House File 231 - Introduced
HOUSE FILE
BY OURTH, WOLFE, KOESTER,
BAUDLER, LYKAM, BERRY,
H. MILLER, STAED,
KRESSIG, HANSON,
JONES, WILLS, KLEIN,
BYRNES, GRASSLEY,
FINKENAUER, HEARTSILL,
MOMMSEN, BROWN=POWERS,
GAINES, MAXWELL,
BENNETT, CARLSON,
HUNTER, ABDUL=SAMAD,
PRICHARD, HEDDENS,
STECKMAN,
RUNNING=MARQUARDT,
FORBES, GUSTAFSON,
HALL, DAWSON, COHOON,
SMITH, DUNKEL, KEARNS,
BEARINGER, RUFF,
GASKILL, and STUTSMAN
A BILL FOR
1 An Act relating to confidential communications between an
2 emergency medical care provider and a patient.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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PAG LIN
1 1 Section 1. Section 232.96, subsection 5, Code 2015, is
1 2 amended by striking the subsection and inserting in lieu
1 3 thereof the following:
1 4 5. Sections 622.9 and 622.10 and any other statute or rule
1 5 of evidence which excludes or makes privileged the testimony
1 6 of a husband or wife against the other or the testimony of
1 7 a health practitioner or mental health professional as to
1 8 confidential communications do not apply to evidence at an
1 9 adjudicatory hearing.
1 10 Sec. 2. Section 622.10, subsections 1, 2, 3, and 5, Code
1 11 2015, are amended to read as follows:
1 12 1. A practicing attorney, counselor, physician, surgeon,
1 13 physician assistant, advanced registered nurse practitioner
1 14 health practitioner, mental health professional, or the
1 15 stenographer or confidential clerk of any such person, who
1 16 obtains information by reason of the person's employment,
1 17 or a member of the clergy shall not be allowed, in giving
1 18 testimony, to disclose any confidential communication properly
1 19 entrusted to the person in the person's professional capacity,
1 20 and necessary and proper to enable the person to discharge the
1 21 functions of the person's office according to the usual course
1 22 of practice or discipline.
1 23 2. The prohibition does not apply to cases where the
1 24 person in whose favor the prohibition is made waives the
1 25 rights conferred; nor does the prohibition apply to physicians
1 26 or surgeons, physician assistants, advanced registered
1 27 nurse practitioners health practitioners, mental health
1 28 professionals, or to the stenographer or confidential clerk
1 29 of any physicians or surgeons, physician assistants, advanced
1 30 registered nurse practitioners, or mental health professionals
1 31 such person, in a civil action in which the condition of the
1 32 person in whose favor the prohibition is made is an element
1 33 or factor of the claim or defense of the person or of any
1 34 party claiming through or under the person. The evidence is
1 35 admissible upon trial of the action only as it relates to the
2 1 condition alleged.
2 2 3. a. In a civil action in which the condition of the
2 3 plaintiff in whose favor the prohibition is made is an element
2 4 or factor of the claim or defense of the adverse party or of
2 5 any party claiming through or under the adverse party, the
2 6 adverse party shall make a written request for records relating
2 7 to the condition alleged upon the plaintiff's attorney for a
2 8 legally sufficient patient's waiver under federal and state
2 9 law. Upon receipt of a written request, the plaintiff shall
2 10 execute a legally sufficient patient's waiver and release it
2 11 to the adverse party making the request within sixty days of
2 12 receipt of the written request. The patient's waiver may
2 13 require a physician or surgeon, physician assistant, advanced
2 14 registered nurse practitioner, health practitioner or mental
2 15 health professional to do all of the following:
2 16 (1) Provide a complete copy of the patient's records
2 17 including but not limited to any reports or diagnostic imaging
2 18 relating to the condition alleged.
2 19 (2) Consult with the attorney for the adverse party prior
2 20 to providing testimony regarding the plaintiff's medical
2 21 history and the condition alleged and opinions regarding health
2 22 etiology and prognosis for the condition alleged subject to the
2 23 limitations in paragraphs "c" and "e".
2 24 b. If a plaintiff fails to sign a waiver within the
2 25 prescribed time period, the court may order disclosure or
2 26 compliance. The failure of a party to comply with the court's
2 27 order may be grounds for dismissal of the action or any other
2 28 relief authorized under the rules of civil procedure.
2 29 c. Any physician or surgeon, physician assistant, advanced
2 30 registered nurse practitioner, health practitioner or mental
2 31 health professional who provides records, provides information
2 32 during consultation, or otherwise responds in good faith to a
2 33 request pursuant to paragraph "a" shall be immune with respect
2 34 to all civil or criminal penalties, claims, or actions of any
2 35 kind with respect to this section.
3 1 d. Any physician or surgeon, physician assistant, advanced
3 2 registered nurse practitioner, health practitioner or mental
3 3 health professional who provides records or consults with the
3 4 attorney for any party shall be entitled to charge a reasonable
3 5 fee for production of the records, diagnostic imaging,
3 6 and consultation. Any party seeking consultation shall be
3 7 responsible for payment of all charges. The fees for copies of
3 8 any records shall be as specified in subsection 6.
