I 

109TH CONGRESS 

1ST SESSION H. R. 3359 

To limit frivolous medical malpractice lawsuits, to reform the medical malpractice insurance business in order to reduce the cost of medical malpractice insurance, to enhance patient access to medical care, and for 

other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 20, 2005 

Mr. CONYERS (for himself and Mr. DINGELL) introduced the following bill; 

which was referred to the Committee on the Judiciary, and in addition 

to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such 

provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To limit frivolous medical malpractice lawsuits, to reform 

the medical malpractice insurance business in order to 

reduce the cost of medical malpractice insurance, to enhance patient access to medical care, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Medical Malpractice and Insurance Reform Act of 

6 2005’’. 
2 

•HR 3359 IH 

1 (b) TABLE OF CONTENTS.—The table of contents for 

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

TITLE I—LIMITING FRIVOLOUS MEDICAL MALPRACTICE 

LAWSUITS 

Sec. 101. Statute of limitations. 

Sec. 102. Health care specialist affidavit. 

Sec. 103. Sanctions for frivolous actions and pleadings. 

Sec. 104. Mandatory mediation. 

Sec. 105. Limitation on punitive damages. 

Sec. 106. Reduction in premiums paid by physicians for medical malpractice insurance coverage. 

Sec. 107. Definitions. 

Sec. 108. Applicability. 

TITLE II—MEDICAL MALPRACTICE INSURANCE REFORM 

Sec. 201. Prohibition on anticompetitive activities by medical malpractice insurers. 

Sec. 202. Medical malpractice insurance price comparison. 

Sec. 203. Procedural requirements for medical malpractice insurers’ proposed 

rate increases. 

TITLE III—ENHANCING PATIENT ACCESS TO CARE THROUGH 

DIRECT ASSISTANCE 

Sec. 301. Grants and contracts regarding health provider shortages. 

Sec. 302. Health professional assignments to trauma centers through National 

Health Service Corps. 

TITLE IV—INDEPENDENT ADVISORY COMMISSION ON MEDICAL 

MALPRACTICE INSURANCE 

Sec. 401. Establishment. 

Sec. 402. Duties. 

Sec. 403. Report. 

Sec. 404. Membership. 

Sec. 405. Director and staff; experts and consultants. 

Sec. 406. Powers. 

Sec. 407. Authorization of appropriations. 

TITLE V—MEDICAL MALPRACTICE INSURANCE INFORMATION 

ADMINISTRATION 

Sec. 501. Establishment. 
3 

•HR 3359 IH 

1 TITLE I—LIMITING FRIVOLOUS 

2 MEDICAL MALPRACTICE LAW3 SUITS 

4 SEC. 101. STATUTE OF LIMITATIONS. 

5 (a) IN GENERAL.—A medical malpractice action shall 

6 be barred unless the complaint is filed within 3 years after 

7 the right of action accrues. 

8 (b) ACCRUAL.—A right of action referred to in sub9 section (a) accrues upon the last to occur of the following 

10 dates: 

11 (1) The date of the injury. 

12 (2) The date on which the claimant discovers, 

13 or through the use of reasonable diligence should 

14 have discovered, the injury. 

15 (3) The date on which the claimant becomes 18 

16 years of age. 

17 (c) APPLICABILITY.—This section shall apply to any 

18 injury occurring after the date of the enactment of this 

19 Act. 

20 SEC. 102. HEALTH CARE SPECIALIST AFFIDAVIT. 

21 (a) REQUIRING SUBMISSION WITH COMPLAINT.—No 

22 medical malpractice action may be brought by any indi23 vidual unless, at the time the individual brings the action 

24 (except as provided in subsection (b)(1)), it is accom25 panied by the affidavit of a qualified specialist that in-
4 

•HR 3359 IH 

1 cludes the specialist’s statement of belief that, based on 

2 a review of the available medical record and other relevant 

3 material, there is a reasonable and meritorious cause for 

4 the filing of the action against the defendant. 

5 (b) EXTENSION IN CERTAIN INSTANCES.— 

6 (1) IN GENERAL.—Subject to paragraph (2), 

7 subsection (a) shall not apply with respect to an in8 dividual who brings a medical malpractice action 

9 without submitting an affidavit described in such 

10 subsection if, as of the time the individual brings the 

11 action, the individual has been unable to obtain ade12 quate medical records or other information necessary 

13 to prepare the affidavit. 

14 (2) DEADLINE FOR SUBMISSION WHERE EX15 TENSION APPLIES.—In the case of an individual who 

16 brings an action for which paragraph (1) applies, 

17 the action shall be dismissed unless the individual 

18 (or the individual’s attorney) submits the affidavit 

19 described in subsection (a) not later than 90 days 

20 after obtaining the information described in such 

21 paragraph. 

22 (c) QUALIFIED SPECIALIST DEFINED.—In sub23 section (a), a ‘‘qualified specialist’’ means, with respect 

24 to a medical malpractice action, a health care professional 
5 

•HR 3359 IH 

1 who is reasonably believed by the individual bringing the 

2 action (or the individual’s attorney)— 

3 (1) to be knowledgeable in the relevant issues 

4 involved in the action; 

5 (2) to practice (or to have practiced) or to teach 

6 (or to have taught) in the same area of health care 

7 or medicine that is at issue in the action; and 

8 (3) in the case of an action against a physician, 

9 to be board certified in a specialty relating to that 

10 area of medicine. 

