge of the patient from the hospital, the health care arbitration agreement be reaffirmed at the time of the discharge planning process in the same manner as provided for in the execution of the original agreement; or (2) within 60 days of the date of its execution, or the last date of treatment by the health care provider, whichever is later, as to an agreement in relation to health care services not rendered during hospitalization. Provided, that no health care arbitration agreement shall be valid after 10 2 years from the date of its execution. An employee of a hospital or health care provider who is not a signatory to an agreement may cancel such agreement as to himself until 30 days following his notification that he is a party to a dispute or issue on which arbitration has been demanded pursuant to such agreement. If any person executing a health care arbitration agreement dies before the period of cancellation as outlined above, the personal representative of the decedent shall have the right to cancel the health care arbitration agreement within 60 days of the date of his appointment as the legal representative of the decedent's estate. Provided, that if no legal representative is appointed within 6 months of the death of said decedent the next of kin of such decedent shall have the right to cancel the health care arbitration agreement within 8 months from the date of death.

(d) Every health care arbitration agreement shall contain immediately above the signature lines, in upper case type in printed letters of at least 3/16 inch height, a caption and paragraphs as follows:

"AGREEMENT TO ARBITRATE HEALTH CARE

NEGLIGENCE CLAIMS

NOTICE TO PATIENT

YOU CANNOT BE REQUIRED TO SIGN THIS AGREEMENT IN ORDER TO RECEIVE TREATMENT. BY SIGNING THIS AGREEMENT, YOUR RIGHT TO TRIAL BY A JURY OR A JUDGE IN A COURT WILL BE BARRED AS TO ANY DISPUTE RELATING TO INJURIES THAT MAY RESULT FROM NEGLIGENCE DURING YOUR TREATMENT OR CARE, AND WILL BE REPLACED BY AN ARBITRATION PROCEDURE.

THIS AGREEMENT MAY BE CANCELLED WITHIN 60 DAYS OF SIGNING OR 60 DAYS AFTER YOUR HOSPITAL DISCHARGE OR 60 DAYS AFTER YOUR LAST HEALTH CARE SERVICE MEDICAL TREATMENT IN RELATION TO HEALTH CARE SERVICES NOT RENDERED DURING HOSPITALIZATION.

THIS AGREEMENT PROVIDES THAT ANY CLAIMS WHICH MAY ARISE OUT OF YOUR HEALTH CARE WILL BE SUBMITTED TO A PANEL OF ARBITRATORS, RATHER THAN TO A COURT FOR DETERMINATION. THIS AGREEMENT REQUIRES ALL PARTIES SIGNING IT TO ABIDE BY THE DECISION OF THE ARBITRATION PANEL."

(e) an executed copy of the AGREEMENT TO ARBITRATE HEALTH CARE CLAIMS and any reaffirmation of that agreement as required by this Act shall be given to the patient during the time of the discharge planning process or at the time of discharge after last date of treatment.

(Source: P.A. 91-156, eff. 1-1-00.)

Section 5-25. The Code of Civil Procedure is amended by changing Sections 2-622, 2-1107.1, 2-1109, 2-1702, 2-1704, 8-802, 8-1901, 8-2501, and 13-217 and by adding Sections 2-625 and 8-2505 as follows:

(735 ILCS 5/2-622) (from Ch. 110, par. 2-622)

(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held unconstitutional)

Sec. 2-622. Healing art malpractice.

(a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:

1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) meets the minimum requirements set forth in 8-2501; and (iv) is qualified by experience or demonstrated competence in the subject of the case; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional's review and consultation that there is a reasonable and meritorious cause for filing of such action. If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatrist, a psychologist, or a naprapath, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice medicine in all its branches. In either event, the affidavit must identify the profession of the reviewing health professional. A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional's determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit, but information which would identify the reviewing health professional may be deleted from the copy so attached. The report shall include the name and address of the reviewing health professional and documentation of compliance with requirements set forth in 8-2501. Any reviewing health professional that provides a frivolous or improper review of a case shall be liable to each of the parties for the reasonable costs and attorneys' fees the parties expended in resolving the case. A review shall be found frivolous if it is substantially lacking in factual support, is based upon a standard of care or practice that lacks substantial use in the relevant specialty or field of practice, or is made for an improper purpose, such as to harass or cause needless increase in the cost of litigation.