3 9 e. Defendant's The defendant's counsel shall provide
3 10 a written notice to the plaintiff's attorney in a manner
3 11 consistent with the Iowa rules of civil procedure providing for
3 12 notice of deposition at least ten days prior to any meeting
3 13 with the plaintiff's physician or surgeon, physician assistant,
3 14 advanced registered nurse practitioner, health practitioner
3 15 or mental health professional. Plaintiff's The plaintiff's
3 16 attorney has the right to be present at all such meetings, or
3 17 participate in telephonic communication with the physician
3 18 or surgeon, physician assistant, advanced registered nurse
3 19 practitioner, health practitioner or mental health professional
3 20 and the attorney for the defendant. Prior to scheduling
3 21 any meeting or engaging in any communication with the
3 22 physician or surgeon, physician assistant, advanced registered
3 23 nurse practitioner, health practitioner or mental health
3 24 professional, the attorney for the defendant shall confer with
3 25 the plaintiff's attorney to determine a mutually convenient
3 26 date and time for such meeting or telephonic communication.
3 27 Plaintiff's The plaintiff's attorney may seek a protective
3 28 order structuring all communication by making application to
3 29 the court at any time.
3 30 f. The provisions of this subsection do not apply to actions
3 31 or claims brought pursuant to chapter 85, 85A, or 85B.
3 32 5. If an adverse party desires either to call as a
3 33 witness at the trial of the action or the oral deposition,
3 34 either discovery or evidentiary, of a physician or surgeon,
3 35 physician assistant, advanced registered nurse practitioner,
4 1 health practitioner or mental health professional to which
4 2 the prohibition would otherwise apply, or the stenographer
4 3 or confidential clerk of a physician or surgeon, physician
4 4 assistant, advanced registered nurse practitioner, or mental
4 5 health professional or desires to call a physician or surgeon,
4 6 physician assistant, advanced registered nurse practitioner,
4 7 or mental health professional to which the prohibition would
4 8 otherwise apply or the stenographer or confidential clerk of a
4 9 physician or surgeon, physician assistant, advanced registered
4 10 nurse practitioner, or mental health professional as a witness
4 11 at the trial of the action any such person, the adverse party
4 12 shall file an application with the court for permission to
4 13 do so. The court upon hearing, which shall not be ex parte,
4 14 shall grant permission unless the court finds that the evidence
4 15 sought does not relate to the condition alleged. At the
4 16 request of any party or at the request of the deponent, the
4 17 court shall fix a reasonable fee to be paid to a physician
4 18 or surgeon, physician assistant, advanced registered nurse
4 19 practitioner, health practitioner or mental health professional
4 20 by the party taking the deposition or calling the witness.
4 21 Sec. 3. Section 622.10, subsection 6, paragraph e,
4 22 subparagraph (2), Code 2015, is amended to read as follows:
4 23 (2) "Provider" means any physician or surgeon, physician
4 24 assistant, advanced registered nurse practitioner health
4 25 practitioner, mental health professional, hospital, nursing
4 26 home, or other person, entity, facility, or organization that
4 27 furnishes, bills, or is paid for health care in the normal
4 28 course of business.
4 29 Sec. 4. Section 622.10, subsection 7, Code 2015, is amended
4 30 to read as follows:
4 31 7. For the purposes of this section, "mental health
4 32 professional":
4 33 a. "Emergency medical care provider" means the same as
4 34 defined in section 147A.1.
4 35 b. "Health practitioner" means a physician, surgeon,
5 1 physician assistant, advanced registered nurse practitioner, or
5 2 emergency medical care provider.
5 3 c. "Mental health professional" means a psychologist
5 4 licensed under chapter 154B, a registered nurse licensed under
5 5 chapter 152, a social worker licensed under chapter 154C, a
5 6 marital and family therapist licensed under chapter 154D, a
5 7 mental health counselor licensed under chapter 154D, or an
5 8 individual holding at least a master's degree in a related
5 9 field as deemed appropriate by the board of behavioral science.
5 10 EXPLANATION
5 11 The inclusion of this explanation does not constitute agreement with
5 12 the explanation's substance by the members of the general assembly.
5 13 This bill amends Code section 622.10 to prohibit an
5 14 emergency medical care provider from disclosing confidential
5 15 information which a patient disclosed to the emergency
5 16 medical care provider in the emergency medical care provider's
5 17 professional capacity. The privilege the bill creates between
5 18 a patient and an emergency medical care provider is identical
5 19 to the privilege that exists under current law between a
5 20 patient and a physician, surgeon, physician assistant, or
5 21 advanced registered nurse practitioner.
5 22 The bill defines "emergency medical care provider" as
5 23 the same as defined in Code section 147A.1, or an individual
5 24 trained to provide emergency and nonemergency medical care at
5 25 the emergency medical responder, emergency medical technician,
5 26 advanced emergency medical technician, paramedic, or other
5 27 certification levels adopted by rule by the department of
5 28 public health, who has been issued a certificate by the
5 29 department.
5 30 The bill provides several exceptions to the prohibition.
5 31 First, the patient may waive the prohibition. The prohibition
5 32 does not apply in a civil action in which the condition of
5 33 the patient is an element or factor of the claim or defense
5 34 of the patient. In a civil action in which the patient is a
5 35 plaintiff and the patient's condition is an element or factor
6 1 of the claim or defense of the adverse party, the bill provides
6 2 the procedure by which the adverse party may request or compel
6 3 the disclosure of the confidential communication made by the
6 4 patient to the emergency medical care provider.
6 5 Pursuant to Code section 232.74, the privilege does not
6 6 apply to evidence regarding a child's injuries or the cause of
6 7 such injuries in any judicial proceeding, civil or criminal,
6 8 which results from a report pursuant to Code chapter 232,
6 9 relating to juvenile justice. Finally, the privilege does not
6 10 apply in cases involving a petition which alleges that a child
6 11 is a child in need of assistance.
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