Add S11-108, Gen Ob L; amd S1602, CPLR; amd S4410, Pub Health L
Provides that whenever health care organizations delay, fail or refuse to approve, provide, arrange for, or pay for in a timely manner any health care service that it is contractually obligated to perform, it shall be liable for any personal injury, death or damages caused by delay, failure or refusal.
STATE OF NEW YORK
________________________________________________________________________
417
2009-2010 Regular Sessions
IN SENATE(Prefiled)
January 7, 2009
___________
Introduced by Sens. BRESLIN, ADAMS, DILAN, DUANE, HASSELL-THOMPSON,
KRUEGER, KRUGER, MONTGOMERY, ONORATO, OPPENHEIMER, PARKER, SAMPSON,
SAVINO, SCHNEIDERMAN, SMITH, STACHOWSKI, STAVISKY, VALESKY -- read
twice and ordered printed, and when printed to be committed to the
Committee on Judiciary
AN ACT to amend the general obligations law, the civil practice law and
rules and the public health law, in relation to holding health care
organizations responsible for the consequences of their decisions
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings. The legislature finds that a wide
2 variety of entities are integrating the functions of paying for health
3 care, determining what health care is paid for, and providing the care.
4 This integration is breaking down traditional distinctions as to func-
5 tion. Increasingly, payor determinations are governing health care and
6 controlling decisions that in the past were the exclusive domain of
7 health care professionals and patients. The legislature further finds
8 that this integration makes it imperative that health care organizations
9 be held fully responsible for the consequences of their decisions, much
10 as health care professionals have been held responsible for the conse-
11 quences of their decisions.
12 § 2. The general obligations law is amended by adding a new section
13 11-108 to read as follows:
14 § 11-108. Responsibility of health care organizations. 1. Defi-
15 nitions. For purposes of this section, unless the context clearly
16 requires otherwise:
17 (a) "Health care organization" means an entity that approves,
18 provides, arranges for, or pays for health care services, including but
19 not limited to an entity licensed under the insurance law or licensed or
20 certified under the public health law.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03585-01-9
S. 417 2
1 (b) "Health care provider" means an entity licensed or certified under
2 article twenty-eight, thirty-six or forty-four of the public health law;
3 an entity licensed or certified under article sixteen or thirty-one of
4 the mental hygiene law; a health care practitioner licensed or certified
5 under title eight of the education law; or a provider of pharmaceutical
6 products and services or durable medical equipment.
7 (c) "Health care service" means health care services, treatments,
8 products or equipment provided by a health care provider.
9 2. Whenever a health care organization delays, fails or refuses to
10 approve, provide, arrange for, or pay for, in a timely manner, any
11 health care services to a person to the extent it is contractually or
12 legally obligated to do so, it shall be liable for any personal injury,
13 death or damages caused by the delay, failure or refusal.
14 3. The failure of the person (or of any other person acting on the
15 person's behalf) to seek an alternate provider of or to pay for the
16 health care service shall not diminish the health care organization's
17 liability or constitute culpable conduct for the purposes of section one
18 thousand four hundred eleven of the civil practice law and rules.
19 4. Nothing in this section shall limit any other right, remedy, or
20 cause of action that any person may otherwise have.
21 5. No contract or agreement between a health care provider and a
22 health care organization shall directly or indirectly require a health
23 care provider to indemnify or hold harmless the health care organization
24 for any liability resulting from the health care organization's acts or
25 omissions.
26 6. No contract or agreement between a health care organization and any
27 entity or person shall waive or limit any liability of the health care
28 organization to the entity or person under this article.
29 7. A health care organization shall, within ten days of a written
30 request for same, provide to a person or an attorney or health care
31 practitioner authorized to represent or act on behalf of the person or
32 the person's estate, an opportunity to inspect and to receive copies of
33 all information and records relating or pertaining to its delay, failure
34 or refusal to approve, provide, arrange for, or pay for, in a timely
35 manner, any health care services to the extent it is contractually or
36 legally obligated to do so for the person. The health care organization
37 may impose a reasonable charge, not to exceed the charges imposed for
38 inspection and copies as set forth in sections seventeen and eighteen of
39 the public health law.
40 8. If the time in which a plaintiff could have commenced an action for
41 professional malpractice for the act, error or omission complained of
42 has expired prior to commencement of an action brought pursuant to this
43 section against a health care organization, the defendant in said action
44 shall be barred from commencing a third-party action against a person
45 not a party who is or may be liable to that defendant for all or part of
46 the plaintiff's claim against the defendant, and against whom the plain-
47 tiff cannot commence an action for professional malpractice due to the
48 expiration of the statute of limitations prior to commencement of the
49 action against the defendant.
50 § 3. Section 1602 of the civil practice law and rules is amended by
51 adding a new subdivision 14 to read as follows:
52 14. not apply to an action against a health care organization brought
53 pursuant to section 11-108 of the general obligations law.
54 § 4. Subdivision 1 of section 4410 of the public health law, as added
55 by chapter 938 of the laws of 1976, is amended to read as follows:
S. 417 3
1 1. The provision of comprehensive health services directly or indi-
2 rectly, by a health maintenance organization through its comprehensive
3 health services plan shall not be considered the practice of the profes-
4 sion of medicine by such organization or plan. However[,]:
5 (a) this subdivision shall not be construed to limit any liability the
6 health maintenance organization or its comprehensive health services
7 plan would otherwise have relating to any professional services rendered
8 by, on behalf of or in connection with the organization or plan;
9 (b) each member, employee or agent of such organization or plan shall
10 be fully and personally liable and accountable for any negligent or
11 wrongful act or misconduct committed by him or her or any person under
12 his or her direct supervision and control while rendering professional
13 services on behalf of [such] the organization or plan; and
14 (c) no contract or agreement between a health maintenance organization
15 or its comprehensive health services plan and any health care provider
16 shall require the health care provider to indemnify or hold harmless the
17 organization or plan for any liability the organization or plan may
18 incur.
19 § 5. If any provision of this act or the application thereof shall be
20 held to be invalid, such invalidity shall not affect other provisions or
21 other application of any provision of this act which can be given effect
22 without the invalid provision or application, and to that end, the
23 provisions and applications of this act are severable.
24 § 6. This act shall take effect immediately.
