BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 282
                                                                  Page  1

          Date of Hearing:  June 18, 2013

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                   SB 282 (Yee) - As Introduced: February 14, 2013

                                  PROPOSED CONSENT

           SENATE VOTE  :  37-0
           
          SUBJECT  :  Confidential Medical Information: DISCLOSURE

           KEY ISSUE  :  Should a PRe-LItIGATION offer to settle or  
          compromise a CLAIM of professional negligence against a marriage  
          and family therapist be accompanied by an authorization to  
          disclose RELEVANT medical information, as is now required in  
          claims against doctors and surgeons? 

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS

          California's Confidential Medical Information Act (CMIA)  
          prohibits, subject to certain exemptions, the disclosure of a  
          person's medical information without that person's prior  
          authorization.  Existing law requires that such an authorization  
          accompany any demand for settlement or offer to compromise a  
          medical malpractice suit, if the demand or offer is made prior  
          to the service of a complaint.  The rationale for this existing  
          requirement is that the defending professional should have  
          access to any information that is relevant and necessary to  
          investigate the extent of liability and damages so as to better  
          evaluate the merits of the demand for settlement or offer to  
          compromise.  The existing requirement only applies to demands or  
          offers made prior to the service of the complaint because, once  
          a complaint has been filed, the information may be obtained  
          through discovery.  Currently, this requirement only applies  
          professional negligence allegations against a licensed physician  
          or surgeon.  This bill, which is sponsored by the California  
          Association of Marriage and Family Therapists, would extend this  
          same requirement to professional negligence claims against a  
          licensed marriage or family therapist.  According to the author  
          and sponsor, therapists, like doctors, are subject to  
          professional negligence actions and medical information (which  








                                                                  SB 282
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          is defined to include mental health information under CMIA) is  
          often relevant to considering whether to accept a settlement or  
          compromise offer.  In short, the same logic that justifies the  
          existing requirement would also justify the proposed extension  
          made by this bill.  There is no known opposition to this bill,  
          which did not receive a single negative committee or floor vote  
          in the Senate.  

           SUMMARY  :   Extends a provision in existing law that requires any  
          pre-service demand for settlement or offer to compromise in a  
          claim of professional negligence against a certified physician  
          or surgeon to be accompanied by an authorization to disclose  
          medical information, as specified, to any demand or offer in a  
          claim of professional negligence against a marriage and family  
          therapist.



           
          EXISTING LAW  :  

          1)Prohibits a health care provider, health care service plan, or  
            contractor from disclosing medical information regarding a  
            patient, enrollee, or subscriber without first obtaining an  
            authorization, subject to certain mandatory and permissive  
            exemptions, as enumerated.  (Civil Code Section 56.10 (a) -  
            (c).)
             
          2)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.  (Civil Code Section 56.05  
            (g).)

          3)Requires that a demand for settlement or an offer to  
            compromise issued on a patient's behalf prior to the service  
            of a complaint in an action arising out of the professional  
            negligence of a certified physician or surgeon be accompanied  
            by an authorization to disclose medical information to the  
            persons or organizations insuring, responsible for, or  
            defending the professional liability that the physician or  
            surgeon may incur.  Specifies that the authorization will  
            authorize disclosure of that information that is necessary to  








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            investigate issues of liability and extent of potential  
            damages in evaluating the merits of the demand for settlement  
            or offer to compromise.  (Civil Code Section 56.105.) 

          4)Requires disclosure of medical information if the disclosure  
            is compelled by a party to a proceeding before a court or  
            administrative process pursuant to a subpoena or any provision  
            authorizing discovery in a proceeding before a court or  
            administrative agency.  (Civil Code Section 56.10 (b)(3).) 
                
           COMMENTS  :  According to the author, this bill will provide an  
          important legal protection to marriage and family therapists  
          similar to that currently enjoyed by physicians and surgeons.   
          Specifically, when a patient presents to the therapist a demand  
          for settlement or offer to compromise in a professional  
          negligence action, that demand or offer must be accompanied by  
          an authorization to disclose relevant medical information.   
          California's Confidential Medical Information Act (CMIA)  
          prohibits, subject to certain exemptions, the disclosure of a  
          person's medical information without that person's prior  
          authorization.  However, existing law requires such an  
          authorization to accompany any demand for settlement or offer to  
          compromise in any allegation of medical malpractice, so long as  
          the demand or offer is made prior to service of a complaint.   
          The rationale for this existing requirement is that the  
          defending professional - and the professional's insurer --  
          should have access to any information that is relevant and  
          necessary to investigate the extent of liability and damages, so  
          as to better evaluate the merits of the demand for settlement or  
          offer to compromise.  This provision only applies to demands or  
          offers made prior to service of a complaint because, once the  
          complaint is served, a party may seek this information through  
          discovery.  (Civil Code Section 56.10 (b)(3).)  Currently, this  
          authorization requirement only applies to professional  
          negligence claims against a certified physician or surgeon.  

          This bill, which is sponsored by the California Association of  
          Marriage and Family Therapists, would extend this same  
          requirement to professional negligence claims against a licensed  
          marriage or family therapist.  According to the author and  
          sponsor, therapists, like doctors, are subject to professional  
          negligence actions and medical information (which is defined to  
          include mental health information under CMIA) is often relevant  
          to considering whether to accept a settlement or compromise  
          offer.








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           ARGUMENTS IN SUPPORT  :  The California Division of the American  
          Association of Marriage and Family Therapists supports this bill  
          because it "provides an important legal protection for marriage  
          and family therapists [MFT], allowing the MFT's malpractice  
          insurer to review information from the patient's records,  
          evaluate the patient's claims, and respond in a timely and  
          appropriate manner, when the patient presents a demand for  
          settlement or offer to compromise."

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California Association of Marriage and Family Therapists  
          (sponsor)
           
            Opposition 
           
          None on file 

           Analysis Prepared by  :   Thomas Clark / JUD. / (916) 319-2334