I 

111TH CONGRESS 

1ST SESSION H. R. 4007 

To authorize the Secretary of Health and Human Services to make grants 

to 5 States to establish medical malpractice tribunal pilot programs, 

and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 3, 2009 

Mr. LEE of New York (for himself and Mr. HUNTER) introduced the following 

bill; which was referred to the Committee on the Judiciary 

A BILL 

To authorize the Secretary of Health and Human Services 

to make grants to 5 States to establish medical malpractice tribunal pilot programs, 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. MEDICAL TRIBUNAL PILOT PROGRAMS. 

4 (a) AUTHORIZATION.—The Secretary of Health and 

5 Human Services is authorized to make grants to 5 States 

6 to establish pilot programs under which each medical mal7 practice case is heard in the first instance by a medical 

8 tribunal composed of a State trial court judge, a physician, 

9 and a lawyer. 


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1 (b) ELIGIBILITY.—The Secretary may only award a 

2 grant under this section to a State that— 

3 (1) has an average cost of medical malpractice 

4 insurance that exceeds the national average of such 

5 cost; 

6 (2) has not— 

7 (A) placed a limit on noneconomic dam8 ages in medical malpractice cases; or 

9 (B) established or begun to establish a 

10 medical tribunal program similar to that de11 scribed in subsection (e); and 

12 (3) submits an application at such time, in such 

13 form, and accompanied by such information and as14 surances as the Secretary may require. 

15 (c) DURATION OF GRANT.—A grant under this sec16 tion shall be awarded over 3 fiscal years. 

17 (d) USE OF FUNDS.—A State that receives a grant 

18 under this section shall use grant funds to establish and 

19 administer a medical tribunal pilot program in accordance 

20 with subsection (e). 

21 (e) REQUIREMENTS FOR MEDICAL TRIBUNAL PILOT

22 PROGRAM.—The medical tribunal pilot program required 

23 by subsection (d) shall include the following elements: 

24 (1) HEARING OF CASE IN FIRST INSTANCE.— 

25 Each medical malpractice case filed in the courts of 


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1 the State shall be heard in the first instance by a 

2 medical tribunal. 

3 (2) DETERMINATION BY MEDICAL TRIBUNAL.— 

4 The medical tribunal shall hear all evidence that 

5 would be admissible in the courts of the State and 

6 determine whether such evidence would be sufficient 

7 to support a finding for the plaintiff. 

8 (3) EFFECT OF MEDICAL TRIBUNAL’S DETER9 MINATION.— 

10 (A) If the medical tribunal determines that 

11 the evidence would be sufficient to support a 

12 finding for the plaintiff, the plaintiff may pur13 sue the case through the State’s usual judicial 

14 process. 

15 (B) If the medical tribunal determines that 

16 the evidence would be insufficient to support a 

17 finding for the plaintiff, the plaintiff may pur18 sue the case through the State’s usual judicial 

19 process only after filing with the clerk of the 

20 court in which the case is pending a bond in an 

21 amount determined to be appropriate by the 

22 State trial court judge serving on the tribunal. 

23 (4) COMPOSITION OF MEDICAL TRIBUNAL.— 

24 (A) IN GENERAL.—A medical tribunal 

25 shall be composed of a State trial court judge, 


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1 a physician licensed to practice medicine in the 

2 State, and a lawyer licensed to practice law in 

3 the State. 

4 (B) SELECTION OF PHYSICIAN AND LAW5 YER.—The State trial court judge who will 

6 serve on a medical tribunal shall select the phy7 sician from a list provided by the State medical 

8 society or association and the lawyer from a list 

9 provided by the State bar association. 

10 (C) DEFENDANT OTHER THAN PHYSI11 CIAN.—If the defendant in a medical mal12 practice case is a health care provider other 

13 than a physician, then a practitioner in such 

14 other field of health care shall serve on the 

15 medical tribunal instead of a physician. The 

16 State trial court judge who will serve on the tri17 bunal shall select such practitioner in a manner 

18 the judge considers appropriate. 

19 (f) STUDY OF EFFECTIVENESS OF MEDICAL TRIBU20 NALS AND REPORT TO CONGRESS.— 

21 (1) STUDY.—After the end of the 3rd fiscal 

22 year in which grant funds are paid under this sec23 tion, the Secretary shall collect from each State that 

24 received grant funds the following data: 


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1 (A) Any change between the 3-year period 

2 preceding the State’s receipt of grant funds and 

3 the period during which it received grant funds, 

4 and between the 1st and 2nd and the 2nd and 

5 3rd years in which the State received grant 

6 funds, in— 

7 (i) the average cost of medical mal8 practice insurance; 

9 (ii) the number of physicians actively 

10 practicing medicine; 

11 (iii) the number of medical mal12 practice liability insurance carriers; and 

13 (iv) the amounts paid by medical mal14 practice liability insurance carriers pursu15 ant to settlements or judgments in cases 

16 against their insureds. 

17 (B) The percentage of medical malpractice 

18 cases considered meritorious by the medical tri19 bunal that were settled prior to trial, compared 

20 to the percentage of all medical malpractice 

21 cases filed in the 3-year period preceding the 

22 State’s receipt of grant funds that were settled 

23 prior to trial. 

24 (C) The number of medical malpractice 

25 cases considered meritorious by the medical triVerDate Nov 24 2008 05:04 Nov 04, 2009 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H4007.IH H4007

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1 bunal that were tried to a judgment, and the 

2 number of such judgments that were for the 

3 plaintiff. 

4 (D) The number of medical malpractice 

5 cases considered nonmeritorious by the medical 

6 tribunal that were tried to a judgment, and the 

7 number of such judgments that were for the 

8 plaintiff. 

9 (2) REPORT TO CONGRESS.—Not later than 18 

10 months after the end of the 3rd fiscal year in which 

11 grant funds are paid under this section, the Sec12 retary shall submit to Congress a report setting 

13 forth the data collected under paragraph (1). 

14 (3) CASES CONSIDERED MERITORIOUS.—For 

15 purposes of paragraph (1), a case is considered mer16 itorious by the medical tribunal if the tribunal found 

17 that the evidence would be sufficient to support a 

18 finding for the plaintiff, and a case is considered 

19 nonmeritorious by the medical tribunal if the tri20 bunal found that the evidence would be insufficient 

21 to support a finding for the plaintiff. 

22 (g) MEDICAL MALPRACTICE CASE DEFINED.—In 

23 this section, the term ‘‘medical malpractice case’’ means 

24 a civil action against a health care provider in which the 

25 plaintiff alleges harm arising from an error or breach of 


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1 the standard of care by the health care provider in treating 

2 the plaintiff. 

3 (h) AUTHORIZATION OF APPROPRIATIONS.—There 

4 are authorized to be appropriated such sums as are nec5 essary to carry out this section for fiscal years 2011 

6 through 2013. 

Æ 


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