11 (d) CONFIDENTIALITY OF SPECIALIST.—Upon a 

12 showing of good cause by a defendant, the court may as13 certain the identity of a specialist referred to in subsection 

14 (a) while preserving confidentiality. 

15 SEC. 103. SANCTIONS FOR FRIVOLOUS ACTIONS AND 

16 PLEADINGS. 

17 (a) SIGNATURE REQUIRED.—Every pleading, written 

18 motion, and other paper in any medical malpractice action 

19 shall be signed by at least 1 attorney of record in the at20 torney’s individual name, or, if the party is not rep21 resented by an attorney, shall be signed by the party. Each 

22 paper shall state the signer’s address and telephone num23 ber, if any. An unsigned paper shall be stricken unless 

24 omission of the signature is corrected promptly after being 

25 called to the attention of the attorney or party. 
6 

•HR 3359 IH 

1 (b) CERTIFICATE OF MERIT.—A medical malpractice 

2 action shall be dismissed unless the attorney or unrepre3 sented party presenting the complaint certifies that, to the 

4 best of the person’s knowledge, information, and belief, 

5 formed after an inquiry reasonable under the cir6 cumstances,— 

7 (1) it is not being presented for any improper 

8 purpose, such as to harass or to cause unnecessary 

9 delay or needless increase in the cost of litigation; 

10 (2) the claims and other legal contentions 

11 therein are warranted by existing law or by a non12 frivolous argument for the extension, modification, 

13 or reversal of existing law or the establishment of 

14 new law; and 

15 (3) the allegations and other factual contentions 

16 have evidentiary support or, if specifically so identi17 fied, are likely to have evidentiary support after a 

18 reasonable opportunity for further investigation and 

19 discovery. 

20 (c) MANDATORY SANCTIONS.— 

21 (1) FIRST VIOLATION.—If, after notice and a 

22 reasonable opportunity to respond, a court, upon 

23 motion or upon its own initiative, determines that 

24 subsection (b) has been violated, the court shall find 

25 each attorney or party in violation in contempt of 
7 

•HR 3359 IH 

1 court and shall require the payment of costs and at2 torneys fees. The court may also impose additional 

3 appropriate sanctions, such as striking the plead4 ings, dismissing the suit, and sanctions plus interest, 

5 upon the person in violation, or upon both such per6 son and such person’s attorney or client (as the case 

7 may be). 

8 (2) SECOND VIOLATION.—If, after notice and a 

9 reasonable opportunity to respond, a court, upon 

10 motion or upon its own initiative, determines that 

11 subsection (b) has been violated and that the attor12 ney or party with respect to which the determination 

13 was made has committed one previous violation of 

14 subsection (b) before this or any other court, the 

15 court shall find each such attorney or party in con16 tempt of court and shall require the payment of 

17 costs and attorneys fees, and require such person in 

18 violation (or both such person and such person’s at19 torney or client (as the case may be)) to pay a mon20 etary fine. The court may also impose additional ap21 propriate sanctions, such as striking the pleadings, 

22 dismissing the suit and sanctions plus interest, upon 

23 such person in violation, or upon both such person 

24 and such person’s attorney or client (as the case 

25 may be). 
8 

•HR 3359 IH 

1 (3) THIRD VIOLATION.—If, after notice and a 

2 reasonable opportunity to respond, a court, upon 

3 motion or upon its own initiative, determines that 

4 subsection (b) has been violated and that the attor5 ney or party with respect to which the determination 

6 was made has committed more than one previous 

7 violation of subsection (b) before this or any other 

8 court, the court shall find each such attorney or 

9 party in contempt of court, refer each such attorney 

10 to one or more appropriate State bar associations 

11 for disciplinary proceedings, require the payment of 

12 costs and attorneys fees, and require such person in 

13 violation (or both such person and such person’s at14 torney or client (as the case may be)) to pay a mon15 etary fine. The court may also impose additional ap16 propriate sanctions, such as striking the pleadings, 

17 dismissing the suit, and sanctions plus interest, 

18 upon such person in violation, or upon both such 

19 person and such person’s attorney or client (as the 

20 case may be). 

21 SEC. 104. MANDATORY MEDIATION. 

22 (a) IN GENERAL.—In any medical malpractice ac23 tion, before such action comes to trial, mediation shall be 

24 required. Such mediation shall be conducted by one or 

25 more mediators who are selected by agreement of the par-
9 

•HR 3359 IH 

1 ties or, if the parties do not agree, who are qualified under 

2 applicable State law and selected by the court. 

3 (b) STATE OPTION TO ALLOW ARBITRATION.—In ad4 dition to mediation under subsection (a), in any medical 

5 malpractice action, arbitration shall be available to the 

6 parties if the State so provides and, if so, shall be available 

7 to the parties to the extent the parties so agree. 

8 (c) REQUIREMENTS.—Mediation under subsection (a) 

9 shall be made available by a State subject to the following 

10 requirements: 

11 (1) Participation in such mediation shall be in 

12 lieu of any alternative dispute resolution method re13 quired by any other law or by any contractual ar14 rangement made by or on behalf of the parties be15 fore the commencement of the action. 

16 (2) Each State shall disclose to residents of the 

17 State the availability and procedures for resolution 

18 of consumer grievances regarding the provision of 

19 (or failure to provide) health care services, including 

20 such mediation. 

