I 

112TH CONGRESS 

1ST SESSION H. R. 2363 

To establish performance-based quality measures, to establish limitations on 

recovery in health care lawsuits based on compliance with best practice 

guidelines, and to provide grants to States for administrative health 

care tribunals. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 24, 2011 

Mr. PRICE of Georgia introduced the following bill; which was referred to the 

Committee on Energy and Commerce 

A BILL 

To establish performance-based quality measures, to establish 

limitations on recovery in health care lawsuits based 

on compliance with best practice guidelines, and to provide grants to States for administrative health care tribunals. 

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. 

4 This Act may be cited as the ‘‘Health Care OverUse 

5 Reform Today Act (HealthCOURT Act) of 2011’’. 


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1 SEC. 2. LIMITATION ON RECOVERY IN A HEALTH CARE 

2 LAWSUIT BASED ON COMPLIANCE WITH BEST 

3 PRACTICE GUIDELINES. 

4 (a) SELECTION AND ISSUANCE OF BEST PRACTICES

5 GUIDELINES.— 

6 (1) IN GENERAL.—The Secretary of Health and 

7 Human Services (in this section referred to as the 

8 ‘‘Secretary’’) shall provide for the selection and 

9 issuance of best practice guidelines for treatment of 

10 medical conditions (each in this subsection referred 

11 to as a ‘‘guideline’’) in accordance with paragraphs 

12 (2) and (3). 

13 (2) DEVELOPMENT PROCESS.—Not later than 

14 90 days after the date of enactment of this Act, the 

15 Secretary shall enter into a contract with a qualified 

16 physician consensus-building organization (such as 

17 the Physician Consortium for Performance Improve18 ment), in concert and agreement with physician spe19 cialty organizations, to develop guidelines. The con20 tract shall require that the organization submit 

21 guidelines to the agency not later than 18 months 

22 after the date of enactment of this Act. 

23 (3) ISSUANCE.— 

24 (A) IN GENERAL.—Not later than 2 years 

25 after the date of the enactment of this Act, the 

26 Secretary shall, after notice and opportunity for 


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1 public comment, make a rule that provides for 

2 the establishment of the guidelines submitted 

3 under paragraph (2). 

4 (B) LIMITATION.—The Secretary may not 

5 make a rule that includes guidelines other than 

6 those submitted under paragraph (2). 

7 (C) DISSEMINATION.—The Secretary shall 

8 post such guidelines on the public Internet web 

9 page of the Department of Health and Human 

10 Services. 

11 (4) MAINTENANCE.—Not later than 4 years 

12 after the date of enactment of this Act, and every 

13 2 years thereafter, the Secretary shall review the 

14 guidelines and shall, as necessary, enter into con15 tracts similar to the contract described in paragraph 

16 (2), and issue guidelines in a manner similar to the 

17 issuance of guidelines under paragraph (3). 

18 (b) LIMITATION ON DAMAGES.— 

19 (1) LIMITATION ON NONECONOMIC DAMAGES.— 

20 In any health care lawsuit, a court may not award 

21 noneconomic damages with respect to treatment that 

22 is consistent with a guideline issued under sub23 section (a). 

24 (2) LIMITATION ON PUNITIVE DAMAGES.—In 

25 any health care lawsuit, no punitive damages may be 


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1 awarded against a health care provider based on a 

2 claim that such treatment caused the claimant harm 

3 if— 

4 (A) such treatment was subject to quality 

5 review by a qualified physician consensus-build6 ing organization and has been found to be safe, 

7 effective, and appropriate; 

8 (B) such treatment was approved in a 

9 guideline that underwent full review by such or10 ganization, public comment, approval by the 

11 Secretary, and dissemination as described in 

12 subparagraph (a); or 

13 (C) such medical treatment is generally 

14 recognized among qualified experts (including 

15 medical providers and relevant physician spe16 cialty organizations) as safe, effective, and ap17 propriate. 

18 (c) USE.— 

19 (1) INTRODUCTION AS EVIDENCE.—Guidelines 

20 established in a rule made under subsection (a) may 

21 not be introduced as evidence of negligence or devi22 ation in the standard of care in any health care law23 suit unless they have previously been introduced by 

24 the defendant. 


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1 (2) NO PRESUMPTION OF NEGLIGENCE.—There 

2 shall be no presumption of negligence if a health 

3 care provider provides treatment in a manner incon4 sistent with such guidelines. 

5 (d) CONSTRUCTION.—Nothing in this section shall be 

6 construed as preventing a State from— 

7 (1) replacing their current medical malpractice 

8 rules with rules that rely, as a defense, upon a 

9 health care provider’s compliance with a guideline 

10 issued under subsection (a); or 

11 (2) applying additional guidelines or safe-har12 bors that are in addition to, but not in lieu of, the 

13 guidelines issued under subsection (a). 

