hb237_LC_14_9021_a

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05 LC 14 9021

House Bill 237

By: Representatives Tumlin of the 38th, Keen of the 179th, Burkhalter of the 50th, Fleming of the 117th, Stephenson of the 92nd, and others

A BILL TO BE ENTITLED
AN ACT

To amend Title 51 of the Official Code of Georgia Annotated, relating to torts, so as to change provisions relating to liability of hospitals for acts or omissions of health care professionals; to provide that hospitals shall not be liable unless there is an actual agency or employment relationship; to require hospitals to provide certain notices; to provide rules for determining the existence or absence of agency, employment relationships, and independent contractor status; to provide for practice and procedure; to provide for related matters; to provide an effective date and applicability; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 51 of the Official Code of Georgia Annotated, relating to torts, is amended by adding immediately following Code Section 51-2-5 a new Code Section 51-2-5.1 to read as follows:

"51-2-5.1.

(a) As used in this Code section, the term:

(1) 'Health care professional' means a professional licensed as a chiropractor, clinical social worker, dentist, dietitian, medical doctor, marriage and family therapist, registered or licensed practical nurse, occupational therapist, optometrist, osteopathic physician, pharmacist, physical therapist, physiciańs assistant, professional counselor, podiatrist, psychologist, radiological technician, or respiratory therapist.

(2) 'Hospital' means a facility that has a valid permit or provisional permit issued by the Department of Human Resources under Chapter 7 of Title 31.

(b) Notwithstanding the provisions of Code Section 51-2-5, no hospital which complies with the notice provisions of either subsection (c) or (d) of this Code section shall be liable for the acts or omissions of a health care professional unless there exists an actual agency or employment relationship between the hospital and the health care professional.

(1) Be posted conspicuously in the hospital lobby or a public area of the hospital;

(2) Contain print at least one inch high; and

(3) Provide language substantially similar to the following:

'Some or all of the health care professionals performing services in this hospital are independent contractors and are not hospital agents or employees. Independent contractors are responsible for their own actions and the hospital shall not be liable for the acts or omissions of any such independent contractors.'

(d) The hospital shall have the patient or the patient́s personal representative sign a written acknowledgment that contains language substantially similar to that set forth in paragraph (3) of subsection (c) of this Code section.

(e) The notice required by this Code section shall be sufficient if it meets the requirements of either subsection (c) or (d) of this Code section even if the patient or the patient́s personal representative did not see or read such notice for any reason, including but not limited to medical condition or language proficiency.

(f) Whether a health care professional is an actual agent, an employee, or an independent contractor shall be determined by the language of the contract between the health care professional and the hospital. In the absence of such a contract, or if the contract is unclear or ambiguous, a health care professional shall only be considered the hospitaĺs employee or actual agent if it can be shown by a preponderance of the evidence that the hospital reserves the right to control the time, manner, or method in which the health care professional performs the services for which licensed, as distinguished from the right to merely require certain definite results.

(g) If the court finds that there is no contract or that the contract is unclear or ambiguous as to the relationship between the hospital and health care professional, the court shall apply the following factors to determine whether the hospital exercises a right of control over the time, manner, or method of the health care professionaĺs services:

(1) Factors that may be considered as evidence that the hospital exercises a right of control over the time, manner, or method of the health care professionaĺs services include: the parties believed they were creating an actual agency or employment relationship; the health care professional receives substantially all the employee benefits received by actual employees of the hospital; the hospital directs the details of the health care professionaĺs work step-by-step; the hospital withholds, or is required to withhold, federal and state taxes from the remuneration paid to the health care professional for services to the patients of the hospital; and factors not specifically excluded in paragraph (2) of this subsection; and

(2) Factors that shall not be considered as evidence that a hospital exercises a right of control over the time, manner, or method of the health care professionaĺs services include: a requirement by the hospital that such health care professional treat all patients or that any health care professional or group is obligated to staff a hospital department continuously or from time to time; the hospitaĺs payment to the health care professional on an hourly basis; the provision of facilities or equipment by the hospital; the fact a health care professional does not maintain a separate practice outside the hospital; the source of the payment for the professional liability insurance premium for that health care professional; the fact that the professional fees for services are billed by the hospital; or any requirement by the hospital that such health care professional engage in conduct required to satisfy any state or federal statute or regulation, any standard of care, any standard or guideline set by an association of hospitals or health care professionals, or any accreditation standard adopted by a national accreditation organization."

SECTION 2.

This Act shall become effective July 1, 2005, and shall apply with respect to causes of action arising on or after that date. Prior causes of action shall be governed by prior law.

SECTION 3.

All laws and parts of laws in conflict with this Act are repealed.