Be it enacted by the Senate and House of Representatives
in General Court assembled, and by the authority of the same,
Chapter 93 of the General Laws is hereby amended by adding after section 94, inserted by chapter 424 of the acts of 1987, the following six sections:-
Section 95. For purposes of sections ninety-five to one hundred, inclusive, the following words shall have the following meanings unless the context clearly requires otherwise:-
"Listed action", any (a) claim for personal injuries made against any provider of health care services or subscriber, whether for injuries to the person making the claim or to any other person, or (b) complaint or stated intention to complain of the conduct of any provider of health care services or subscriber to any governmental agency, licensing authority or certifying authority.
"Listing service", any person, firm, corporation, partnership, unincorporated association, franchise, franchisor or other entity which compiles plaintiff personal injury listings for distribution to subscribers.
"Plaintiff", any person who has initiated a listed action.
"Plaintiff personal injury listing", a compilation or index of one or more names of persons who have initiated, or currently are initiating, or who have sought or have attempted to seek a settlement of, a listed action.
"Subscriber", any person, firm, corporation, partnership, unincorporated association, franchise, franchisor or other entity which directly provides health care services or which is engaged in the organization, administration, management, financing or insuring of the provision of health care services and which purchases, rents, borrows or otherwise obtains information contained in a plaintiff personal injury listing.
Section 96. (1) No plaintiff personal injury listing may be sold or otherwise distributed by a listing service unless it includes a clear and accurate statement of the following information as to each matter listed therein:-
(a) the names and addresses of the parties;
(b) the claim of the plaintiff; and
(c) the current status or disposition of the matter so listed including, when applicable, whether the matter has gone to a hearing or trial, whether the trier of fact has found the defendant liable, the amount of the settlement or award to plaintiff, if any, and the terms of the settlement or award.
Section 97. Every listing service shall disclose in writing to all persons named in a plaintiff personal injury listing the fact of such listing and the information contained therein. Disclosure shall also include the identity of all subscribers to whom the person's listing has been furnished and the following statement:
Your name appears in a listing of persons who have taken action against a doctor, clinic, hospital or other health care provider. You have the right to review the information on the list for accuracy and completeness. If you believe any information contained in this listing is either incorrect or incomplete, you may submit a written statement to the listing service explaining in what way the information is incomplete or inaccurate and correcting the information. You cannot be refused the services of any provider of health care services on the basis of your name appearing on this list.
If the person believes the information disclosed to him by the listing service to be either inaccurate or incomplete, such person may submit a written statement to the listing service which explains in what way the information is incomplete or inaccurate and corrects the information. The listing service shall, within twenty days of receiving the statement, correct or complete the listing service's information and shall promptly notify all subscribers of the correct or complete information; provided, however, that if the listing service believes the statement to be incorrect, it shall investigate and state in writing to the person who submitted the statement its reasons for declining to correct or complete the listing in whole or in part. The listing service shall report in all future listings that the person has submitted such a statement, and shall include as part of the listing a copy of such statement and any response of the listing service.
Section 98. It is hereby declared to be an unfair and deceptive act or practice in violation of chapter ninety-three A for a subscriber, listing service, or nonsubscriber provider of health care services, or any of their agents, employees or other representatives to:-
(a) Retaliate against a person whose name is contained in a plaintiff personal injury listing by refusing to provide, or refusing to continue to provide, or otherwise interfering with the provision of health care services to the named person or to any member of the named person's family, or by any other manner of discrimination against such person in the provision of health services.
(b) Conspire with any subscriber or provider of health care services to retaliate against a person whose name is contained in a plaintiff personal injury listing by refusing to provide, or refusing to continue to provide, or otherwise interfering with the provision of health care services to the named person or to any member of the named person's family or by any other manner of discrimination against such person in the provision of health services.
(c) Retaliate against a person whose name is contained in a plaintiff personal injury listing by refusing to enroll, insure, or allow to participate in any plan for the provision of health care services the named person or any member of the named person's family or by any other manner of discrimination against such person in the provision of health services.
(d) Violate or fail to comply with any other provision of section ninety-six or ninety-seven.
This section shall not be construed to prevent other acts or practices of a listing service or subscriber from being declared to be in violation of said chapter ninety-three A or of any other law.
In any action brought there shall be a presumption of retaliation upon a showing by the plaintiff that (a) his name was contained in a plaintiff personal injury listing, (b) said plaintiff sought services from a subscriber, and (c) said plaintiff was refused such services. This presumption may be rebutted by a showing by the defendant by a preponderance of the evidence that the plaintiff was refused such services for a valid business reason and not in whole or in part due to the appearance of the plaintiff's name in a plaintiff personal injury listing.
Section 99. Any person who is aggrieved as a result of a violation of sections ninety-six to ninety-eight, inclusive, or the attorney general, may bring an action for recovery of actual damages or one thousand dollars, whichever is greater, and other relief, including injunctive relief, civil penalties and attorney's fees as provided by chapter ninety-three A. Nothing in this section shall be construed to allow treble damages pursuant to chapter ninety-three A. Nothing in sections ninety-six to ninety-eight, inclusive, shall be construed so as to nullify or impair any other right or rights which a person may have against a subscriber or listing service at common law, by statute, or otherwise. The provisions of said sections ninety-six to ninety-eight, inclusive, are not exclusive and do not relieve the subscriber or listing services from compliance with all other applicable provisions of law.
Section 100. Any subscriber or listing service who violates any provision of sections ninety-six to ninety-eight, inclusive, or who shall counsel, aid or abet such violation, shall be liable for a civil penalty of not less than one thousand dollars nor more than five thousand dollars for each such violation, and other penalties as authorized pursuant to section four of chapter ninety-three A. The attorney general may file a civil action in the superior or district court in the name of the commonwealth to recover such penalties.