14 SEC. 3. STATE GRANTS TO CREATE ADMINISTRATIVE 

15 HEALTH CARE TRIBUNALS. 

16 Part P of title III of the Public Health Service Act 

17 (42 U.S.C. 280g et seq.) is amended by adding at the end 

18 the following: 

19 ‘‘SEC. 399T. STATE GRANTS TO CREATE ADMINISTRATIVE 

20 HEALTH CARE TRIBUNALS. 

21 ‘‘(a) IN GENERAL.—The Secretary may award grants 

22 to States for the development, implementation, and eval23 uation of administrative health care tribunals that comply 

24 with this section, for the resolution of disputes concerning 

25 injuries allegedly caused by health care providers. 


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1 ‘‘(b) CONDITIONS FOR DEMONSTRATION GRANTS.— 

2 To be eligible to receive a grant under this section, a State 

3 shall submit to the Secretary an application at such time, 

4 in such manner, and containing such information as may 

5 be required by the Secretary. A grant shall be awarded 

6 under this section on such terms and conditions as the 

7 Secretary determines appropriate. 

8 ‘‘(c) REPRESENTATION BY COUNSEL.—A State that 

9 receives a grant under this section may not preclude any 

10 party to a dispute before an administrative health care tri11 bunal operated under such grant from obtaining legal rep12 resentation during any review by the expert panel under 

13 subsection (d), the administrative health care tribunal 

14 under subsection (e), or a State court under subsection 

15 (f). 

16 ‘‘(d) EXPERT PANEL REVIEW AND EARLY OFFER

17 GUIDELINES.— 

18 ‘‘(1) IN GENERAL.—Prior to the submission of 

19 any dispute concerning injuries allegedly caused by 

20 health care providers to an administrative health 

21 care tribunal under this section, such allegations 

22 shall first be reviewed by an expert panel. 

23 ‘‘(2) COMPOSITION.— 

24 ‘‘(A) IN GENERAL.—The members of each 

25 expert panel under this subsection shall be apVerDate Mar 15 2010 23:23 Jun 30, 2011 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H2363.IH H2363

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1 pointed by the head of the State agency respon2 sible for health. Each expert panel shall be 

3 composed of no fewer than 3 members and not 

4 more than 7 members. At least one-half of such 

5 members shall be medical experts (either physi6 cians or health care professionals). 

7 ‘‘(B) LICENSURE AND EXPERTISE.—Each 

8 physician or health care professional appointed 

9 to an expert panel under subparagraph (A) 

10 shall— 

11 ‘‘(i) be appropriately credentialed or 

12 licensed in 1 or more States to deliver 

13 health care services; and 

14 ‘‘(ii) typically treat the condition, 

15 make the diagnosis, or provide the type of 

16 treatment that is under review. 

17 ‘‘(C) INDEPENDENCE.— 

18 ‘‘(i) IN GENERAL.—Subject to clause 

19 (ii), each individual appointed to an expert 

20 panel under this paragraph shall— 

21 ‘‘(I) not have a material familial, 

22 financial, or professional relationship 

23 with a party involved in the dispute 

24 reviewed by the panel; and 


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1 ‘‘(II) not otherwise have a con2 flict of interest with such a party. 

3 ‘‘(ii) EXCEPTION.—Nothing in clause 

4 (i) shall be construed to prohibit an indi5 vidual who has staff privileges at an insti6 tution where the treatment involved in the 

7 dispute was provided from serving as a 

8 member of an expert panel merely on the 

9 basis of such affiliation, if the affiliation is 

10 disclosed to the parties and neither party 

11 objects. 

12 ‘‘(D) PRACTICING HEALTH CARE PROFES13 SIONAL IN SAME FIELD.— 

14 ‘‘(i) IN GENERAL.—In a dispute be15 fore an expert panel that involves treat16 ment, or the provision of items or serv17 ices— 

18 ‘‘(I) by a physician, the medical 

19 experts on the expert panel shall be 

20 practicing physicians (allopathic or os21 teopathic) of the same or similar spe22 cialty as a physician who typically 

23 treats the condition, makes the diag24 nosis, or provides the type of treat25 ment under review; or 


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1 ‘‘(II) by a health care profes2 sional other than a physician, at least 

3 two medical experts on the expert 

4 panel shall be practicing physicians 

5 (allopathic or osteopathic) of the same 

6 or similar specialty as the health care 

7 professional who typically treats the 

8 condition, makes the diagnosis, or 

9 provides the type of treatment under 

10 review, and, if determined appropriate 

11 by the State agency, an additional 

12 medical expert shall be a practicing 

13 health care professional (other than 

14 such a physician) of such a same or 

15 similar specialty. 