21 (3) Each State shall provide that such medi22 ation may begin before or after, at the option of the 

23 claimant, the commencement of a medical mal24 practice action. 
10 

•HR 3359 IH 

1 (4) The Attorney General, in consultation with 

2 the Secretary of Health and Human Services, shall, 

3 by regulation, develop requirements with respect to 

4 such mediation to ensure that it is carried out in a 

5 manner that— 

6 (A) is affordable for the parties involved; 

7 (B) encourages timely resolution of claims; 

8 (C) encourages the consistent and fair res9 olution of claims; and 

10 (D) provides for reasonably convenient ac11 cess to dispute resolution. 

12 (d) FURTHER REDRESS AND ADMISSIBILITY.—Any 

13 party dissatisfied with a determination reached with re14 spect to a medical malpractice claim as a result of an al15 ternative dispute resolution method applied under this sec16 tion shall not be bound by such determination. The results 

17 of any alternative dispute resolution method applied under 

18 this section, and all statements, offers, and communica19 tions made during the application of such method, shall 

20 be inadmissible for purposes of adjudicating the claim. 

21 SEC. 105. LIMITATION ON PUNITIVE DAMAGES. 

22 (a) IN GENERAL.—Punitive damages may not be 

23 awarded in a medical malpractice action, except upon 

24 proof of— 

25 (1) gross negligence; 
11 

•HR 3359 IH 

1 (2) reckless indifference to life; or 

2 (3) an intentional act, such as voluntary intoxi3 cation or impairment by a physician, sexual abuse or 

4 misconduct, assault and battery, or falsification of 

5 records. 

6 (b) ALLOCATION.—In such a case, the award of puni7 tive damages shall be allocated 50 percent to the claimant 

8 and 50 percent to a trustee appointed by the court, to 

9 be used by such trustee in the manner specified in sub10 section (d). The court shall appoint the Secretary of 

11 Health and Human Services as such trustee. 

12 (c) EXCEPTION.—This section shall not apply with 

13 respect to an action if the applicable State law provides 

14 (or has been construed to provide) for damages in such 

15 an action that are only punitive or exemplary in nature. 

16 (d) TRUST FUND.— 

17 (1) IN GENERAL.—This subsection applies to 

18 amounts allocated to the Secretary of Health and 

19 Human Services as trustee under subsection (b). 

20 (2) AVAILABILITY.—Such amounts shall be 

21 available for use by the Secretary of Health and 

22 Human Services under paragraph (3) and shall re23 main so available until expended. 

24 (3) USE.— 
12 

•HR 3359 IH 

1 (A) Subject to subparagraph (B), the Sec2 retary of Health and Human Services, acting 

3 through the Director of the Agency for 

4 Healthcare Research and Quality, shall use the 

5 amounts to which this subsection applies for ac6 tivities to reduce medical errors and improve 

7 patient safety. 

8 (B) The Secretary of Health and Human 

9 Services may not use any part of such amounts 

10 to establish or maintain any system that re11 quires mandatory reporting of medical errors. 

12 (C) The Secretary of Health and Human 

13 Services shall promulgate regulations to estab14 lish programs and procedures for carrying out 

15 this paragraph. 

16 (4) INVESTMENT.— 

17 (A) The Secretary of Health and Human 

18 Services shall invest the amounts to which this 

19 subsection applies in such amounts as such Sec20 retary determines are not required to meet cur21 rent withdrawals. Such investments may be 

22 made only in interest-bearing obligations of the 

23 United States. For such purpose, such obliga24 tions may be acquired on original issue at the 
13 

•HR 3359 IH 

1 issue price, or by purchase of outstanding obli2 gations at the market price. 

3 (B) Any obligation acquired by the Sec4 retary in such Secretary’s capacity as trustee of 

5 such amounts may be sold by the Secretary at 

6 the market price. 

7 SEC. 106. REDUCTION IN PREMIUMS PAID BY PHYSICIANS 

8 FOR MEDICAL MALPRACTICE INSURANCE 

9 COVERAGE. 

10 (a) IN GENERAL.—Not later than 180 days after the 

11 date of the enactment of this Act, each medical mal12 practice liability insurance company shall— 

13 (1) develop a reasonable estimate of the annual 

14 amount of financial savings that will be achieved by 

15 the company as a result of this title; 

16 (2) develop and implement a plan to annually 

17 dedicate at least 50 percent of such annual savings 

18 to reduce the amount of premiums that the company 

19 charges physicians for medical malpractice liability 

20 coverage; and 

21 (3) submit to the Secretary of Health and 

22 Human Services (hereinafter referred to in this sec23 tion as the ‘‘Secretary’’) a written certification that 

24 the company has complied with paragraphs (1) and 

25 (2). 
14 

•HR 3359 IH 

1 (b) REPORTS.—Not later than one year after the date 

2 of the enactment of this Act and annually thereafter, each 

3 medical malpractice liability insurance company shall sub4 mit to the Secretary a report that identifies the percentage 

5 by which the company has reduced medical malpractice 

6 coverage premiums relative to the date of the enactment 

7 of this Act. 

8 (c) ENFORCEMENT.—A medical malpractice liability 

9 insurance company that violates a provision of this section 

10 is liable to the United States for a civil penalty in an 

11 amount assessed by the Secretary, not to exceed $11,000 

12 for each such violation. The provisions of paragraphs (3) 

13 through (5) of section 303(g) of the Federal Food, Drug, 

14 and Cosmetic Act apply to such a civil penalty to the same 

15 extent and in the same manner as such paragraphs apply 

16 to a civil penalty under such section. 

