Chapter 803
AN ACT
SB 337
Relating to reports to health professional regulatory boards; creating
new provisions; amending ORS 30.265, 677.205, 677.415 and 742.400; and
declaring an emergency.
Be It Enacted by the People of
the State of
SECTION 1. ORS 742.400 is amended to read:
742.400. [(1) As used in this
section, “claim” means:]
[(a) A written request for payment for injury alleged to have been
caused by professional negligence that is made by or on behalf of the injured person
to an insurer; or]
[(b) A written notification to an insurer by an insured that a person
has requested payment from the insured for injury alleged to have been caused
by professional negligence.]
[(2) Any insurer that issues or underwrites professional liability
insurance in this state to any physician or podiatric physician and surgeon
licensed by the Board of Medical Examiners for the State of Oregon, to any
optometrist registered by the Oregon Board of Optometry, to any dentist or
dental hygienist licensed by the Oregon Board of Dentistry or to any naturopath
licensed by the Board of Naturopathic Examiners shall report any claim against
the insured for alleged professional negligence to the appropriate licensing
board within 30 days after receiving notice of the claim from the insured or
any other person.]
[(3) The report required by subsection (2) of this section shall be kept
confidential by all persons who make or receive it until the case is settled or
closed and shall include:]
[(a) The name of the insured;]
[(b) The name of the person making the claim;]
[(c) The reason or reasons for which the claim is made; and]
[(d) Any additional information the Director of the Department of
Consumer and Business Services considers necessary.]
[(4) Any insurer required to report to a board under this section shall
also be required to advise the appropriate licensing board of any settlements,
awards or judgments against a physician, optometrist, dentist or dental
hygienist or naturopath within 30 days after the date of the settlement, award
or judgment.]
[(5) The appropriate board shall provide copies of all reports required
by subsections (2) and (4) of this section to each health care facility
licensed under ORS 441.015 to 441.087, 441.525 to 441.595, 441.815, 441.820,
441.990, 442.342, 442.344 and 442.400 to 442.463 that employs or grants staff
privileges to the person against whom the claim was filed.]
(1) As used in this
section:
(a) “Claim” means a
written demand for payment from or on behalf of a covered practitioner for an
injury alleged to have been caused by professional negligence that is made in a
complaint filed with a court of appropriate jurisdiction.
(b) “Covered
practitioner” means a physician, podiatric physician and surgeon, physician
assistant, nurse practitioner, optometrist, dentist, dental hygienist or
naturopath.
(c) “Disposition of a
claim” means:
(A) A judgment or award
against the covered practitioner by a court, a jury or an arbitrator;
(B) A withdrawal or
dismissal of the claim; or
(C) A settlement of the
claim.
(d) “Reporter” means:
(A) A primary insurer;
(B) A public body
required to defend, save harmless and indemnify an officer, employee or agent
of the public body under ORS 30.260 to 30.300;
(C) An entity that self-insures
or indemnifies for claims alleging professional negligence on the part of a
covered practitioner; or
(D) A health maintenance
organization as defined in ORS 750.005.
(2) Within 30 days after
receiving notice of a claim, a reporter shall report the claim to the
appropriate board, as follows:
(a) The Board of Medical
Examiners if the covered practitioner is a physician, podiatric physician and
surgeon or physician assistant;
(b) The
(c) The
(d) The
(e) The Board of
Naturopathic Examiners if the covered practitioner is a naturopath.
(3) The report required
under subsection (2) of this section shall include:
(a) The name of the
covered practitioner;
(b) The name of the
person that filed the claim;
(c) The date on which
the claim was filed; and
(d) The reason or
reasons for the claim, except that the report may not disclose any data that is
privileged under ORS 41.675.
(4) Within 30 days after
the date of an action taken in disposition of a claim, a reporter shall notify
the appropriate board identified in subsection (2) of this section of the
disposition.
