Closed claim reporting-malpractice.

WORKING DRAFT
2005
STATE OF WYOMING
05LSO-0685

SENATE FILE
NO.
SF0168

Closed claim reporting-malpractice.

Sponsored by:
Senator(s) Scott

A BILL

for

AN ACT relating to health care malpractice claims; providing for disclosure of contingent fee agreements, legal and litigation costs by attorneys as specified; providing for reporting and disclosure of claims settlements and judgments paid and legal and other expenses related thereto by malpractice insurers; providing for data compilation and report to the legislature by the Wyoming insurance department; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1.

W.S. 1
‑
14
‑
129 is created to read:

1
‑
14
‑
129.

Attorneys; contingent fees.

(a)

In any action against a health care provider alleging malpractice, any attorney filing the civil complaint shall, if there is a contingency fee agreement between the attorney and his client, file a copy of the agreement and any subsequent modifications of the agreement with the court at the time of filing the complaint or within thirty (30) days of making the agreement or modification, whichever is
later.

Except as provided by subsection (b) of this section, the agreement and any modification of the agreement shall be a public document.

(b)

The court in which the action is filed may, on motion of the attorney, designate any portion of the agreement containing information subject to attorney client privilege as confidential and protect that portion from release to anyone except an employee of the court, an employee of the insurance department or the attorney or the client involved. The identity of the case and the formula for computing the contingency fee shall not be subject to attorney client privilege and shall remain a public document.

(c)

If a contingency fee agreement is not filed as required by this section, the agreement shall be void and the attorney shall not be entitled to recover any fee under it or withhold from the client any amount of any recovery pursuant to such agreement.

(d)

For purposes of this section, a contingency fee agreement is any agreement or contract between an attorney and a client pursuant to which the client's obligation to pay a fee to the attorney or to pay any costs or expenses of the suit depends on the fact of recovery from another person or entity or is measured by the amount of recovery from another person or entity.

(e)

The court shall require attorneys involved in the settlement or receiving payment of a judgment involving health care malpractice to disclose in a court filing the following information:

(i)

The total amount of the settlement or the judgment paid;

(ii)

The total amount of costs and expenses payable from the settlements pursuant to contingent fee agreements or otherwise;

(iii)

The total amount of attorney fees payable from the settlement or judgment pursuant to contingent fee agreements or otherwise;

(iv)

A reconciliation of the payments pursuant to paragraphs (i), (ii) and (iii) of this subsection and any contingency fee agreements filed pursuant to this subsection. The reconciliation shall include an explanation of any differences between the payments as computed pursuant to the contingency fee agreements and the actual payments.

(f)

In the case of differences between the results required by the agreement and the final results, the court shall take any action it deems necessary to protect the rights of the attorneys' clients. The court shall report the information received pursuant to paragraphs (e)(i), (ii) and (iii) of this section to the insurance department. It shall be the duty of the insurance department to hold the information confidential and report it publicly only without identifying individual clients, or attorneys and in such a way that the likely individual clients and attorneys cannot be identified. Other than as required by this subsection or to protect the parties involved or discipline attorneys, the court shall hold the information received confidential.

(g)

If a health care malpractice claim is settled without an action being filed, the attorney involved shall file the information required by paragraphs (e)(i), (ii) and (iii) of this section with the insurance department which shall treat the information in the same manner as similar information received from a court.

(h)

The court shall report to the state insurance department any claim for malpractice against a health care provider which is dismissed.

Section 2.

W.S. 26
‑
3
‑
124 by creating new subsections (c) and (d) is amended to read:

26
‑
3
‑
124. Annual statement; mandatory reporting of claims against health care providers; confidentiality; abstract of statistics.

(c)

The commissioner shall reconcile the information received pursuant to subsection (a) of this section with the information received from the courts and attorneys pursuant to W.S. 1
‑
14
‑
129.

(d)

Before July 1 of each year the commissioner shall publish a report to the legislature concerning health care malpractice claims for the previous calendar year. The report shall be sufficiently aggregated to prevent the identification of individual attorneys and clients or claimants.
The report to the legislature shall be posted on an appropriate governmental website for access by the general public. Copies of the report shall be furnished to the joint judiciary interim committee and the joint labor, health and social services interim committee and any other legislator requesting a copy.
The report shall show:

(i)

The total number of claims filed, broken down as the commissioner deems appropriate;

(ii)

The total amounts paid in settlement or discharge of claims, broken down by type of claim as the commissioner deems appropriate and matched with defense and other allocated loss adjustment costs and with net payment to injured parties, payments for contingency fees and other legal fees and payments of expenses and other costs from amounts received by claimants;

(iii)

The numbers of actions or claims that were dismissed or settled with no payment and any legal and other allocated loss adjustment expenses associated with those claims;

(iv)

The totals for each category, broken down as the commissioner deems appropriate, where the commissioner was unable to reconcile the reports received from the courts and individual attorneys with those received from the insurance companies;

(v)

The share of malpractice insurers' overhead, administrative expenses, other expenses and profit reasonably allocated to Wyoming business;

(vi)

The percentages of total insurer costs and profits going to:

(A)

Insurance company profits;

(B)

Insurance company administration and other costs;

(C)

Defense legal costs and other allocated loss adjustment expenses;

(D)

Claimants litigation and other costs not including attorney fees;

(E)

Claimants attorney fees;

(F)

Net payments to claimants.

Section 3.

This act is effective July 1, 2005.

(END)

1
SF0168