BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 282 (Yee)
As Introduced
Hearing Date: May 7, 2013
Fiscal: No
Urgency: No
NR
SUBJECT
Confidential medical information: required authorization to
disclose
DESCRIPTION
Existing law requires that a pre-litigation demand for
settlement or offer to compromise issued on a patient's behalf
in any action arising out of the professional negligence of a
physician or surgeon be accompanied by an authorization to
disclose medical information, as specified, to the persons or
organizations insuring, responsible for, or defending the
professional liability of the physician or surgeon.
This bill would extend these provisions to require that the
authorization to disclose medical information also accompany a
demand for settlement or offer to compromise issued prior to the
service of a complaint in any action arising out of the
professional negligence of a person holding a valid license as a
marriage and family therapist.
BACKGROUND
The Confidentiality of Medical Information Act (CMIA) protects
the privacy of medical records by specifying how and to whom the
information they contain may be released. Under the CMIA, no
healthcare provider may disclose medical information without
first obtaining an authorization, except in specified
circumstances, including when compelled to do so by a party to a
proceeding before a court or administrative agency.
SB 1229 (Keene, Ch. 484, Stats. 1985) required that
(more)
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pre-litigation demands for settlement or offers to compromise
based on a physician's or surgeon's alleged professional
negligence be accompanied by an authorization to disclose to an
insurer any medical information necessary to investigate the
issue of liability and the extent of potential damages in
evaluating the merits of the demand. This bill would extend the
same requirement to prelitigation demands based on the alleged
professional negligence of a licensed marriage and family
therapist.
CHANGES TO EXISTING LAW
Existing law defines "medical information" to mean any
individually identifiable information, in electronic or physical
form, in possession of or derived from a provider of health
care, health care service plan, pharmaceutical company, or
contractor regarding a patient's medical history, mental or
physical condition, or treatment. Existing law defines
"individually identifiable" to mean that the medical information
includes or contains any element of personal identifying
information sufficient to allow identification of the
individual, such as the patient's name, address, electronic mail
address, telephone number, or social security number, or other
information that, alone or in combination with other publicly
available information, reveals the individual's identity. (Civ.
Code Sec. 56.05(g).)
Existing law provides that an authorization for the release of
medical information by a provider of health care, health care
service plan, pharmaceutical company, or contractor is valid
only if specified conditions are met, including:
the authorization is clearly separate from any other language
present on the same page and is executed by a signature which
serves no other purpose than to execute the authorization;
the authorization is signed and dated by the patient, the
patient's representative, or the spouse of the patient, as
specified;
the authorization states the specific uses and limitations on
the types of medical information to be disclosed;
the authorization states the name or functions of the provider
of health care, health care service plan, pharmaceutical
company, or contractor that may disclose the medical
information;
the authorization states the name or functions of the persons
or entities authorized to receive the medical information; and
the authorization states the specific uses and limitations on
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the use of the medical information by the persons or entities
authorized to receive the medical information. (Civ. Code Sec.
56.11.)
Existing law requires that whenever, prior to the service of a
complaint upon a defendant in an action arising out of the
professional negligence against a surgeon or physician, a demand
for settlement or offer to compromise is made on a patient's
behalf shall be accompanied by an authorization to disclose
medical information to persons or organizations insuring,
responsible for, or defending professional liability that the
physician or surgeon may incur. Existing law further provides
that the authorization shall authorize disclosure of information
which is necessary to investigate issues of liability and the
extent of potential damages in evaluating the merits of the
demand or offer. (Civ. Code Sec. 56.105.)
This bill would add licensed marriage and family therapists
(MFT) to the above provision, thus requiring that any settlement
demand or offer to compromise served on a MFT shall be
accompanied by an authorization to disclose medical information,
as specified.
COMMENT
1.Stated need for the bill
According to the author:
In the case that an [licensed marriage and family therapist]
LMFT is sued for malpractice there is currently no requirement
that the LMFT's insurer be granted access to the medical
records of the patient before a settlement is made. The
medical records are an essential element in determining
whether or not to agree to a settlement, and without the
information necessary to fully evaluate the claim it is unfair
to expect an insurer to respond to a claim in a timely manner.
