BILL ANALYSIS Ó 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) SB 282 (Yee) Page 2 of ? 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 SB 282 (Yee) Page 3 of ? 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 SB 282 (Yee) Page 4 of ? 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 SB 282 (Yee) Page 5 of ? 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 SB 282 (Yee) Page 6 of ? 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. **************