2012 -- S 2523 SUBSTITUTE A

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LC00969/SUB A/2

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO COURTS AND CIVIL PROCEDURE - PROCEDURE GENERALLY -

EVIDENCE

     Introduced By: Senators McCaffrey, and Lynch

     Date Introduced: February 16, 2012

     Referred To: Senate Judiciary

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 9-19-27 of the General Laws in Chapter 9-19 entitled "Evidence" is

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hereby amended to read as follows:

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     9-19-27. Evidence of charges for medical and hospital services and for prescriptions

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and orthopedic appliances -- Evidence required from hospital medical records. – (a) This

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section is enacted primarily to relieve physicians and the other medical professionals defined

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herein who are associated with hospitals and other health care facilities from the hardship and

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inconvenience of attending court as witnesses, therefore in interpreting this section and the

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medical records exception to the hearsay rules of evidence in court or other related proceedings,

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the trial courts of this state shall liberally construe this section to admit what is presumptively

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reliable medical evidence presented by way of this statutory process without the necessity of

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calling numerous medical personnel as witnesses.

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     (b) In any proceeding commenced in any court, commission, or agency, an itemized bill

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and reports, whether originating within this state or any other state, including hospital or health

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care facility, medical records, relating to medical, dental, hospital services, prescriptions, or

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orthopedic appliances rendered to or prescribed for a person injured, and/or any report of any

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examination of the injured person, including, but not limited to, hospital medical records and

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written statements made by the physician or dentist whether contemporaneous with the treatment

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or not, subscribed and sworn to under the penalties of perjury by the physician, dentist, or

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authorized agent of the hospital or health care facility rendering the services or by the pharmacist

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or retailer of orthopedic appliances, shall be admissible as evidence of the fair and reasonable

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charge for the services and/or the necessity of the services or treatment, the diagnosis of the

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physician or dentist, the prognosis of the physician or dentist; the opinion of the physician or

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dentist as to proximate cause of the condition so diagnosed, and the opinion of the physician or

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dentist as to disability, or incapacity or permanency, if any, proximately resulting from the

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condition so diagnosed; and, provided. Such affidavit may incorporate by reference such other

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records or written statements as are relied upon by the affiant in reaching the opinions set forth in

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the affidavit, if of a type reasonably and customarily relied upon by such providers, and which

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shall thereby provide the necessary foundation for the record relied upon to be independently

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introduced as an exhibit in accordance with the terms herein.

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     The authorized agent of the hospital or health care facility shall be deemed the proper

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agent to subscribe and swear to said written statements contained in its medical records as the

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authorized agent for physicians employed by said hospital or clinic, and rendering treatment to

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the patient during the course of his or her employment. Said records shall not be deemed

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inadmissible because the physician so employed by the hospital or health care facility has not

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subscribed to the affidavit.

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     Provided, further, that written notice of the intention to offer the bill or report as such

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evidence, together with a copy thereof, has been given to the opposing party or parties, or to his

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or her or their attorneys, by mailing the notice by certified mail, return receipt requested, not less

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than ten (10) days before the introduction of the bill or report into evidence, and that an affidavit

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of the notice and the return receipt is filed with the clerk of the court forthwith after the receipt

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has been returned. Nothing contained in this section shall be construed to limit the right of any

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party to the action to summon or depose, at his or her own expense, the physician, dentist,

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pharmacist, retailer of orthopedic appliances, or agent of the hospital for the purpose of cross

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examination with respect to the bill, record, and report or to rebut the contents thereof, or for any

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other purpose, nor to limit the right of any party to the action to summon or depose any other

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person to testify in respect to the bill, record, and/or report or for any other purpose.

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     The adverse party shall be entitled at the expense of the proponent of the affidavit to a

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reasonable opportunity for cross-examination, not to exceed one hour at the office of the

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physician or other expert witness. Additional time for cross-examination shall be at the adverse

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party’s expense. The expert witness fee provided by the proponent of the expert and the

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additional fee, if required on the part of the adverse party, may be included in the costs of the case

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payable to the prevailing party. The time and method of the payment or taxing of such costs shall

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be subject to the order of the trial court.

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      (c)(b) The words "physician", and "dentist" shall not include any person who is not

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licensed to practice as such under the laws of the jurisdiction within which the services were

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rendered, but shall include chiropodists, chiropractors, optometrists, osteopaths, physical

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therapists, psychologists, and other medical paramedics or rescue or emergency medical service

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personnel or ambulating services and other medical, mental health care or social work personnel

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licensed to practice under title 5 or under the laws of the jurisdiction within which the services

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were rendered; provided, that said chiropodists, chiropractors, optometrists, osteopaths, physical

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therapists, psychologists, and other medical, mental health care, or social work personnel

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subscribes to said statements designating his or her licensure, and specifying his or her authority

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to subscribe in said capacity.