2. That the plaintiff has not previously voluntarily dismissed an action based upon the same or substantially the same acts, omissions, or occurrences and that the affiant was unable to obtain a consultation required by paragraph 1 because a statute of limitations would impair the action and the consultation required could not be obtained before the expiration of the statute of limitations. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint. No additional 90 day extensions shall be granted. The defendant shall be excused from answering or otherwise pleading until 30 days after being served with a certificate required by paragraph 1.

3. That a request has been made by the plaintiff or his attorney for examination and copying of records pursuant to Part 20 of Article VIII of this Code and the party required to comply under those Sections has failed to produce such records within 60 days of the receipt of the request. If an affidavit is executed pursuant to this paragraph, the certificate and written report required by paragraph 1 shall be filed within 90 days following receipt of the requested records. All defendants except those whose failure to comply with Part 20 of Article VIII of this Code is the basis for an affidavit under this paragraph shall be excused from answering or otherwise pleading until 30 days after being served with the certificate required by paragraph 1.

(b) Where a certificate and written report are required pursuant to this Section a separate certificate and written report shall be filed as to each defendant who has been named in the complaint and shall be filed as to each defendant named at a later time.

(c) Where the plaintiff intends to rely on the doctrine of "res ipsa loquitur", as defined by Section 2-1113 of this Code, the certificate and written report must state that, in the opinion of the reviewing health professional, negligence has occurred in the course of medical treatment. The affiant shall certify upon filing of the complaint that he is relying on the doctrine of "res ipsa loquitur".

(d) When the attorney intends to rely on the doctrine of failure to inform of the consequences of the procedure, the attorney shall certify upon the filing of the complaint that the reviewing health professional has, after reviewing the medical record and other relevant materials involved in the particular action, concluded that a reasonable health professional would have informed the patient of the consequences of the procedure.

(e) Allegations and denials in the affidavit, made without reasonable cause and found to be untrue, shall subject the party pleading them or his attorney, or both, to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with reasonable attorneys' fees to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal. In no event shall the award for attorneys' fees and expenses exceed those actually paid by the moving party, including the insurer, if any. In proceedings under this paragraph (e), the moving party shall have the right to depose and examine any and all reviewing health professionals who prepared reports used in conjunction with an affidavit required by this Section.

(f) A reviewing health professional who in good faith prepares a report used in conjunction with an affidavit required by this Section shall have civil immunity from liability which otherwise might result from the preparation of such report.

(g) The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619.

(h) This Section does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date.

(i) This amendatory Act of 1997 does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date.

(j) This amendatory Act of 93rd General Assembly does not apply to or affect any actions pending at the time of its effective date, but applies to cases filed on or after its effective date.

(Source: P.A. 86-646; 90-579, eff. 5-1-98.)

(735 ILCS 5/2-625 new)

Sec. 2-625. Health care claims based upon apparent or ostensible agency. In any action against a hospital or hospital affiliate arising out of the provision of health care in which the plaintiff seeks damages for any loss, bodily injury, or death, in a claim based upon apparent or ostensible agency, a party must allege with specific facts and prove the following:

(1) that the alleged principal through its own action or conduct created the reasonable inference by the plaintiff that the alleged agent was authorized to act on behalf of the alleged principal;

(2) that the plaintiff reasonably relied upon the alleged principal's action or conduct suggesting that the alleged agent was the alleged principal's actual agent; and

(3) that a reasonable person would not have sought goods or services from the alleged principal if that person knew that the alleged agent was not the alleged principal's actual agent.

A plaintiff basing a claim upon apparent or ostensible agency must prove these elements by a preponderance of the evidence.

(735 ILCS 5/2-1107.1) (from Ch. 110, par. 2-1107.1)

(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held unconstitutional)

Sec. 2-1107.1. Jury instruction in tort actions. In all actions on account of bodily injury or death or physical damage to property based on negligence, or product liability based on strict tort liability, the court shall instruct the jury in writing, to the extent that it is true, that any award of compensatory damages will not be taxable under federal or State income tax law and that the defendant shall be found not liable if the jury finds that the contributory fault of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought.