17 (d) DEFINITION.—For purposes of this section, the 

18 term ‘‘medical malpractice liability insurance company’’ 

19 means an entity in the business of providing an insurance 

20 policy under which the entity makes payment in settlement 

21 (or partial settlement) of, or in satisfaction of a judgment 

22 in, a medical malpractice action or claim. 

23 SEC. 107. DEFINITIONS. 

24 In this title, the following definitions apply: 
15 

•HR 3359 IH 

1 (1) ALTERNATIVE DISPUTE RESOLUTION METH2 OD.—The term ‘‘alternative dispute resolution meth3 od’’ means a method that provides for the resolution 

4 of medical malpractice claims in a manner other 

5 than through medical malpractice actions. 

6 (2) CLAIMANT.—The term ‘‘claimant’’ means 

7 any person who alleges a medical malpractice claim, 

8 and any person on whose behalf such a claim is al9 leged, including the decedent in the case of an action 

10 brought through or on behalf of an estate. 

11 (3) HEALTH CARE PROFESSIONAL.—The term 

12 ‘‘health care professional’’ means any individual who 

13 provides health care services in a State and who is 

14 required by the laws or regulations of the State to 

15 be licensed or certified by the State to provide such 

16 services in the State. 

17 (4) HEALTH CARE PROVIDER.—The term 

18 ‘‘health care provider’’ means any organization or 

19 institution that is engaged in the delivery of health 

20 care services in a State and that is required by the 

21 laws or regulations of the State to be licensed or cer22 tified by the State to engage in the delivery of such 

23 services in the State. 

24 (5) INJURY.—The term ‘‘injury’’ means any ill25 ness, disease, or other harm that is the subject of 
16 

•HR 3359 IH 

1 a medical malpractice action or a medical mal2 practice claim. 

3 (6) MANDATORY.—The term ‘‘mandatory’’ 

4 means required to be used by the parties to attempt 

5 to resolve a medical malpractice claim notwith6 standing any other provision of an agreement, State 

7 law, or Federal law. 

8 (7) MEDIATION.—The term ‘‘mediation’’ means 

9 a settlement process coordinated by a neutral third 

10 party and without the ultimate rendering of a formal 

11 opinion as to factual or legal findings. 

12 (8) MEDICAL MALPRACTICE ACTION.—The term 

13 ‘‘medical malpractice action’’ means an action in any 

14 State or Federal court against a physician, or other 

15 health professional, who is licensed in accordance 

16 with the requirements of the State involved that— 

17 (A) arises under the law of the State in18 volved; 

19 (B) alleges the failure of such physician or 

20 other health professional to adhere to the rel21 evant professional standard of care for the serv22 ice and specialty involved; 

23 (C) alleges death or injury proximately 

24 caused by such failure; and 
17 

•HR 3359 IH 

1 (D) seeks monetary damages, whether 

2 compensatory or punitive, as relief for such 

3 death or injury. 

4 (9) MEDICAL MALPRACTICE CLAIM.—The term 

5 ‘‘medical malpractice claim’’ means a claim forming 

6 the basis of a medical malpractice action. 

7 (10) STATE.—The term ‘‘State’’ means each of 

8 the several States, the District of Columbia, the 

9 Commonwealth of Puerto Rico, American Samoa, 

10 Guam, the Commonwealth of the Northern Mariana 

11 Islands, the Virgin Islands, and any other territory 

12 or possession of the United States. 

13 SEC. 108. APPLICABILITY. 

14 (a) IN GENERAL.—Except as provided in section 104, 

15 this title shall apply with respect to any medical mal16 practice action brought on or after the date of the enact17 ment of this Act. 

18 (b) FEDERAL COURT JURISDICTION NOT ESTAB19 LISHED ON FEDERAL QUESTION GROUNDS.—Nothing in 

20 this title shall be construed to establish any jurisdiction 

21 in the district courts of the United States over medical 

22 malpractice actions on the basis of section 1331 or 1337 

23 of title 28, United States Code. 
18 

•HR 3359 IH 

1 TITLE II—MEDICAL MAL2 PRACTICE INSURANCE RE3 FORM 

4 SEC. 201. PROHIBITION ON ANTICOMPETITIVE ACTIVITIES 

5 BY MEDICAL MALPRACTICE INSURERS. 

6 Notwithstanding any other provision of law, nothing 

7 in the Act of March 9, 1945 (15 U.S.C. 1011 et seq., com8 monly known as the ‘‘McCarran-Ferguson Act’’) shall be 

9 construed to permit commercial insurers to engage in any 

10 form of price fixing, bid rigging, or market allocations in 

11 connection with the conduct of the business of providing 

12 medical malpractice insurance. This section does not apply 

13 to the information-gathering and rate-setting activities of 

14 any State commissions of insurance, or any other State 

15 regulatory body with authority to set insurance rates. 

16 SEC. 202. MEDICAL MALPRACTICE INSURANCE PRICE COM17 PARISON. 

18 (a) INTERNET SITE.—Not later than 90 days after 

19 the date of the enactment of this Act, and after consulta20 tion with the medical malpractice insurance industry, the 

21 Secretary of Health and Human Services shall establish 

22 an interactive internet site which shall enable any health 

23 care provider licensed in the United States to obtain a 

24 quote from each medical malpractice insurer licensed to 

25 write the type of coverage sought by the provider. 
19 

•HR 3359 IH 

1 (b) ONLINE FORMS.— 

2 (1) IN GENERAL.—The internet site shall en3 able health care providers to complete an online 

4 form that shall capture a comprehensive set of infor5 mation sufficient to generate a quote for each in6 surer. The Secretary shall develop transmission soft7 ware components which allow such information to be 

8 formatted for delivery to each medical malpractice 

9 insurer based on the requirements of the computer 

10 system of the insurer. 