(5)(a) A board that
receives a report of a claim under this section shall publicly post the report
on the board’s website if the claim results in a judicial finding or admission
of liability or a money judgment, award or settlement that involves a payment
to the claimant. The board may not publicly post information about claims that
did not result in a judicial finding or admission of liability or a money
judgment, award or settlement that involves a payment to the claimant but shall
make the information available to the public upon request. The board shall
remove from the board’s website any record based on a reported claim against a
covered practitioner if the board does not receive another report of a claim
against the practitioner within four years after the date reported under
subsection (3)(c) of this section.
(b) If a board discloses
information about a claim that is the subject of a report received under this
section, the board shall indicate in the disclosure whether the claim resulted
in a judicial finding or an admission of liability or a money judgment, an
award or a settlement that involves a payment to the claimant. A board may not
publicly disclose or publish any allegations or factual assertions included in
the claim unless the complaint resulted in a judicial finding or an admission
of liability or a money judgment, an award or a settlement that involves a
payment to the claimant.
(c) For purposes of this
subsection, “judicial finding” means a finding of liability by a court, a jury
or an arbitrator.
(6) A board that
receives a report under this section shall provide copies of the report to each
health care facility licensed under ORS 441.015 to 441.087, 441.525 to 441.595,
441.815, 441.820, 441.990, 442.342, 442.344 and 442.400 to 442.463 that employs
or grants staff privileges to the covered practitioner.
(7) A person that
reports in good faith concerning any matter required to be reported under this
section is immune from civil liability by reason of making the report.
SECTION 2. ORS 677.415 is amended to read:
677.415. (1) As used in this section:
(a) “Health care
facility” means a facility licensed under ORS 441.015 to 441.087.
(b) “Official action[, incident or
event]” means a restriction, limitation, loss or denial of privileges of a
licensee to practice medicine, or any formal action taken against a
licensee by a government agency or a health care facility based on a finding of
medical incompetence, unprofessional conduct or licensee impairment[, or the withdrawal by a licensee from the
practice of medicine or podiatry].
(2) The Board of Medical
Examiners on [its] the board’s
own motion may investigate any evidence that appears to show that a licensee
licensed by the board is or may be medically incompetent or is or may be guilty
of unprofessional or dishonorable conduct or is or may be an impaired licensee
unable safely to engage in the practice of medicine or podiatry.
(3) A licensee licensed
by the Board of Medical Examiners, the Oregon Medical Association, Inc.,
or any component society thereof, the Osteopathic Physicians and Surgeons of
Oregon, Inc. or the Oregon Podiatric Medical Association shall report within 10
working days, and any other person may report, to the board any information
such licensee, association, society or person may have that appears to show
that a licensee is or may be medically incompetent or is or may be guilty of
unprofessional or dishonorable conduct or is or may be an impaired licensee unable
safely to engage in the practice of medicine or podiatry. However, a licensee
who is treating another licensee for a mental disability has a duty to report
within 10 working days the licensee patient unless, in the opinion of the
treating licensee, the patient is not impaired.
(4) A licensee shall
self-report within 10 working days any official action[, incident or event] taken against the
licensee.
(5) A health care
facility shall report to the Board of Medical Examiners any official action[, incident or
event] taken against a licensee within 10 business days of the date of the
official action[, incident or event].
(6) A licensee’s
voluntary withdrawal from the practice of medicine or podiatry, voluntary resignation
from the staff of a health care [institution]
facility or voluntary limitation of the licensee’s staff privileges at
such [an institution] a health
care facility shall be promptly reported to the Board of Medical
Examiners by the [institution]
health care facility and the licensee if [that] the licensee’s voluntary action occurs while the
licensee is under investigation by the [institution]
health care facility or a committee thereof for any reason related to
possible medical incompetence, unprofessional conduct or mental or physical
impairment.
(7)(a) A report made
in accordance with subsection (3) of this section shall contain:
(A) The name, title,
address and telephone number of the person making the report; and
(B) Information that
appears to show that a licensee is or may be medically incompetent, is or may
be guilty of unprofessional or dishonorable conduct or is or may be a licensee
with an impairment.