This amendatory Act of the 93rd General Assembly applies to causes of action filed on or after its effective date.

(Source: P.A. 84-1431.)

(735 ILCS 5/2-1109) (from Ch. 110, par. 2-1109)

(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held unconstitutional)

Sec. 2-1109. Itemized verdicts.

(a) In every case where damages for bodily injury or death to the person are assessed by the jury the verdict shall be itemized so as to reflect the monetary distribution, if any, among economic loss and non-economic loss, if any, and, in healing art medical malpractice cases, further itemized so as to reflect the distribution of economic loss by category, such itemization of economic loss by category to include: (a) amounts intended to compensate for reasonable expenses which have been incurred, or which will be incurred, for necessary medical, surgical, x-ray, dental, or other health or rehabilitative services, drugs, and therapy; (b) amounts intended to compensate for lost wages or loss of earning capacity; and (c) all other economic losses claimed by the plaintiff or granted by the jury. Each category of economic loss shall be further itemized into amounts intended to compensate for losses which have been incurred prior to the verdict and amounts intended to compensate for future losses which will be incurred in the future.

(b) In all actions on account of bodily injury or death based on negligence, including healing art malpractice actions, the following terms have the following meanings:

(i) "Economic loss" or "economic damages" means all damages that are tangible, such as damages for past and future medical expenses, loss of income or earnings and other property loss.

(ii) "Non-economic loss" or "non-economic damages" means damages that are intangible, including but not limited to damages for pain and suffering, disability, disfigurement, loss of consortium, and loss of society.

(iii) "Compensatory damages" or "actual damages" are the sum of economic and non-economic damages.

(c) Nothing in this Section shall be construed to create a cause of action.

(d) This amendatory Act of the 93rd General Assembly applies to causes of action filed on or after its effective date.

(Source: P.A. 84-7.)

(735 ILCS 5/2-1702) (from Ch. 110, par. 2-1702)

(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held unconstitutional)

Sec. 2-1702. Economic/Non-Economic Loss. As used in this Part, "economic loss" and "non-economic loss" have the same meanings as in Section 2-1109(b). :

(a) "Economic loss" means all pecuniary harm for which damages are recoverable.

(b) "Non-economic loss" means loss of consortium and all nonpecuniary harm for which damages are recoverable, including, without limitation, damages for pain and suffering, inconvenience, disfigurement, and physical impairment.

(Source: P.A. 84-7.)

(735 ILCS 5/2-1704) (from Ch. 110, par. 2-1704)

Sec. 2-1704. Healing art malpractice Medical Malpractice Action. As used in this Code Part, "healing art medical malpractice action" means any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice including but not limited to medical, nursing, dental, or podiatric malpractice. The term "healing art" shall not include care and treatment by spiritual means through prayer in accord with the tenets and practices of a recognized church or religious denomination.

(Source: P.A. 84-7.)

(735 ILCS 5/8-802) (from Ch. 110, par. 8-802)

Sec. 8-802. Healthcare practitioner Physician and patient. No physician, or surgeon, psychologist, nurse, mental health worker, therapist, or other healing art practitioner (referred to in this Section as "healthcare practitioner") shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve the patient, except only (1) in trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide, (2) in actions, civil or criminal, against the healthcare practitioner physician for malpractice, (3) with the expressed consent of the patient, or in case of his or her death or disability, of his or her personal representative or other person authorized to sue for personal injury or of the beneficiary of an insurance policy on his or her life, health, or physical condition, (4) in all actions brought by or against the patient, his or her personal representative, a beneficiary under a policy of insurance, or the executor or administrator of his or her estate wherein the patient's physical or mental condition is an issue, (4.1) in all actions brought against the patient, his or her personal representative, a beneficiary under a policy of insurance, or the executor or administrator of his or her estate wherein the patient's physical or mental condition is an issue, (5) upon an issue as to the validity of a document as a will of the patient, (6) in any criminal action where the charge is either first degree murder by abortion, attempted abortion or abortion, (7) in actions, civil or criminal, arising from the filing of a report in compliance with the Abused and Neglected Child Reporting Act, (8) to any department, agency, institution or facility which has custody of the patient pursuant to State statute or any court order of commitment, (9) in prosecutions where written results of blood alcohol tests are admissible pursuant to Section 11-501.4 of the Illinois Vehicle Code, (10) in prosecutions where written results of blood alcohol tests are admissible under Section 5-11a of the Boat Registration and Safety Act, or (11) in criminal actions arising from the filing of a report of suspected terrorist offense in compliance with Section 29D-10(p)(7) of the Criminal Code of 1961.