11 (2) PROTECTION OF CONFIDENTIALITY OF IN12 FORMATION DISCLOSED.—All information provided 

13 by a health care provider for purposes of generating 

14 a quote through the internet site shall be used only 

15 for that purpose. 

16 (c) INTEGRATION OF RATING CRITERIA.—The Sec17 retary shall integrate the rating criteria of each insurer 

18 into its online form after consultation with each insurer. 

19 The Secretary shall integrate such criteria using one of 

20 the following methods: 

21 (1) Developing a customized interface with the 

22 insurer’s own rating engine. 

23 (2) Accessing a third-party rating engine of the 

24 insurer’s choice. 
20 

•HR 3359 IH 

1 (3) Loading the carrier’s rating information 

2 into a rating engine operated by the Secretary. 

3 (4) Any other method agreed on between the 

4 Secretary and the insurer. 

5 (d) PRESENTATION OF QUOTES.—After a health care 

6 provider has answered all the questions appearing on the 

7 online form, such provider will be presented with quotes 

8 from each medical malpractice insurer licensed to write 

9 the coverage requested by the provider. 

10 (e) ACCURACY OF QUOTES.—Quotes provided at the 

11 internet site shall at all times be accurate. Whenever any 

12 insurer changes its rates, such rate changes shall be imple13 mented at the internet site by the Secretary, in consulta14 tion with the insurer, as soon as practicable, but in no 

15 event later than 10 days after such changes take effect. 

16 During any period during which an insurer has changed 

17 its rates but the Secretary has not yet implemented such 

18 changed rates on the internet site, quotes for that insurer 

19 shall not be obtainable at the internet site. 

20 (f) USER-FRIENDLY FEATURES.—The Secretary 

21 shall design the internet site to incorporate user-friendly 

22 formats and self-help guidance materials, and shall de23 velop a user-friendly internet user-interface. 

24 (g) CONTACT INFORMATION.—The internet site shall 

25 also provide contact information, including address and 
21 

•HR 3359 IH 

1 telephone number, for each medical malpractice insurer 

2 for which a provider obtains a quote at the site. 

3 (h) REPORT.—Not later than December 31, 2005, 

4 the Secretary shall submit a report to the Congress on 

5 the development, implementation and effects of the inter6 net site. Such report shall be based on— 

7 (1) the Secretary’s consultation with health 

8 care providers, medical malpractice insurers, State 

9 insurance commissioners, and other interested par10 ties; and 

11 (2) the Secretary’s analysis of other informa12 tion available to the Secretary. 

13 The report shall describe the Secretary’s views concerning 

14 the extent to which this section has contributed to increas15 ing the availability of medical malpractice insurance, and 

16 the effect this section has had on the cost of medical mal17 practice insurance. 

18 SEC. 203. PROCEDURAL REQUIREMENTS FOR MEDICAL 

19 MALPRACTICE INSURERS’ PROPOSED RATE 

20 INCREASES. 

21 (a) IN GENERAL.—Each State shall have in effect a 

22 policy under which— 

23 (1) any health care professional (as defined in 

24 title I of this Act) licensed by the State has standing 

25 in any State administrative proceeding to challenge 
22 

•HR 3359 IH 

1 a proposed rate increase in medical malpractice in2 surance; and 

3 (2) a provider of medical malpractice insurance 

4 in the State may not implement a rate increase in 

5 such insurance unless the provider, at minimum, 

6 first submits to the appropriate State agency a de7 scription of the rate increase and a substantial jus8 tification for the rate increase. 

9 (b) RULEMAKING.—The Attorney General shall pro10 mulgate rules to carry out this section. 

11 (c) EFFECTIVE DATE.—The requirements of this sec12 tion shall take effect 1 year after the date of the enact13 ment of this Act. 

14 TITLE III—ENHANCING PATIENT 

15 ACCESS TO CARE THROUGH 

16 DIRECT ASSISTANCE 

17 SEC. 301. GRANTS AND CONTRACTS REGARDING HEALTH 

18 PROVIDER SHORTAGES. 

19 Subpart I of part D of title III of the Public Health 

20 Service Act (42 U.S.C. 254b et seq.) is amended by adding 

21 at the end the following section. 
23 

•HR 3359 IH 

1 ‘‘SEC. 330L. HEALTH PROVIDER SHORTAGES RESULTING 

2 FROM COSTS OF MEDICAL MALPRACTICE IN3 SURANCE. 

4 ‘‘(a) IN GENERAL.—The Secretary, acting through 

5 the Administrator of the Health Resources and Services 

6 Administration, may make awards of grants or contracts 

7 in accordance with this section for geographic areas that, 

8 as determined by the Secretary, have a shortage of one 

9 or more types of health providers as a result of the pro10 viders making the decision to cease or curtail providing 

11 health services in the geographic areas because of the costs 

12 of maintaining malpractice insurance. 

13 ‘‘(b) RECIPIENTS OF AWARDS; EXPENDITURE.—In 

14 accordance with such criteria as the Secretary may estab15 lish: 

16 ‘‘(1) Awards under subsection (a) may be made 

17 to health providers who agree to provide health serv18 ices (or to continue providing health services, as the 

19 case may be) in geographic areas described in such 

20 subsection for the period during which payments 

21 under the awards are made to the health providers. 