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      (d)(c) The word "hospital" shall mean any hospital required to incorporate under title 7,

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or which is in any way licensed or regulated by the laws of any other state, or by the laws and

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regulations of the United States, including hospitals of the veterans’ administration or similar type

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institutions, whether incorporated or not.

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     (e) The words “health care facility” includes those entities referred to in subdivision 23-

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17-2(6) except to the extent that paramedic or rescue or emergency medical service personnel or

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ambulatory service are excluded.

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      (f)(d) Any party objecting to the admitting into evidence of the affidavit shall file an

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objection specifying the grounds thereof within ten (10) days of receipt of the affidavit, or said

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objections are waived.

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     (g) Consistent with federal and state constitutional and statutory guarantees nothing in

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this section shall be construed so as to limit the right of a defendant in a criminal case to confront

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and cross examine witnesses.

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     (h) These provisions shall not apply to claims for personal injury or wrongful death filed

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against a licensed physician, hospital, clinic, health maintenance organization, professional

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service corporation providing health care services, dentist, or dental hygienist based on

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professional negligence.

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     SECTION 2. Chapter 9-19 of the General Laws entitled "Evidence" is hereby amended

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by adding thereto the following section:

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     9-19-27.2. Evidence of charges required from hospitals for medical records, hospital

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services and for prescriptions and orthopedic appliances - Applicable to claims against

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medical providers. – (a) In any proceeding commenced in any court, commission, or agency, an

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itemized bill and reports, whether originating within this state or any other state, including

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hospital medical records, relating to medical, dental, hospital services, prescriptions, or

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orthopedic appliances rendered to or prescribed for a person injured, and/or any report of any

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examination of the injured person, including, but not limited to, hospital medical records

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subscribed and sworn to under the penalties of perjury by the physician, dentist, or authorized

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agent of the hospital rendering the services or by the pharmacist or retailer of orthopedic

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appliances, shall be admissible as evidence of the fair and reasonable charge for the services

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and/or the necessity of the services or treatment, the diagnosis of the physician or dentist, the

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prognosis of the physician or dentist; the opinion of the physician or dentist as to proximate cause

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of the condition so diagnosed, and the opinion of the physician or dentist as to disability or

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incapacity, if any, proximately resulting from the condition so diagnosed; and, provided, further,

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that written notice of the intention to offer the bill or report as such evidence, together with a

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copy thereof, has been given to the opposing party or parties, or to his or her or their attorneys, by

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mailing the notice by certified mail, return receipt requested, not less than ten (10) days before the

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introduction of the bill or report into evidence, and that an affidavit of the notice and the return

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receipt is filed with the clerk of the court forthwith after the receipt has been returned. Nothing

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contained in this section shall be construed to limit the right of any party to the action to summon

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or depose, at his or her own expense, the physician, dentist, pharmacist, retailer of orthopedic

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appliances, or agent of the hospital for the purpose of cross examination with respect to the bill,

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record, and report or to rebut the contents thereof, or for any other purpose, nor to limit the right

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of any party to the action to summon or depose any other person to testify in respect to the bill,

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record, and/or report or for any other purpose.

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      (b) The words "physician", and "dentist" shall not include any person who is not licensed

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to practice as such under the laws of the jurisdiction within which the services were rendered, but

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shall include chiropodists, chiropractors, optometrists, osteopaths, physical therapists,

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psychologists, and other medical personnel licensed to practice under title 5 or under the laws of

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the jurisdiction within which the services were rendered.

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      (c) The word "hospital" shall mean any hospital required to incorporate under title 7, or

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which is in any way licensed or regulated by the laws of any other state, or by the laws and

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regulations of the United States, including hospitals of the veterans administration or similar type

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institutions, whether incorporated or not.

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      (d) Any party objecting to the admitting into evidence of the affidavit shall file an

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objection specifying the grounds thereof within ten (10) days of receipt of the affidavit, or said

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objections are waived.

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     (e) These provisions shall only apply to claims for personal injury or wrongful death filed

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against a licensed physician, hospital, clinic, health maintenance organization, professional

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service corporation providing health care services, dentist, or dental hygienist based on

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professional negligence.

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     SECTION 3. This act shall take effect upon passage.

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LC00969/SUB A/2

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO COURTS AND CIVIL PROCEDURE - PROCEDURE GENERALLY -

EVIDENCE

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     This act would set forth separate provisions for the admission of medical affidavits into

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evidence without the provider being required to testify in court, based on claims of professional

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negligence against medical providers.

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     This act would take effect upon passage.

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LC00969/SUB A/2

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