A health care practitioner shall have the right to: (i) communicate at any time and in any fashion with his or her own counsel and professional liability insurer concerning any care or treatment he or she provided, or assisted in providing, to any patient; and (ii) communicate at any time and in any fashion with his or her present or former employer, principal, partner, professional corporation, professional liability insurer, or counsel for the same, concerning care or treatment he or she provided, or assisted in providing, to any patient during the pendency and within the scope of his or her employment or affiliation with the employer, principal, partner, or professional corporation.

In the event of a conflict between the application of this Section and the Mental Health and Developmental Disabilities Confidentiality Act to a specific situation, the provisions of the Mental Health and Developmental Disabilities Confidentiality Act shall control.

This amendatory Act of the 93rd General Assembly applies to causes of action filed on or after its effective date.

(Source: P.A. 87-803; 92-854, eff. 12-5-02.)

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

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

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

(b) Any expression of grief, apology, remedial action, or explanation provided by a health care provider, including, but not limited to, a statement that the health care provider is "sorry" for the outcome to a patient, the patient's family, or the patient's legal representative about an inadequate or unanticipated treatment or care outcome that is provided within 72 hours of when the provider knew or should have known of the potential cause of such outcome shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency, or person. The disclosure of any such information, whether proper, or improper, shall not waive or have any effect upon its confidentiality, nondiscoverability, or inadmissibility. The disclosure of the information for the purpose of bringing a claim for damages against a provider is unlawful and any person convicted of violating any of the provisions of this Section is guilty of a Class A misdemeanor. As used in this Section, a "health care provider" is any hospital, nursing home or other facility, or employee or agent thereof, a physician, or other licensed health care professional. Nothing in this Section precludes the discovery or admissibility of any other facts regarding the patient's treatment or outcome as otherwise permitted by law.

(Source: P.A. 82-280.)

(735 ILCS 5/8-2501) (from Ch. 110, par. 8-2501)

(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held unconstitutional)

Sec. 8-2501. Expert Witness Standards. In any case in which the standard of care applicable to given by a medical professional profession is at issue, the court shall apply the following standards to determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care.

(a) Whether the witness is board certified or board eligible in the same medical specialties as the defendant and is familiar with the same Relationship of the medical specialties of the witness to the medical problem or problems, or and the type of treatment administered in the case;

(b) Whether the witness has devoted 75% a substantial portion of his or her working hours time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue which gave rise to the medical problem of which the plaintiff complains;

(c) whether the witness is licensed by a state or the District of Columbia in the same profession as the defendant; and

(d) whether, in the case against a nonspecialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in this State.

An expert shall provide proof of active practice, teaching, or engaging in university-based research. If retired, an expert must provide proof of attendance and completion of continuing education courses for 3 years previous to giving testimony. An expert who has not actively practiced, taught, or been engaged in university-based research for 10 years may not be qualified as an expert witness.

This amendatory Act of the 93rd General Assembly applies to causes of action filed on or after its effective date.

(Source: P.A. 84-7.)

(735 ILCS 5/8-2505 new)

Sec. 8-2505. Preservation of emergency medical care.

(a) The General Assembly acknowledges many hospitals and physicians provide great benefits to the citizens of Illinois by operating emergency departments and trauma centers and providing services to individuals in need of emergency care throughout the State, without regard to their ability to pay for such care and often without payment for services. The General Assembly also acknowledges many hospitals and physicians are discontinuing their status as trauma centers or reducing the scope of their emergency care due to the fear of lawsuits based on claims of healing art malpractice. The public and society in general will suffer if these trauma centers cease operations or hospital emergency departments reduce their level of emergency care.

