Senate Bill No. 230
Introduced By _______________________________________________________________________________
A Bill for an Act entitled: "An Act providing for discipline of and damages and injunction actions against certain medical professionals assisting in a suicide; and amending section
Be it enacted by the Legislature of the State of Montana:
NEW SECTION. Section 1. Revocation or denial of medical license for assisting in suicide. (1) A physician, physician assistant-certified, nurse, dentist, dental hygienist, or pharmacist subject to licensure under this title must have a license application denied or a license revoked upon proof, by one of the following, that the person assisted in a suicide or attempted suicide:
(a) a contempt of court judgment for violating [section 2];
(b) a successful damage action under [section 3]; or
(c) a conviction under 45-5-105 of aiding suicide.
(2) A person subject to subsection (1) who administers, prescribes, or dispenses medication or administers procedures in order to relieve pain, or who withholds or withdraws life support in compliance with a living will does not assist in a suicide or attempted suicide, even if death is hastened by the person's action.
NEW SECTION. Section 2. Injunction against assisting in a suicide. (1) The following may seek an injunction against a physician, physician assistant-certified, nurse, dentist, dental hygienist, or pharmacist subject to licensure under this title enjoining the person from assisting in a suicide:
(a) a spouse, a parent, a child, a sibling, or an heir of a person seeking to commit suicide;
(b) a person or entity providing health care to a person seeking to commit suicide;
(c) the human rights commission; or
(d) the county attorney for the county in which either the person seeking to commit or the person seeking to assist in the commission of suicide resides.
(2) A person granted an injunction must be granted costs and attorney fees against the enjoined person.
NEW SECTION. Section 3. Action for damages. The following may seek compensatory and punitive damages against a physician, physician assistant-certified, nurse, dentist, dental hygienist, or pharmacist subject to licensure under this title who assists in a suicide or attempted suicide, even if the plaintiff consented to or knew of the suicide or attempted suicide, and is entitled to costs and attorney fees upon award of a judgment:
(1) a spouse, a parent, a child, a sibling, or an heir of a person seeking to commit suicide; or
(2) a person or entity providing health care to a person seeking to commit suicide.
Section 4. Section 27-1-221, MCA, is amended to read:
"27-1-221. Punitive damages -- liability -- proof -- award. (1) Subject to the provisions of 27-1-220 and this section, reasonable punitive damages may be awarded when the defendant has been found guilty of actual fraud or actual malice. Punitive damages may also be awarded pursuant to [section 3].
(2) A defendant is guilty of actual malice if
he the defendant has knowledge of facts or intentionally disregards facts that
create a high probability of injury to the plaintiff and:
(a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or
(b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff.
(3) A defendant is guilty of actual fraud if
he the defendant:
(a) makes a representation with knowledge of its falsity; or
(b) conceals a material fact with the purpose of depriving the plaintiff of property or legal rights or otherwise causing injury.
(4) Actual fraud exists only when the plaintiff has a right to rely upon the representation of the defendant and suffers injury as a result of that reliance. The contract definitions of fraud expressed in Title 28, chapter 2, do not apply to proof of actual fraud under this section.
(5) All elements of the claim for punitive damages must be proved by clear and convincing evidence. Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence. It is more than a preponderance of evidence but less than beyond a reasonable doubt.
(6) Liability for punitive damages must be determined by the trier of fact, whether judge or jury.
(7) (a) Evidence regarding a defendant's financial affairs, financial condition, and net worth is not admissible in a trial to determine whether a defendant is liable for punitive damages. When the jury returns a verdict finding a defendant liable for punitive damages, the amount of punitive damages must then be determined by the jury in an immediate, separate proceeding and be submitted to the judge for review as provided in subsection (7)(c). In the separate proceeding to determine the amount of punitive damages to be awarded, the defendant's financial affairs, financial condition, and net worth must be considered.
(b) When an award of punitive damages is made by the judge,
he the judge shall clearly state his the reasons for making
the award in findings of fact and conclusions of law, demonstrating consideration of each of the following matters:
(i) the nature and reprehensibility of the defendant's wrongdoing;
(ii) the extent of the defendant's wrongdoing;
(iii) the intent of the defendant in committing the wrong;
(iv) the profitability of the defendant's wrongdoing, if applicable;
(v) the amount of actual damages awarded by the jury;
(vi) the defendant's net worth;
(vii) previous awards of punitive or exemplary damages against the defendant based upon the same wrongful act;
(viii) potential or prior criminal sanctions against the defendant based upon the same wrongful act; and
(ix) any other circumstances that may operate to increase or reduce, without wholly defeating, punitive damages.
(c) The judge shall review a jury award of punitive damages, giving consideration to each of the matters listed in
subsection (7)(b). If after review the judge determines that the jury award of punitive damages should be increased or
he the judge may do so. The judge shall clearly state his the reasons for increasing, decreasing, or not increasing
or decreasing the punitive damages award of the jury in findings of fact and conclusions of law, demonstrating
consideration of each of the factors listed in subsection (7)(b).
Nothing in this This section is not intended to alter the Montana Rules of Civil Procedure governing discovery of a
defendant's financial affairs, financial condition, and net worth."