22 ‘‘(2) Health providers who receive such awards 

23 may expend the awards to assist the providers with 

24 the costs of maintaining medical malpractice insur25 ance for providing health services in the geographic 

26 area for which the award is made. 
24 

•HR 3359 IH 

1 ‘‘(c) DEFINITION.—For purposes of this section, the 

2 term ‘health providers’ means physicians and other health 

3 professionals, and organizations that provide health serv4 ices (including hospitals, clinics, and group practices), that 

5 meet applicable legal requirements to provide the health 

6 services involved.’’. 

7 SEC. 302. HEALTH PROFESSIONAL ASSIGNMENTS TO TRAU8 MA CENTERS THROUGH NATIONAL HEALTH 

9 SERVICE CORPS. 

10 Section 338H of the Public Health Service Act (42 

11 U.S.C. 254q) is amended by adding at the end the fol12 lowing subsection: 

13 ‘‘(d) TRAUMA CENTERS; SEPARATE AUTHORIZATION

14 REGARDING SHORTAGES RESULTING FROM COSTS OF

15 MEDICAL MALPRACTICE INSURANCE.— 

16 ‘‘(1) IN GENERAL.—For the purpose of assign17 ing Corps surgeons, obstetricians/gynecologists, and 

18 other health professionals to trauma centers in 

19 health professional shortage areas described in para20 graph (2), there are authorized to be appropriated 

21 such sums as may be necessary for each of the fiscal 

22 years 2005 through 2008. Such authorization is in 

23 addition to any other authorization of appropriations 

24 that is available for such purpose. 
25 

•HR 3359 IH 

1 ‘‘(2) DESCRIPTION OF AREAS.—A health pro2 fessional shortage area referred to in paragraph (1) 

3 is such an area in which, as determined by the Sec4 retary, a medical facility in the area has lost its des5 ignation as a trauma center or as a particular level 

6 of trauma center, or is at significant risk of losing 

7 such a designation, as a result of one or more sur8 geons, obstetricians/gynecologists, or other health 

9 professionals making the decision to cease or curtail 

10 practicing at the facility because of the costs of 

11 maintaining malpractice insurance. For purposes of 

12 paragraph (1), (A) the term ‘trauma center’ includes 

13 such a medical facility; and (B) the Secretary may 

14 adjust the criteria for designation as a health profes15 sional shortage area to the extent necessary to make 

16 funds appropriated under paragraph (1) available 

17 with respect to any medical facility to ensure that 

18 the facility does not lose any such designation as a 

19 result of such decisions by health professionals.’’. 

20 TITLE IV—INDEPENDENT ADVI21 SORY COMMISSION ON MED22 ICAL MALPRACTICE INSUR23 ANCE 

24 SEC. 401. ESTABLISHMENT. 

25 (a) FINDINGS.—The Congress finds as follows: 
26 

•HR 3359 IH 

1 (1) The sudden rise in medical malpractice pre2 miums in regions of the United States can threaten 

3 patient access to doctors and other health providers. 

4 (2) Improving patient access to doctors and 

5 other health providers is a national priority. 

6 (b) ESTABLISHMENT.—There is established a na7 tional commission to be known as the ‘‘Independent Advi8 sory Commission on Medical Malpractice Insurance’’ (in 

9 this title referred to as the ‘‘Commission’’). 

10 SEC. 402. DUTIES. 

11 (a) IN GENERAL.—The Commission shall evaluate 

12 the causes and scope of the recent and dramatic increases 

13 in medical malpractice insurance premiums and formulate 

14 additional proposals to reduce such medical malpractice 

15 premiums and make recommendations to avoid any dra16 matic increases in medical malpractice premiums in the 

17 future, in light of proposals for tort reform regarding med18 ical malpractice. 

19 (b) CONSIDERATIONS.—In formulating proposals 

20 under this section, the Commission shall, at a minimum, 

21 consider the following: 

22 (1) Alternatives to the current medical mal23 practice tort system that would ensure adequate 

24 compensation for patients, preserve access to pro25 viders, and improve health care safety and quality. 
27 

•HR 3359 IH 

1 (2) Modifications of, and alternatives to, the ex2 isting State and Federal regulations and oversight 

3 that affect, or could affect, medical malpractice lines 

4 of insurance. 

5 (3) State and Federal reforms that would dis6 tribute the risk of medical malpractice more equi7 tably among health care providers. 

8 (4) State and Federal reforms that would more 

9 evenly distribute the risk of medical malpractice 

10 across various categories of providers. 

11 (5) The effect of a Federal medical malpractice 

12 reinsurance program administered by the Depart13 ment of Health and Human Services. 

14 (6) The effect of a Federal medical malpractice 

15 insurance program, administered by the Department 

16 of Health and Human Services, to provide medical 

17 malpractice insurance based on customary coverage 

18 terms and liability amounts in States where such in19 surance is unavailable or is unavailable at reasonable 

20 and customary terms. 

21 (7) Programs that would reduce medical errors 

22 and increase patient safety, including new innova23 tions in technology and management. 
28 

•HR 3359 IH 

1 SEC. 403. REPORT. 

2 (a) IN GENERAL.—The Commission shall transmit to 

3 Congress— 

4 (1) an initial report not later than 180 days 

5 after the date of the initial meeting of the Commis6 sion; and 

7 (2) a report not less than each year thereafter 

8 until the Commission terminates. 

