2013 Negligence and Medical Liability Legislative Update

Richard R. Martell
The 2013 Session of the Maryland General Assembly saw the introduction of a number of bills involving general negligence and medical liability issues. Among the bills that were signed into law was a provision broadening the powers of the Maryland Board of Physicians, a law allowing pharmacists to administer a broad range of vaccines, and a law facilitating the use of telemedicine physicians by Maryland hospitals. Bills that failed to pass in this session included a proposed law recognizing and regulating naturopathic doctors, a standardized set of dog bite liability rules for dogs of all breeds, and a bill which would preemptively reverse any decision by the Court of Appeals striking down Maryland’s common law contributory negligence rule. Below is a summary of some of the notable bills that were introduced.

Bills Signed Into Law

HB 1042/SB 798 — Credentialing and Privileging of Telemedicine Physicians — Allows hospitals that use telemedicine services to rely on the credentials and licensing held by the telemedicine physicians at the distant site where they are located.

HB 1296/SB 981 — Powers of the Board of Physicians — Expands the power of the Maryland Board of Physicians to issue cease and desist orders to physicians for any conduct that warrants discipline and poses a serious risk to patients. Previously, the Board could only issue cease and desist orders for practicing medicine without a license.

SB 401 — Pharmacists Administering Vaccines — Expands the range of vaccines pharmacists may administer to adults and children ages 11-18. Previously pharmacists could only administer a few select vaccines to adults and could only give the flu vaccine to children.

HB 1356/SB 512 — ID Badges for Health Care Practitioners — Requires most outpatient health care practitioners to wear ID badges indicating the practitioner’s name and type of license.

Bills Passed by One Legislative House

HB 1310/SB 834 — Expanded Definition of “Health Care Provider” — Bill would change the legal definition of a “health care provider” for the purposes of the medical malpractice liability provisions under Cts. & Jud. Proc. § 3-2A-01 et seq. to include nurse practitioners, nurse midwives, nurse anesthetists, nurse psychologists, clinical nurse specialists, occupational therapists, and agents or employees of a health care provider who deliver health care services.

HB 67/SB 121 — Health Care Decisions Act — Bill would change the procedure for certifying that a patient is not capable of making informed health care decisions. The current procedure requires two physicians to certify the patient’s incapacity. The bill would allow the certification to be made by two physicians or a physician and a psychologist.

HB 1290/SB 837 — Health Care Practitioner Disciplinary Procedures — Bill would alter procedures for disciplining health care practitioners by their respective health occupation boards by prohibiting stays of disciplinary orders pending judicial review and preventing challenges due to certain procedural defects.

Bills that Died in Committee

HB 1029/SB 783 — Naturopathic Doctors — Bill would recognize and regulate naturopathic doctors in Maryland, allowing them to practice naturopathic medicine, order tests and imaging studies and prescribe natural medications. Certain actions such as prescribing prescription drugs and performing most surgeries would be prohibited. Bill would also require the appointment of a naturopathic doctor to the Maryland Board of Physicians.

HB 618 — Dog Owner Liability — Bill would establish standard rules of liability for personal injuries caused by dog bites without regard to the breed or heritage of the dog.

HB 1265/SB 835 — Hospital Programs for Addressing Medical Errors — Bill would allow hospitals to establish Patient Safety Early Intervention Programs responsible for addressing, explaining, and apologizing for medical errors. These programs could also work to resolve any legal claims at an early stage. Statements made as part of an early intervention program would be inadmissible as an admission of liability or an admission against interest.

HB 1114/SB 836 — Periodic Payments of Personal Injury Judgments — Bill would require courts to order that payments of health care malpractice judgments of more than $1.5 million be made through annuities under certain circumstances.

HB 1156/SB 819 — Maryland Contributory Negligence Act — Bill would automatically reverse any Court of Appeals decision striking down Maryland’s contributory negligence rule and restore the common law contributory negligence rule as it existed on January 1, 2011. (In Coleman v. Columbia Soccer Association, currently pending before the Maryland Court of Appeals, the appellant urged the court to discard Maryland’s contributory negligence rule in favor of a comparative negligence scheme).

HB 1316/SB 771 — Medical Injury Post-judgment Interest — Bill would change the statutory post-judgment interest rate in medical injury cases to the Federal Reserve prime rate or 3%, whichever is greater. The current statutory rate is 10%.

SB 747 — Statutory Interpretation of the Term “Physician” — Where state statutes or regulations require the signature or approval of a physician, bill would include physician assistants and nurse practitioners in the term “physician.”

HB 1151/SB 760 — Certified Nurse Midwives — Bill would allow certified nurse midwives to work without a collaboration agreement with a physician or other health care provider.

HB 810 — Mental Health Professionals — Duty to Report – Where a patient might pose a threat to himself or others, bill would allow health care providers to report this to state health officials who could then report to the police for the purposes of assessing the patient’s eligibility to own a firearm and addressing any imminent threats. Bill would also immunize the decision to report or not report a patient.

Richard R. Martell is an associate in Cornblatt, Bennett, Penhallegon & Roberson’s litigation practice group.