(b) Any physician licensed to practice medicine in all its branches under the Medical Practice Act of 1987, any licensed hospital and any of the hospital's employees, agents, apparent agents, and independent contractors, who, in good faith provides emergency care or services to a person who is in need of emergency health care services or treatment and has presented to a hospital for emergency health care services, shall not be liable for civil damages as a result of his, her, or its acts or omissions, except for willful or wanton misconduct on the part of the physician, the hospital, or any of the hospital's employees, independent contractors, agents, or apparent agents in providing the care.

(735 ILCS 5/13-217) (from Ch. 110, par. 13-217)

(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held unconstitutional)

Sec. 13-217. Reversal or dismissal. In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff, his or her heirs, executors or administrators may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or entered against the plaintiff, or after the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue. No action that is voluntarily dismissed by the plaintiff or dismissed for want of prosecution by the court may be filed where the time for commencing the action has expired.

This amendatory Act of the 93rd General Assembly applies to causes of action accruing on or after its effective date.

(Source: P.A. 87-1252.)

Section 5-30. The Mental Health and Developmental Disabilities Confidentiality Act is amended by changing Sections 9 and 10 as follows:

(740 ILCS 110/9) (from Ch. 91 1/2, par. 809)

(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held unconstitutional)

Sec. 9. Therapist's disclosure without consent. In the course of providing services and after the conclusion of the provision of services, a therapist may disclose a record or communications without consent to:

(1) the therapist's supervisor, a consulting therapist, members of a staff team participating in the provision of services, a record custodian, or a person acting under the supervision and control of the therapist;

(2) persons conducting a peer review of the services being provided;

(3) the Institute for Juvenile Research and the Institute for the Study of Developmental Disabilities;

(4) an attorney or advocate consulted by a therapist or agency which provides services concerning the therapist's or agency's legal rights or duties in relation to the recipient and the services being provided; and

(5) the Inspector General of the Department of Children and Family Services when such records or communications are relevant to a pending investigation authorized by Section 35.5 of the Children and Family Services Act where:

(A) the recipient was either (i) a parent, foster parent, or caretaker who is an alleged perpetrator of abuse or neglect or the subject of a dependency investigation or (ii) a non-ward victim of alleged abuse or neglect, and

(B) available information demonstrates that the mental health of the recipient was or should have been an issue to the safety of the child.

In the course of providing services, a therapist may disclose a record or communications without consent to any department, agency, institution or facility which has custody of the recipient pursuant to State statute or any court order of commitment.

Information may be disclosed under this Section only to the extent that knowledge of the record or communications is essential to the purpose for which disclosure is made and only after the recipient is informed that such disclosure may be made. A person to whom disclosure is made under this Section shall not redisclose any information except as provided in this Act.

Notwithstanding any other provision of this Section, a therapist has the right to communicate at any time and in any fashion with his or her counsel or professional liability insurance carrier, or both, concerning any care or treatment he or she provided, or assisted in providing, to any recipient. A therapist has the right to communicate at any time and in any fashion with his or her present or former employer, principal, partner, professional corporation, or professional liability insurance carrier, or counsel for any of those entities, concerning any care or treatment he or she provided, or assisted in providing, to the recipient within the scope of his or her employment, affiliation, or other agency with the employer, principal, partner, or professional corporation.

This amendatory Act of the 93rd General Assembly applies to causes of action filed on or after its effective date.

(Source: P.A. 86-955; 90-512, eff. 8-22-97.)

(740 ILCS 110/10) (from Ch. 91 1/2, par. 810)

Sec. 10. Disclosure in civil, criminal, and other proceedings.

(a) Except as provided herein, in any civil, criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient's record or communications.