9 (b) CONTENTS.—Each report transmitted under this 

10 section shall contain a detailed statement of the findings 

11 and conclusions of the Commission, including proposals 

12 for addressing the current dramatic increases in medical 

13 malpractice insurance rates and recommendations for 

14 avoiding any such dramatic increases in the future. 

15 (c) VOTING AND REPORTING REQUIREMENTS.—With 

16 respect to each proposal or recommendation contained in 

17 the report submitted under subsection (a), each member 

18 of the Commission shall vote on the proposal or rec19 ommendation, and the Commission shall include, by mem20 ber, the results of that vote in the report. 

21 SEC. 404. MEMBERSHIP. 

22 (a) NUMBER AND APPOINTMENT.—The Commission 

23 shall be composed of 15 members appointed by the Sec24 retary of Health and Human Services. 

25 (b) MEMBERSHIP.— 
29 

•HR 3359 IH 

1 (1) IN GENERAL.—The membership of the 

2 Commission shall include individuals with national 

3 recognition for their expertise in health finance and 

4 economics, actuarial science, medical malpractice in5 surance, insurance regulation, health care law, 

6 health care policy, health care access, allopathic and 

7 osteopathic physicians, other providers of health care 

8 services, patient advocacy, and other related fields, 

9 who provide a mix of different professionals, broad 

10 geographic representations, and a balance between 

11 urban and rural representatives. 

12 (2) INCLUSION.—The membership of the Com13 mission shall include the following: 

14 (A) Two individuals with expertise in 

15 health finance and economics, including one 

16 with expertise in consumer protections in the 

17 area of health finance and economics. 

18 (B) Two individuals with expertise in med19 ical malpractice insurance, representing both 

20 commercial insurance carriers and physician21 sponsored insurance carriers. 

22 (C) An individual with expertise in State 

23 insurance regulation and State insurance mar24 kets. 

25 (D) An individual representing physicians. 
30 

•HR 3359 IH 

1 (E) An individual with expertise in issues 

2 affecting hospitals, nursing homes, nurses, and 

3 other providers. 

4 (F) Two individuals representing patient 

5 interests. 

6 (G) Two individuals with expertise in 

7 health care law or health care policy. 

8 (H) An individual with expertise in rep9 resenting patients in malpractice lawsuits. 

10 (3) MAJORITY.—The total number of individ11 uals who are directly involved with the provision or 

12 management of malpractice insurance, representing 

13 physicians or other providers, or representing physi14 cians or other providers in malpractice lawsuits, 

15 shall not constitute a majority of the membership of 

16 the Commission. 

17 (4) ETHICAL DISCLOSURE.—The Secretary of 

18 Health and Human Services shall establish a system 

19 for public disclosure by members of the Commission 

20 of financial or other potential conflicts of interest re21 lating to such members. 

22 (c) TERMS.— 

23 (1) IN GENERAL.—The terms of the members 

24 of the Commission shall be for 3 years except that 

25 the Secretary of Health and Human Services shall 
31 

•HR 3359 IH 

1 designate staggered terms for the members first ap2 pointed. 

3 (2) VACANCIES.—Any member appointed to fill 

4 a vacancy occurring before the expiration of the 

5 term for which the member’s predecessor was ap6 pointed shall be appointed only for the remainder of 

7 that term. A member may serve after the expiration 

8 of that member’s term until a successor has taken 

9 office. A vacancy in the Commission shall be filled 

10 in the manner in which the original appointment was 

11 made. 

12 (3) COMPENSATION.—Members of the Commis13 sion shall be compensated in accordance with section 

14 1805(c)(4) of the Social Security Act. 

15 (4) CHAIRMAN; VICE CHAIRMAN.—The Sec16 retary of Health and Human Services shall des17 ignate at the time of appointment a member of the 

18 Commission as Chairman and a member as Vice 

19 Chairman. In the case of vacancy of the Chairman20 ship or Vice Chairmanship, the Secretary may des21 ignate another member for the remainder of that 

22 member’s term. 

23 (5) MEETINGS.— 

24 (A) IN GENERAL.—The Commission shall 

25 meet at the call of the Chairman. 
32 

•HR 3359 IH 

1 (B) INITIAL MEETING.—The Commission 

2 shall hold an initial meeting not later than the 

3 date that is 1 year after the date of the enact4 ment of this title, or the date that is 3 months 

5 after the appointment of all the members of the 

6 Commission, whichever occurs earlier. 

7 SEC. 405. DIRECTOR AND STAFF; EXPERTS AND CONSULT8 ANTS. 

9 Subject to such review as the Secretary of Health and 

10 Human Services deems necessary to assure the efficient 

11 administration of the Commission, the Commission may— 

12 (1) employ and fix the compensation of an Ex13 ecutive Director (subject to the approval of the Sec14 retary) and such other personnel as may be nec15 essary to carry out its duties (without regard to the 

16 provisions of title 5, United States Code, governing 

17 appointments in the competitive service); 

18 (2) seek such assistance and support as may be 

19 required in the performance of its duties from ap20 propriate Federal departments and agencies; 

21 (3) enter into contracts or make other arrange22 ments, as may be necessary for the conduct of the 

23 work of the Commission (without regard to section 

24 3709 of the Revised Statutes (41 U.S.C. 5)); 
33 

•HR 3359 IH 

1 (4) make advance, progress, and other pay2 ments which relate to the work of the Commission; 

3 (5) provide transportation and subsistence for 

4 persons serving without compensation; and 

5 (6) prescribe such rules and regulations as it 

6 deems necessary with respect to the internal organi7 zation and operation of the Commission. 

