BILL ANALYSIS Ó
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
Page 2
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
SB 282
Page 3
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.
SB 282
Page 4
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