HB2775

SECTION 1. The legislature finds that four states, including Colorado, Iowa, Minnesota, and Utah, have introduced legislation that establishes a voluntary framework for health care providers and health care facilities to offer compassionate, honest, timely, and thorough responses to patients who experience an adverse health care incident. This is called the candor process. By participating in a candor process, patients who have a health care adverse incident and their families are able to engage in open discussions with the health care providers and health care facilities involved in the incident. This process is intended to help patients and their families understand why the incident occurred and what is being done to prevent similar issues in the future. The candor process allows patients to help identify and implement procedures designed to improve patient safety and is designed to expedite the process of addressing an adverse outcome and offering patients compensation when warranted.

The legislature notes that the candor process established by this Act is not intended to limit a patient's ability to seek redress through the legal process. Patients can choose to withdraw from the candor process at any time and discussions and communications that occur during the candor process, including any offers of compensation, remain privileged and confidential. The legislature also notes that any offer of compensation under the candor process established by this Act does not constitute an admission of liability. In addition, if a patient chooses to accept an offer of compensation, a health care provider or health care facility may require a patient to sign a release of liability, so they cannot bring a subsequent lawsuit.

The purpose of this Act is to establish a candor process through which patients and their families, health care providers, and health care facilities can engage in open communication about how an adverse care health incident occurred, how it will be prevented in the future, and what compensation, if any, will be offered to the patient or their family.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

Candor Process

§ -1 Definitions. As used in this chapter, unless the context otherwise requires:

"Adverse health care incident" means an objective and definable outcome arising from or related to patient care that results in the death or physical injury of a patient.

"Health care provider" means a physician or osteopathic physician licensed under chapter 453; physician assistant licensed and practicing under a supervising physician pursuant to chapter 453; podiatrist licensed under chapter 463E; chiropractor licensed under chapter 442; advanced practice registered nurse, registered nurse, or licensed practical nurse licensed under chapter 457; dentist licensed under chapter 448; optometrist licensed under chapter 459; pharmacist licensed under chapter 461; or any other person who is licensed, certified, or otherwise authorized or permitted by state law to administer health care in the ordinary course of business or practice of a profession.

"Health care facility" has the same meaning as in section 323D-2.

"Open discussion" means all communications that are made under section ‑2. "Open discussion" includes all memoranda, work products, documents, and other materials that are prepared for or submitted in the course of or in connection with communications under section -2.

"Patient" means a person who receives medical care from a health care provider, or if the person is a minor, deceased, or incapacitated, the person's legal representative.

§ -2 Open discussions; requirements; notice. (a) If an adverse health care incident occurs in a health care facility, the health care provider, health care facility, or health care provider jointly with the health care facility, may provide the patient with written notice of the desire of the health care provider, health care facility, or health care provider jointly with the health care facility, to enter into an open discussion under this chapter. A health care facility may designate a person or class of persons who have authority to provide notice on behalf of the facility. If the health care provider or health care facility provides notice, the notice shall be sent within one year after the date on which the health care provider knew, or should have known through the exercise of due diligence, of the adverse health care incident.

(b) Written notice under this section shall include:

(1) The desire of the health care provider, or health care provider jointly with the health care facility, to proceed with an open discussion under this chapter;

(2) The patient's right to receive a copy of the medical records related to the adverse health care incident and the patient's right to authorize the release of the patient's medical records related to the adverse health care incident to any third party;

(3) The patient's right to seek legal counsel;

(4) A copy of section 657-7.3(a) and notice that the time for a patient to bring a lawsuit is limited under section 657-7.3(a) and shall not be extended by engaging in an open discussion under this chapter unless all parties agree to an extension in writing; and

(5) If the patient chooses to engage in an open discussion with the health care provider or health care facility, a statement that all communications made in the course of a discussion under this chapter, including communications regarding the initiation of an open discussion, shall be privileged and confidential; shall not be subject to discovery, subpoena, or other means of legal compulsion for release; and shall not be admissible in evidence in a judicial, administrative, or arbitration proceeding.

(c) If the patient agrees in writing to engage in an open discussion, the patient, health care provider, or health care facility may include other persons in the open discussion. Written notice shall be provided to any additional parties to the open discussion prior to the discussion that:

(1) All communications shall be privileged and confidential; shall not be subject to discovery, subpoena, or other means of legal compulsion for release; and shall not be admissible in evidence in a judicial, administrative, or arbitration proceeding; and

(2) Communications, memoranda, work products, documents, and other materials otherwise subject to discovery that were not prepared specifically for use in the open discussion shall not be confidential.

(d) The health care provider or health care facility that agrees to engage in an open discussion may:

(1) Investigate how the adverse health care incident occurred and gather information regarding the medical care or treatment provided;

(2) Disclose the results of the investigation into the adverse health care incident to the patient;

(3) Openly communicate to the patient the steps the health care provider or health care facility will take to prevent future occurrences of the adverse health care incident; or

(4) Make a determination that:

(A) No offer of compensation for the adverse health care incident is warranted and orally communicate that determination to the patient; or

(B) An offer of compensation for the adverse health care incident is warranted and extend an offer of compensation in writing to the patient.

(e) If a health care provider or health care facility makes an offer of compensation under subsection (d)(4) and the patient is not represented by legal counsel, the health care provider or health care facility shall advise the patient of the patient's right to seek legal counsel regarding the offer of compensation.

(f) A health care provider or health care facility may require any patient who accepts an offer of compensation under subsection (d)(4)(B) to sign a release of liability that bars the patient from bringing a subsequent lawsuit associated with the adverse health care incident that is the subject of the open discussion.

(g) Except for written offers of compensation under subsection (d)(4)(B), discussions between the health care provider or health care facility and the patient about the compensation offered under subsection (d)(4) shall remain oral.

§ -3 Confidentiality of open discussions. (a) Open discussion communications and offers of compensation made under section -2:

(1) Shall not constitute an admission of liability;

(2) Shall be privileged, confidential, and not be disclosed; and

(3) Shall not be:

(A) Admissible as evidence in any subsequent judicial, administrative, or arbitration proceeding;

(B) Subject to discovery, subpoena, or other means of legal compulsion for release; or

(b) Communications, memoranda, work products, documents, and other materials otherwise subject to discovery that were not prepared specifically for use in a discussion under section ‑2, shall not be confidential.

(c) The limitation on disclosure imposed by this section shall include disclosure during any discovery conducted as part of a subsequent adjudicatory proceeding. A court or other adjudicatory body shall not compel any person who engages in an open discussion under this chapter to disclose confidential communications or agreements made under section ‑2.

(d) This section does not affect any other law, rule, or requirement with respect to confidentiality.

§ -4 Payment and resolution. (a) A payment made to a patient pursuant to section -2 shall not be considered a payment resulting from a written claim or demand for payment.

(b) A health care provider or health care facility may require the patient, as a condition of an offer of compensation under section -2, to execute all documents and obtain any necessary court approval to resolve an adverse health care incident. The parties shall negotiate the form of such documents or obtain court approval as necessary."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 4. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	2775
THIRTY-SECOND LEGISLATURE, 2024
STATE OF HAWAII