8 SEC. 406. POWERS. 

9 (a) OBTAINING OFFICIAL DATA.—The Commission 

10 may secure directly from any department or agency of the 

11 United States information necessary to enable it to carry 

12 out this section. Upon request of the Chairman, the head 

13 of that department or agency shall furnish that informa14 tion to the Commission on an agreed upon schedule. 

15 (b) DATA COLLECTION.—In order to carry out its 

16 functions, the Commission shall— 

17 (1) utilize existing information, both published 

18 and unpublished, where possible, collected and as19 sessed either by its own staff or under other ar20 rangements made in accordance with this section, in21 cluding data collected by the Administrator of the 

22 Medical Malpractice Insurance Information Adminis23 tration under section 501; 
34 

•HR 3359 IH 

1 (2) carry out, or award grants or contracts for, 

2 original research and experimentation, where exist3 ing information is inadequate; and 

4 (3) adopt procedures allowing any interested 

5 party to submit information for the Commission’s 

6 use in making reports and recommendations. 

7 (c) ACCESS OF GENERAL ACCOUNTING OFFICE TO

8 INFORMATION.—The Comptroller General of the United 

9 States shall have unrestricted access to all deliberations, 

10 records, and nonproprietary data of the Commission, im11 mediately upon request. 

12 (d) PERIODIC AUDIT.—The Commission shall be sub13 ject to periodic audit by the Comptroller General of the 

14 United States. 

15 SEC. 407. AUTHORIZATION OF APPROPRIATIONS. 

16 (a) IN GENERAL.—There are authorized to be appro17 priated such sums as may be necessary to carry out this 

18 title for each of fiscal years 2005 through 2009. 

19 (b) REQUESTS FOR APPROPRIATIONS.—The Commis20 sion shall submit requests for appropriations in the same 

21 manner as the Secretary of Health and Human Services 

22 submits requests for appropriations, but amounts appro23 priated for the Commission shall be separate from 

24 amounts appropriated for the Secretary. 
35 

•HR 3359 IH 

1 TITLE V—MEDICAL MAL2 PRACTICE INSURANCE IN3 FORMATION ADMINISTRA4 TION 

5 SEC. 501. ESTABLISHMENT. 

6 (a) IN GENERAL.—Within the Department of Health 

7 and Human Services there is established the Medical Mal8 practice Insurance Information Administration to be head9 ed by an Administrator (in this title referred to as the 

10 ‘‘Administration’’), appointed by the Secretary of Health 

11 and Human Services. 

12 (b) DUTIES.—Not later than 180 days after the date 

13 of the enactment of this Act the Administrator shall, by 

14 regulation, identify the types of data that are necessary 

15 to properly evaluate the medical malpractice insurance 

16 market. Such types of data shall include at least the fol17 lowing: 

18 (1) The frequency of medical malpractice claims 

19 paid. 

20 (2) The severity of medical malpractice claims 

21 paid. 

22 (3) The portion of losses for medical mal23 practice claims as part of settlements. 
36 

•HR 3359 IH 

1 (4) The portion of losses for medical mal2 practice claims both awarded and paid as the result 

3 of trial verdicts. 

4 (5) The division of losses for medical mal5 practice claims between economic and noneconomic 

6 damages. 

7 (c) REQUIREMENT FOR REPORTING.—In order to col8 lect the types of data identified under subsection (b), the 

9 Administrator shall require any person issuing medical 

10 malpractice insurance policies, or paying claims pursuant 

11 to such a policy, to submit the data of the types described 

12 in subsection (b) in a manner and a frequency that would 

13 allow for analysis to identify local, State, regional and na14 tional trends in the medical malpractice insurance mar15 kets. 

16 (d) COMPLIANCE.— 

17 (1) INJUNCTIVE RELIEF.—The Administrator 

18 may seek such injunctive and remedial relief as may 

19 be necessary to compel the submittal of data under 

20 subsection (c). 

21 (2) CIVIL MONEY PENALTY.—In addition to the 

22 authority provided under paragraph (1), the Admin23 istrator is authorized to impose for each for the fail24 ure of a person to submit data under subsection (c) 

25 a civil money penalty of not to exceed $10,000. The 
37 

•HR 3359 IH 

1 provisions of section 1128A of the Social Security 

2 Act (other than subsections (a) and (b)) shall apply 

3 to a civil money penalty under the previous sentence 

4 in the same manner as such provisions apply to a 

5 civil money penalty under subsection (a) of such sec6 tion except that for purposes of this paragraph, any 

7 reference to the Secretary is deemed a reference to 

8 the Admnistrator. 

9 (e) AVAILABILITY OF INFORMATION.— 

10 (1) TO INDEPENDENT COMMISSION.—Informa11 tion submitted to the Administrator under this sec12 tion shall be available to the Independent Advisory 

13 Commission on Medical Malpractice Insurance, es14 tablished under section 401(b). 

15 (2) TO PUBLIC.—Information submitted to the 

16 Administrator under this section shall be made avail17 able to the public in a form that does not disclose 

18 the identity of the person who submitted the infor19 mation. 

20 SEC. 502. AUTHORIZATION OF APPROPRIATIONS. 

21 There are authorized to be appropriated to carry out 

22 this section such sums as may be necessary. 

Æ