(b) The Board of Medical
Examiners may not require in a report made in accordance with subsection (5) or
(6) of this section more than:
(A) The name, title,
address and telephone number of the licensee making the report or the name,
address and telephone number of the health care facility making the report;
(B) The date of an
official action taken against the licensee or the licensee’s voluntary action
under subsection (6) of this section; and
(C) A description of the
official action or the licensee’s voluntary action, as appropriate to the
report, including:
(i) The specific
restriction, limitation, suspension, loss or denial of the licensee’s medical
staff privileges and the effective date or term of the restriction, limitation,
suspension, loss or denial; or
(ii) The fact that the
licensee has voluntarily withdrawn from the practice of medicine or podiatry, voluntarily resigned from the staff of a health
care facility or voluntarily limited the licensee’s privileges at a health care
facility and the effective date of the withdrawal, resignation or limitation.
(c) The Board of Medical
Examiners may not require in a report made in accordance with subsection (4) of
this section more than:
(A) The name, title,
address and telephone number of the licensee making the report; and
(B) The specific
restriction, limitation, suspension, loss or denial of the licensee’s staff
privileges and the effective date or term of the restriction, limitation,
suspension, loss or denial.
(8) A report made in
accordance with this section may not include any data that is privileged under
ORS 41.675.
[(7)] (9) If, in the opinion of the Board of Medical Examiners,
it appears that information provided to it under this section is or may be
true, the board may order an informal interview with the licensee subject to
the notice requirement of ORS 677.320.
(10)(a) A health care
facility’s failure to report an official action as required under subsection
(5) of this section constitutes a violation of this section. The health care
facility is subject to a penalty of not more than $10,000 for each violation.
The Board of Medical Examiners may impose the penalty in accordance with ORS
183.745 and, in addition to the penalty, may assess reasonable costs the board
incurs in enforcing the requirements of this section against the health care
facility if the enforcement results in the imposition of a civil penalty.
(b) The Attorney General
may bring an action in the name of the State of
(c) A civil penalty
assessed or recovered in accordance with this subsection shall be paid to the
State Treasury and the State Treasurer shall credit the amount of the payment
to the Rural Health Services Fund established under ORS 442.570.
[(8)] (11) A person who reports in good faith to the Board of
Medical Examiners as required by this section is immune from civil liability by
reason of making the report.
SECTION 3. ORS 677.205 is amended to read:
677.205. (1) The Board
of Medical Examiners for the State of Oregon may discipline as provided in this
section any person licensed, registered or certified under this chapter who
has:
(a) Admitted the facts
of a complaint filed in accordance with ORS 677.200 (1) alleging facts which
establish that such person is in violation of one or more of the grounds for
suspension or revocation of a license as set forth in ORS 677.190;
(b) Been found to be in
violation of one or more of the grounds for disciplinary action of a licensee
as set forth in this chapter; [or]
(c) Had an automatic
license suspension as provided in ORS 677.225[.]; or
(d) Failed to make a
report as required under ORS 677.415.
(2) In disciplining a
licensee as authorized by subsection (1) of this section, the board may use any
or all of the following methods:
(a) Suspend judgment.
(b) Place the licensee
on probation.
(c) Suspend the license.
(d) Revoke the license.
(e) Place limitations on
the license.
(f) Take such other
disciplinary action as the board in its discretion finds proper, including
assessment of the costs of the disciplinary proceedings as a civil penalty or
assessment of a civil penalty not to exceed [$5,000] $10,000, or both.
(3) In addition to the
action authorized by subsection (2) of this section, the board may temporarily
suspend a license without a hearing, simultaneously with the commencement of
proceedings under ORS 677.200 if the board finds that evidence in its
possession indicates that a continuation in practice of the licensee
constitutes an immediate danger to the public.
(4) If the board places
any licensee on probation as set forth in subsection (2)(b)
of this section, the board may determine, and may at any time modify, the
conditions of the probation and may include among them any reasonable condition
for the purpose of protection of the public or for the purpose of the rehabilitation
of the probationer, or both. Upon expiration of the term of probation, further
proceedings shall be abated if the licensee has complied with the terms of the
probation.
(5) If a license issued
under this chapter is suspended, the holder of the license may not practice
during the term of suspension. Upon the expiration of the term of suspension,
the license shall be reinstated by the board if the conditions for which the
license was suspended no longer exist.