(1) Records and communications may be disclosed in a civil, criminal or administrative proceeding in which the recipient introduces his mental condition or any aspect of his services received for such condition as an element of his claim or defense, if and only to the extent the court in which the proceedings have been brought, or, in the case of an administrative proceeding, the court to which an appeal or other action for review of an administrative determination may be taken, finds, after in camera examination of testimony or other evidence, that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is demonstrably unsatisfactory as evidence of the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm. Except in a criminal proceeding in which the recipient, who is accused in that proceeding, raises the defense of insanity, no record or communication between a therapist and a recipient shall be deemed relevant for purposes of this subsection, except the fact of treatment, the cost of services and the ultimate diagnosis unless the party seeking disclosure of the communication clearly establishes in the trial court a compelling need for its production. However, for purposes of this Act, in any action brought or defended under the Illinois Marriage and Dissolution of Marriage Act, or in any action in which pain and suffering is an element of the claim, mental condition shall not be deemed to be introduced merely by making such claim and shall be deemed to be introduced only if the recipient or a witness on his behalf first testifies concerning the record or communication.

(2) Records or communications may be disclosed in a civil proceeding after the recipient's death when the recipient's physical or mental condition has been introduced as an element of a claim or defense by any party claiming or defending through or as a beneficiary of the recipient, provided the court finds, after in camera examination of the evidence, that it is relevant, probative, and otherwise clearly admissible; that other satisfactory evidence is not available regarding the facts sought to be established by such evidence; and that disclosure is more important to the interests of substantial justice than protection from any injury which disclosure is likely to cause.

(3) In the event of a claim made or an action filed by a recipient, or, following the recipient's death, by any party claiming as a beneficiary of the recipient for injury caused in the course of providing services to that such recipient, the therapist and other persons whose actions are alleged to have been the cause of injury may disclose pertinent records and communications to an attorney or attorneys engaged to render advice about and to provide representation in connection with such matter and to persons working under the supervision of such attorney or attorneys, and may testify as to pertinent such records or communications communication in any administrative, judicial or discovery proceeding for the purpose of preparing and presenting a defense against the such claim or action.

(3.1) A therapist has the right to communicate at any time and in any fashion with his or her own counsel or professional liability insurance carrier, or both, concerning any care or treatment he or she provided, or assisted in providing, to any patient.

(3.2) A therapist has the right to communicate at any time and in any fashion with his or her present or former employer, principal, partner, professional corporation, or professional liability insurance carrier, or counsel for any of those entities, concerning any care or treatment he or she provided, or assisted in providing, to any patient within the scope of his or her employment, affiliation, or other agency with the employer, principal, partner, or professional corporation.

(4) Records and communications made to or by a therapist in the course of examination ordered by a court for good cause shown may, if otherwise relevant and admissible, be disclosed in a civil, criminal, or administrative proceeding in which the recipient is a party or in appropriate pretrial proceedings, provided such court has found that the recipient has been as adequately and as effectively as possible informed before submitting to such examination that such records and communications would not be considered confidential or privileged. Such records and communications shall be admissible only as to issues involving the recipient's physical or mental condition and only to the extent that these are germane to such proceedings.

(5) Records and communications may be disclosed in a proceeding under the Probate Act of 1975, to determine a recipient's competency or need for guardianship, provided that the disclosure is made only with respect to that issue.

(6) Records and communications may be disclosed when such are made during treatment which the recipient is ordered to undergo to render him fit to stand trial on a criminal charge, provided that the disclosure is made only with respect to the issue of fitness to stand trial.

(7) Records and communications of the recipient may be disclosed in any civil or administrative proceeding involving the validity of or benefits under a life, accident, health or disability insurance policy or certificate, or Health Care Service Plan Contract, insuring the recipient, but only if and to the extent that the recipient's mental condition, or treatment or services in connection therewith, is a material element of any claim or defense of any party, provided that information sought or disclosed shall not be redisclosed except in connection with the proceeding in which disclosure is made.

(8) Records or communications may be disclosed when such are relevant to a matter in issue in any action brought under this Act and proceedings preliminary thereto, provided that any information so disclosed shall not be utilized for any other purpose nor be redisclosed except in connection with such action or preliminary proceedings.

(9) Records and communications of the recipient may be disclosed in investigations of and trials for homicide when the disclosure relates directly to the fact or immediate circumstances of the homicide.

(10) Records and communications of a deceased recipient may be disclosed to a coroner conducting a preliminary investigation into the recipient's death under Section 3-3013 of the Counties Code. However, records and communications of the deceased recipient disclosed in an investigation shall be limited solely to the deceased recipient's records and communications relating to the factual circumstances of the incident being investigated in a mental health facility.

