71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1887
House Bill 2700
Sponsored by Representative KNOPP, Senator METSGER;
Representatives BACKLUND, BATES, GARRARD, HILL, KRUMMEL,
LEONARD, MONNES ANDERSON, MORRISETTE, RINGO, ROSENBAUM, STARR,
C WALKER, Senators BROWN, CORCORAN, MINNIS, STARR
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Prohibits health care facility from retaliating against health
care provider because provider takes certain actions relating to
care, services or conditions at health care facility. Provides
civil cause of action that includes punitive damages for
violation. Allows Attorney General to bring action on behalf of
state or intervene in civil action against health care facility
taking retaliatory action. Allows imposition of civil penalty of
up to $10,000 for violation.
Applies only to actions of health care provider occurring on or
after effective date of Act.
A BILL FOR AN ACT
Relating to health care providers.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 6 of this 2001 Act:
(1) 'Affiliated health care facility' means a health care
facility that has a business relationship with another health
care facility.
(2) 'Health care facility' means a:
(a) Health care facility, as defined in ORS 442.015;
(b) Residential facility, as defined in ORS 443.400;
(c) Domiciliary care facility, as defined in ORS 443.205;
(d) Hospice program, as defined in ORS 443.850; or
(e) Dialysis center.
(3) 'Health care provider' means a person licensed, certified
or otherwise authorized or permitted by the law of this state to
administer health care in the ordinary course of business or
practice of a profession.
(4) 'Manager' means a person who:
(a) Has authority to direct and control the work performance of
a health care provider;
(b) Has authority to take corrective action regarding a
violation of law or a rule or a violation of professional
standards of practice, about which a health care provider has
complained; or
(c) Has been designated by a health care facility to receive
the notice described in section 2 (2) of this 2001 Act.
(5) 'Public body' has the meaning given that term in ORS
30.260.
(6) 'Retaliatory action' means the discharge, suspension,
demotion, harassment, denial of employment or promotion, or
layoff of a health care provider, or other adverse action taken
against a health care provider in the terms or conditions of
employment of the health care provider. + }
SECTION 2. { + (1) A health care facility may not take
retaliatory action against a health care provider because the
health care provider:
(a) Discloses or threatens to disclose to a manager or a public
body an activity, policy or practice of the health care facility
or of an affiliated health care facility that the health care
provider reasonably believes is in violation of law or a rule or
is a violation of professional standards of practice that the
health care provider reasonably believes poses a risk to the
health, safety or welfare of a patient or the public;
(b) Provides information to or testifies before a public body
conducting an investigation, hearing or inquiry into an alleged
violation of law or a rule or into an activity, policy or
practice that may be in violation of professional standards of
practice by a health care facility or an affiliated health care
facility that the health care provider reasonably believes poses
a risk to the health, safety or welfare of a patient or the
public;
(c) Objects to or refuses to participate in any activity,
policy or practice of the health care facility or of an
affiliated health care facility that the health care provider
reasonably believes is in violation of law or a rule or is a
violation of professional standards of practice that the health
care provider reasonably believes poses a risk to the health,
safety or welfare of a patient or the public; or
(d) Participates in a committee or peer review process or files
a report or a complaint that discusses allegations of unsafe,
dangerous or potentially dangerous care.
(2) Except as provided in subsection (3) of this section, the
protection in subsection (1) of this section against retaliatory
action does not apply to a health care provider unless the health
care provider before making a disclosure to a public body as
described in subsection (1)(a) of this section:
(a) Gives written notice to a manager of the health care
facility of the activity, policy, practice or violation of
professional standards of practice that the health care provider
reasonably believes poses a risk to public health; and
(b) Provides the manager a reasonable opportunity to correct
the activity, policy, practice or violation.
(3) A health care provider is not required to comply with the
provisions of subsection (2) of this section if the health care
provider:
(a) Is reasonably certain that the activity, policy, practice
or violation is known to one or more managers of the health care
facility or an affiliated health care facility and an emergency
situation exists;
(b) Reasonably fears physical harm as a result of the
disclosure; or
(c) Makes the disclosure to a public body for the purpose of
providing evidence of an activity, policy or practice of a health
care facility or an affiliated health care facility that the
health care provider reasonably believes is a crime. + }
SECTION 3. { + (1) A health care provider aggrieved by an act
prohibited by section 2 of this 2001 Act may bring an action in
circuit court of the county in which the health care facility is
located. All remedies available in a common law tort action are
available to a health care provider if the health care provider
prevails in an action brought under this subsection and are in
addition to any remedies provided in subsection (2) of this
section.
(2) In an action brought under subsection (1) of this section,
a circuit court may do any of the following:
(a) Issue a temporary restraining order or a preliminary or
permanent injunction to restrain a continued violation of section
2 of this 2001 Act.
(b) Reinstate the health care provider to the same or
equivalent position that the health care provider held before the
retaliatory action.
(c) Reinstate full fringe benefits and seniority rights to the
health care provider.
(d) Compensate the health care provider for lost wages,
benefits and other remuneration, including interest.
(e) Order the health care facility to pay reasonable litigation
costs of the health care provider, including reasonable expert
witness fees and reasonable attorney fees.
(f) Award punitive damages as provided in ORS 18.537.
(3) A health care provider who brings an action under
subsection (1) of this section shall also deliver a copy of the
complaint to the Attorney General. The Attorney General shall
establish and maintain a register of all complaints delivered to
the Attorney General by health care providers.
(4) Except as provided in subsection (5) of this section, in
any action brought by a health care provider under subsection (1)
of this section, if the court finds that the health care provider
had no objectively reasonable basis for asserting the claim, the
court may award costs, expert witness fees and reasonable
attorney fees to the health care facility.
(5) A health care provider may not be assessed costs or fees
under subsection (4) of this section if, upon exercising
reasonable and diligent efforts after filing the action, the
health care provider moves to dismiss the action against the
health care facility after determining that no issue of law or
fact exists that supports the action against the health care
facility. + }
SECTION 4. { + (1) If the Attorney General finds that it is in
the best interests of this state, the Attorney General may:
(a) Bring a civil action in a court of appropriate jurisdiction
on behalf of the State of Oregon against a health care facility
that violates the provisions of section 2 of this 2001 Act; or
(b) Intervene, upon timely application, in any proceeding
brought under section 3 (1) of this 2001 Act.
(2) In an action brought under this section, the court may
assess for the benefit of this state a civil penalty against the
health care facility of not more than $10,000 for each violation
of section 2 of this 2001 Act. The court may award the costs of
investigation, expert witness fees and reasonable attorney fees
to the Attorney General if the Attorney General prevails in an
action under this section.
(3) The remedies under this section and section 3 of this 2001
Act are supplemental and not mutually exclusive. + }
SECTION 5. { + (1) A health care facility shall post a notice
summarizing the provisions of sections 2 to 4 of this 2001 Act in
a conspicuous place on the premises of the health care facility.
The notice must be posted where notices to employees and
applicants for employment are customarily displayed.
(2) Any health care facility that willfully violates this
section is subject to a civil penalty not to exceed $100. Civil
penalties under this section shall be imposed by the Health
Division in the manner provided by ORS 183.090. + }
SECTION 6. { + Nothing in sections 2 and 3 of this 2001 Act
shall be deemed to diminish any rights, privileges or remedies of
a health care provider under federal or state law or regulation
or under any collective bargaining agreement or employment
contract. + }
SECTION 7. { + Sections 2 to 4 of this 2001 Act apply only to
actions taken by a health care provider on or after the effective
date of this 2001 Act. + }
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