2.Limited permissive release
This bill would require pre-litigation demands for settlement or
offers to compromise based on a marriage and family therapist's
(MFT) alleged professional negligence to be accompanied by an
authorization to disclose to an insurer any medical information
necessary to investigate the issue of liability and the extent
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of potential damages in evaluating the merits of the demand.
This would parallel existing law as applied to physicians and
surgeons.
The legal definitions of "health care providers" and "medical
information" encompass wide variety of practitioners and the
spectrum of information related to patients that practitioners
may hold. To that end, while physicians or surgeons who attend
to the physical wellbeing of patients are required to guard a
patient's privacy under the CMIA, mental health practitioners
who look to a patient's psychological and emotional wellbeing
are bound by the same laws. (See Civ. Code Sec. 56 et seq.)
Existing law, in relevant part, provides that with regards to a
prelitigation malpractice demand, the patient (or his or her
representative) must authorize the physician or surgeon to share
with his insurer the "information that is necessary to
investigate issues of liability and extent of potential damages
in evaluating the merits of the demand for settlement or offer
to compromise." (Civ. Code Sec. 56.105.)
Authorizations for medical disclosures under California law
require specific and limiting information in order to be valid.
These authorizations must specify the type of information to be
disclosed, who may disclose it, how it should be used, who may
receive it, and the entire document must be executed by a
signature which serves no other purpose than to execute the
authorization. Individuals or organizations who thus receive
the medical information, are subject to the same disclosure and
confidentiality restrictions as the original provider, plan, or
company.
Thus, the same protections that apply when a patient authorizes
disclosure with regards to a pre-litigation settlement demand or
offer to compromise based on the alleged professional negligence
of a surgeon or physician apply to the provisions of this bill
as well. In either situation, the patient, and his or her
representative, ultimately control what information is permitted
to be shared with the practitioner's insurance, for the limited
purpose of evaluating the merits of the demand. In the case of
a demand against a physician or surgeon, the medical information
may be related to prior injuries, preexisting conditions,
medications, or otherwise. In the case of a demand against a
marriage and family therapist (MFT), the medical information
would arguably be limited to the therapist's notes.
3.Facilitates fair settlements
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This bill would allow the insurers of MFTs to have access to
specified medical information when evaluating a pre-litigation
settlement demand or offer to compromise. This parallels
existing law, enacted by SB 1229 (Keene, Ch. 484, Stats. 1985),
which requires that necessary information is available to the
insurers of physicians and surgeons for the purposes of
evaluating a pre-litigation demand. In its analysis of SB 1229,
this Committee argued that comprehensive medical information is
often necessary to effectively evaluate settlement offers, and
thus requiring disclosure of specified medical information to
accompany settlement demands would allow more reasonable
settlement negotiations. (Sen. Com. on Judiciary, Analysis of
Sen. Bill No. 1229 (1985-86 Reg. Sess.) as amended May 15,
1895.) That assessment has not been proven inaccurate, as there
have been no attempts to amend the law enacted by SB 1229 since
its enactment in 1985.
Staff notes that the information needed to evaluate a
pre-litigation settlement demand or offer to compromise against
an MFT would, on its face, be very different than the
information needed to evaluate a claim against a physician.
Unlike medical malpractice claims where a practitioner's
treatment of physical ailments prevail, professional negligence
cases against MFTs typically involve a breach of
confidentiality. This may happen in high conflict family law
cases, where the therapist is accused of breaching of
confidentiality by one of the family members. Therapists are
also accused of professional negligence for creating a conflict
of interest by, for example, evaluating a clinical patient in a
separate custody action. There are also lawsuits stemming from
sexual relations with patients.
In support of this bill, the California Association of Marriage
and Family Therapists writes, "[existing law] should also apply
to clients who make claims against licensed Marriage and Family
Therapists, and other psychotherapists licensed under the
Healing Arts Section of the Business and Professions Code, so
that these practitioners have the freedom to work toward
resolving malpractice cases without fear of having to later
defend breach of confidentiality claims asserted by their
clients."
Support : American Association for Marriage and Family
Therapy-California Division
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Opposition : None Known
HISTORY
Source : California Association of Marriage and Family
Therapists
Related Pending Legislation : None Known
Prior Legislation : SB 1229 (Keene, Ch. 484, Stats. 1985) see
Background.
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