(11) Records and communications of a recipient shall be disclosed in a proceeding where a petition or motion is filed under the Juvenile Court Act of 1987 and the recipient is named as a parent, guardian, or legal custodian of a minor who is the subject of a petition for wardship as described in Section 2-3 of that Act or a minor who is the subject of a petition for wardship as described in Section 2-4 of that Act alleging the minor is abused, neglected, or dependent or the recipient is named as a parent of a child who is the subject of a petition, supplemental petition, or motion to appoint a guardian with the power to consent to adoption under Section 2-29 of the Juvenile Court Act of 1987.

(12) Records and communications of a recipient may be disclosed when disclosure is necessary to collect sums or receive third party payment representing charges for mental health or developmental disabilities services provided by a therapist or agency to a recipient; however, disclosure shall be limited to information needed to pursue collection, and the information so disclosed may not be used for any other purposes nor may it be redisclosed except in connection with collection activities. Whenever records are disclosed pursuant to this subdivision (12), the recipient of the records shall be advised in writing that any person who discloses mental health records and communications in violation of this Act may be subject to civil liability pursuant to Section 15 of this Act or to criminal penalties pursuant to Section 16 of this Act or both.

(b) Before a disclosure is made under subsection (a), any party to the proceeding or any other interested person may request an in camera review of the record or communications to be disclosed. The court or agency conducting the proceeding may hold an in camera review on its own motion, except that this provision does not apply to paragraph (3.1) of subsection (a) regarding consultations between a therapist and his or her own counsel or professional liability insurance carrier or paragraph (3.2) of subsection (a) regarding consultations between a therapist and his or her employer, principal, partner, professional corporation, or professional liability insurance carrier, or counsel for any of those entities. When, contrary to the express wish of the recipient, the therapist asserts a privilege on behalf and in the interest of a recipient, the court may require that the therapist, in an in camera hearing, establish that disclosure is not in the best interest of the recipient. The court or agency may prevent disclosure or limit disclosure to the extent that other admissible evidence is sufficient to establish the facts in issue, except that a court may not prevent or limit disclosures between a therapist and his or her own counsel or between a therapist and his or her employer, principal, partner, professional corporation, or professional liability insurance carrier, or counsel for any of those entities. The court or agency may enter such orders as may be necessary in order to protect the confidentiality, privacy, and safety of the recipient or of other persons. Any order to disclose or to not disclose shall be considered a final order for purposes of appeal and shall be subject to interlocutory appeal.

(c) A recipient's records and communications may be disclosed to a duly authorized committee, commission or subcommittee of the General Assembly which possesses subpoena and hearing powers, upon a written request approved by a majority vote of the committee, commission or subcommittee members. The committee, commission or subcommittee may request records only for the purposes of investigating or studying possible violations of recipient rights. The request shall state the purpose for which disclosure is sought.

The facility shall notify the recipient, or his guardian, and therapist in writing of any disclosure request under this subsection within 5 business days after such request. Such notification shall also inform the recipient, or guardian, and therapist of their right to object to the disclosure within 10 business days after receipt of the notification and shall include the name, address and telephone number of the committee, commission or subcommittee member or staff person with whom an objection shall be filed. If no objection has been filed within 15 business days after the request for disclosure, the facility shall disclose the records and communications to the committee, commission or subcommittee. If an objection has been filed within 15 business days after the request for disclosure, the facility shall disclose the records and communications only after the committee, commission or subcommittee has permitted the recipient, guardian or therapist to present his objection in person before it and has renewed its request for disclosure by a majority vote of its members.

Disclosure under this subsection shall not occur until all personally identifiable data of the recipient and provider are removed from the records and communications. Disclosure under this subsection shall not occur in any public proceeding.

(d) No party to any proceeding described under paragraphs (1), (2), (3), (4), (7), or (8) of subsection (a) of this Section, nor his or her attorney, shall serve a subpoena seeking to obtain access to records or communications under this Act unless the subpoena is accompanied by a written order issued by a judge, authorizing the disclosure of the records or the issuance of the subpoena. No person shall comply with a subpoena for records or communications under this Act, unless the subpoena is accompanied by a written order authorizing the issuance of the subpoena or the disclosure of the records.