(6) The board shall
enter each case of disciplinary action on its records.
(7) Civil penalties
under this section shall be imposed as provided in ORS 183.745.
SECTION 4. ORS 30.265 is amended to read:
30.265. (1) Subject to
the limitations of ORS 30.260 to 30.300, every public body is subject to action
or suit for its torts and those of its officers, employees and agents acting
within the scope of their employment or duties, whether arising out of a
governmental or proprietary function or while operating a motor vehicle in a
ridesharing arrangement authorized under ORS 276.598. The sole cause of action
for any tort of officers, employees or agents of a public body acting within
the scope of their employment or duties and eligible for representation and
indemnification under ORS 30.285 or 30.287 shall be an action against the
public body only. The remedy provided by ORS 30.260 to 30.300 is exclusive of
any other action or suit against any such officer, employee or agent of a
public body whose act or omission within the scope of the officer’s, employee’s
or agent’s employment or duties gives rise to the action or suit. No other form
of civil action or suit shall be permitted. If an action or suit is filed
against an officer, employee or agent of a public body, on appropriate motion
the public body shall be substituted as the only defendant. Substitution of
the public body as the defendant does not exempt the public body from making
any report required under ORS 742.400.
(2) Every public body is
immune from liability for any claim for injury to or death of any person or
injury to property resulting from an act or omission of an officer, employee or
agent of a public body when such officer, employee or agent is immune from
liability.
(3) Every public body
and its officers, employees and agents acting within the scope of their
employment or duties, or while operating a motor vehicle in a ridesharing
arrangement authorized under ORS 276.598, are immune from liability for:
(a) Any claim for injury
to or death of any person covered by any workers’ compensation law.
(b) Any claim in
connection with the assessment and collection of taxes.
(c) Any claim based upon
the performance of or the failure to exercise or perform a discretionary
function or duty, whether or not the discretion is abused.
(d) Any claim that is
limited or barred by the provisions of any other statute, including but not
limited to any statute of ultimate repose.
(e) Any claim arising
out of riot, civil commotion or mob action or out of any act or omission in
connection with the prevention of any of the foregoing.
(f) Any claim arising
out of an act done or omitted under apparent authority of a law, resolution,
rule or regulation that is unconstitutional, invalid or inapplicable except to
the extent that they would have been liable had the law, resolution, rule or
regulation been constitutional, valid and applicable, unless such act was done
or omitted in bad faith or with malice.
(4) Subsection (1) of
this section applies to any action of any officer, employee or agent of the
state relating to a nuclear incident, whether or not the officer, employee or
agent is acting within the scope of employment, and provided the nuclear
incident is covered by an insurance or indemnity agreement under 42 U.S.C.
2210.
(5) Subsection (3)(c) of
this section does not apply to any discretionary act that is found to be the
cause or partial cause of a nuclear incident covered by an insurance or
indemnity agreement under the provisions of 42 U.S.C. 2210, including but not
limited to road design and route selection.
SECTION 5. (1) The amendments to ORS 742.400 by section
1 of this 2007 Act apply to claims received on or after the effective date of
this 2007 Act.
(2) The amendments to
ORS 677.205 and 677.415 by sections 2 and 3 of this 2007 Act apply to health
care facilities licensed under ORS 441.015 to 441.087, to licensees licensed by
the Board of Medical Examiners, the Oregon Medical Association, Inc. or any
component society thereof, the Osteopathic Physicians and Surgeons of Oregon,
Inc. or the Oregon Podiatric Medical Association on or after the effective date
of this 2007 Act and to any person licensed, registered or certified under ORS
chapter 677 on or after the effective date of this 2007 Act.
(3) The amendments to
ORS 30.265 by section 4 of this 2007 Act apply to public bodies on and after
the effective date of this 2007 Act.
SECTION 6. This 2007 Act being necessary for the
immediate preservation of the public peace, health and safety, an emergency is
declared to exist, and this 2007 Act takes effect on its passage.
Approved by the Governor July 17, 2007
Filed in the office of Secretary of State July 19, 2007
Effective date July 17, 2007
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