CHAPTER 506

FORMERLY

HOUSE CONCURRENT RESOLUTION NO. 94

ESTABLISHING A MEDICAL NEGLIGENCE STATUTE REVIEW TASK FORCE TO REVIEW THE CURRENT MEDICAL NEGLIGENCE STATUTE OF LIMITATIONS AND ITS RELATED ISSUES.

WHEREAS, 22 years have passed since the General Assembly enacted a statute of limitations specifically dealing with time limits for injured persons to file a lawsuit based on the negligence of a health care provider, i.e., a medical negligence action; and

WHEREAS, House Bill No. 650 was introduced to broaden the time limits for bringing a lawsuit against a health care provider due to the perceived unfairness of the current statute which absolutely precludes the filing of a lawsuit by an injured person who does not discover his or her injury and file a lawsuit within a two year period (or in some instances a three year period) from the date of the injury; and

WHEREAS, the passage of such statute at that time was the result of a recommendation of a Blue Ribbon Panel studying a perceived "insurance liability crisis" existing at that time; and

WHEREAS, during the debate a variety of issues were raised that indicate the need to further study the fairness of Delaware's statute of limitations pertaining to health care providers specifically 18 Del. C § 6856; and

WHEREAS, these issues include:

(i) What date the statute of limitations for filing a medical negligence action begins (i.e., from the date of injury as provided in the current statute or from the date a person discovers he or she was harmed due to the negligence of a health care provider (date of injury vs. date of discovery issue));

(ii) Whether the statute of limitations should commence running if a person is under the continuing care of a health care provider who has negligently treated the person during the course of such care (doctrine of continuing care);

(iii) The economic impact of changing the current statute of limitations (i.e., allowing disabled injured persons a better opportunity to be compensated from a negligent health care provider rather than relying on other sources of income or State support);

(iv) The impact on health care providers' insurance premiums if the statute of limitations is broadened;

() The appropriate length of time for the statute of limitations (which is shorter than for any other professional in Delaware who harms someone by his or her negligence);

(i) Balancing the fairness of allowing an injured person to bring a lawsuit within a time certain from discovering he or she is injured versus the public policy of having a time for repose of such actions;

(ii) What constitutes "discovery" by a person that he or she has been injured (i.e., when the person gets another doctor's opinion, or when a reasonable person "should have known" they were injured;);

(iii) When does a physician/patient relationship terminate; and

(ix) What impact does managed health care have on the statute of limitations since there was no managed health care system in place, at the time the current statute was enacted.

WHEREAS, it was the general sense from the debate of the 1:611 that Delaware's statute of limitations should be compared and contrasted with other states' statute of limitations relating to fairness to the patient, economic impact, and costs to both the consumer and health care provider.

WHEREAS, Delaware's Supreme Court and other Delaware courts have issued opinions indicating that Delaware's current statute has harsh consequences which cannot be softened by the application of judicial doctrine for injured parties because our current statute leaves no room for flexibility in interpretation.

WHEREAS, Dr. Gregg C. Sylvester, Secretary of Health & Social Services and Chair of the Delaware Health Care Commission stated that this administration is committed to review some of these issues,

NOW, THEREFORE:

BE IT RESOLVED by the House of Representatives of the 139th General Assembly of the State of Delaware, the Senate concurring therein that a Medical Negligence Statute Review Task Force is hereby established to review the aforementioned issues, as well as other related issues, and make recommendations for changes, if necessary, to the General Assembly on or before March 1, 1999.

BE IT FURTHER RESOLVED that the Medical Negligence Statute Review Task Force shall consist of:

(a) Two members of the House of Representatives to be appointed by the Speaker of the House, one of which will be designated to chair the Task Force;

(b) One member of the public to be appointed by the Speaker of the House;

(c) Two members of the Senate to be appointed by the President Pro Tem of the Senate; and

(d) One member of the public to be appointed by the President Pro Tem of the Senate.

(e) The President of the Delaware Bar Association or their designee;

(f) The President of the Delaware Trial Lawyers Association or their designee;

(g) The President of the Delaware Medical Association or their designee;

(h) The Insurance Commissioner or their designee;

(i) The Chairperson of the Delaware Health Care Commission; and

(j) The President of the State Chamber of Commerce or their designee.

BE IT FURTHER RESOLVED that the Task Force shall hold such meetings as it deems necessary or helpful to its purpose.

BE IT FURTHER RESOLVED that the House of Representatives shall supply such clerical and support staff as are reasonably necessary to support the Task Force.

Approved June 30, 1998