(e) When a person has been transported by a peace officer to a mental health facility, then upon the request of a peace officer, if the person is allowed to leave the mental health facility within 48 hours of arrival, excluding Saturdays, Sundays, and holidays, the facility director shall notify the local law enforcement authority prior to the release of the person. The local law enforcement authority may re-disclose the information as necessary to alert the appropriate enforcement or prosecuting authority.

(f) A recipient's records and communications shall be disclosed to the Inspector General of the Department of Human Services within 10 business days of a request by the Inspector General in the course of an investigation authorized by the Abused and Neglected Long Term Care Facility Residents Reporting Act and applicable rule. The request shall be in writing and signed by the Inspector General or his or her designee. The request shall state the purpose for which disclosure is sought. Any person who knowingly and willfully refuses to comply with such a request is guilty of a Class A misdemeanor.

This amendatory Act of the 93rd General Assembly applies to causes of action filed on or after its effective date.

(Source: P.A. 91-726, eff. 6-2-00; 92-358, eff. 8-15-01; 92-708, eff. 7-19-02.)

Section 5-35. The Wrongful Death Act is amended by changing Section 1 as follows:

(740 ILCS 180/1) (from Ch. 70, par. 1)

(Text of Section WITHOUT the changes made by P.A. 89-7, which has been held unconstitutional)

Sec. 1. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. No action may be brought under this Act if the decedent had brought a cause of action with respect to the same underlying incident or occurrence that was settled or on which judgment was rendered.

This amendatory Act of the 93rd General Assembly applies only to causes of action accruing on or after its effective date.

(Source: Laws 1853, p. 97.)

Section 5-40. The Good Samaritan Act is amended by changing Section 30 as follows:

(745 ILCS 49/30)

Sec. 30. Free medical clinic; exemption from civil liability for services performed without compensation.

(a) A person licensed under the Medical Practice Act of 1987, a person licensed to practice the treatment of human ailments in any other state or territory of the United States, or a health care professional, including but not limited to an advanced practice nurse, physician assistant, nurse, pharmacist, physical therapist, podiatrist, or social worker licensed in this State or any other state or territory of the United States, who, in good faith, provides medical treatment, diagnosis, or advice as a part of the services of an established free medical clinic providing care to medically indigent patients which is limited to care that does not require the services of a licensed hospital or ambulatory surgical treatment center and who receives no fee or compensation from that source shall not be liable for civil damages as a result of his or her acts or omissions in providing that medical treatment, except for willful or wanton misconduct.

(b) For purposes of this Section, a "free medical clinic" is an organized community based program providing medical care without charge to individuals unable to pay for it, at which the care provided does not include the use of general anesthesia or require an overnight stay in a health-care facility.

(c) The provisions of subsection (a) of this Section do not apply to a particular case unless the free medical clinic has posted in a conspicuous place on its premises an explanation of the exemption from civil liability provided herein.

(d) The immunity from civil damages provided under subsection (a) also applies to physicians, hospitals, and other health care providers that provide further medical treatment, diagnosis, or advice to a patient upon referral from an established free medical clinic without fee or compensation. The immunity for civil damages provided under subsection (a) also applies to physicians and other health care professionals that provide medical treatment, diagnosis, or advice at federally qualified health care centers without fee or compensation.

(e) Nothing in this Section prohibits a free medical clinic from accepting voluntary contributions for medical services provided to a patient who has acknowledged his or her ability and willingness to pay a portion of the value of the medical services provided.

(f) Any voluntary contribution collected for providing care at a free medical clinic shall be used only to pay overhead expenses of operating the clinic. No portion of any moneys collected shall be used to provide a fee or other compensation to any person licensed under Medical Practice Act of 1987.

(Source: P.A. 89-607, eff. 1-1-97; 90-742, eff. 8-13-98.)

ARTICLE 90

Section 90-90. Severability. If any provision of this Act, including both the new and the amendatory provisions, or its application to any person or circumstance is held invalid, the invalidity of that provision or application does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application.

ARTICLE 99

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