16 ‘‘(ii) PRACTICING DEFINED.—In this 

17 paragraph, the term ‘practicing’ means, 

18 with respect to an individual who is a phy19 sician or other health care professional, 

20 that the individual provides health care 

21 services to individual patients on average 

22 at least 2 days a week. 

23 ‘‘(E) PEDIATRIC EXPERTISE.—In the case 

24 of dispute relating to a child, at least 1 medical 


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1 expert on the expert panel shall have expertise 

2 described in subparagraph (D)(i) in pediatrics. 

3 ‘‘(3) DETERMINATION.—After a review under 

4 paragraph (1), an expert panel shall make a deter5 mination as to the liability of the parties involved 

6 and compensation. 

7 ‘‘(4) ACCEPTANCE.—If the parties to a dispute 

8 before an expert panel under this subsection accept 

9 the determination of the expert panel concerning li10 ability and compensation, such compensation shall 

11 be paid to the claimant and the claimant shall agree 

12 to forgo any further action against the health care 

13 providers involved. 

14 ‘‘(5) FAILURE TO ACCEPT.—If any party de15 cides not to accept the expert panel’s determination, 

16 the matter shall be referred to an administrative 

17 health care tribunal created pursuant to this section. 

18 ‘‘(e) ADMINISTRATIVE HEALTH CARE TRIBUNALS.— 

19 ‘‘(1) IN GENERAL.—Upon the failure of any 

20 party to accept the determination of an expert panel 

21 under subsection (d), the parties shall have the right 

22 to request a hearing concerning the liability or com23 pensation involved by an administrative health care 

24 tribunal established by the State involved. 


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1 ‘‘(2) REQUIREMENTS.—In establishing an ad2 ministrative health care tribunal under this section, 

3 a State shall— 

4 ‘‘(A) ensure that such tribunals are pre5 sided over by special judges with health care ex6 pertise; 

7 ‘‘(B) provide authority to such judges to 

8 make binding rulings, rendered in written deci9 sions, on standards of care, causation, com10 pensation, and related issues with reliance on 

11 independent expert witnesses commissioned by 

12 the tribunal; 

13 ‘‘(C) establish gross negligence as the legal 

14 standard for the tribunal; 

15 ‘‘(D) allow the admission into evidence of 

16 the recommendation made by the expert panel 

17 under subsection (d); and 

18 ‘‘(E) provide for an appeals process to 

19 allow for review of decisions by State courts. 

20 ‘‘(f) REVIEW BY STATE COURT AFTER EXHAUSTION

21 OF ADMINISTRATIVE REMEDIES.— 

22 ‘‘(1) RIGHT TO FILE.—If any party to a dispute 

23 before a health care tribunal under subsection (e) is 

24 not satisfied with the determinations of the tribunal, 


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1 the party shall have the right to file their claim in 

2 a State court of competent jurisdiction. 

3 ‘‘(2) FORFEIT OF AWARDS.—Any party filing 

4 an action in a State court in accordance with para5 graph (1) shall forfeit any compensation award 

6 made under subsection (e). 

7 ‘‘(3) ADMISSIBILITY.—The determinations of 

8 the expert panel and the administrative health care 

9 tribunal pursuant to subsections (d) and (e) with re10 spect to a State court proceeding under paragraph 

11 (1) shall be admissible into evidence in any such 

12 State court proceeding. 

13 ‘‘(g) DEFINITION.—In this section, the term ‘health 

14 care provider’ means any person or entity required by 

15 State or Federal laws or regulations to be licensed, reg16 istered, or certified to provide health care services, and 

17 being either so licensed, registered, or certified, or exempt18 ed from such requirement by other statute or regulation. 

19 ‘‘(h) AUTHORIZATION OF APPROPRIATIONS.—There 

20 are authorized to be appropriated for any fiscal year such 

21 sums as may be necessary for purposes of making grants 

22 to States under this section.’’. 

23 SEC. 4. DEFINITIONS. 

24 In this Act: 


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1 (1) HEALTH CARE LAWSUIT.—The term 

2 ‘‘health care lawsuit’’ means any health care liability 

3 claim concerning the provision of health care goods 

4 or services brought in a Federal court or in a State 

5 court or pursuant to an alternative dispute resolu6 tion system, if such claim concerns items or services 

7 with respect to which payment is made under title 

8 XVIII, title XIX, or title XXI of the Social Security 

9 Act or for which the claimant receives a Federal tax 

10 benefit, against a health care provider, a health care 

11 organization, or the manufacturer, distributor, sup12 plier, marketer, promoter, or seller of a medical 

13 product, regardless of the theory of liability on which 

14 the claim is based, or the number of claimants, 

15 plaintiffs, defendants, or other parties, or the num16 ber of claims or causes of action, in which the claim17 ant alleges a health care liability claim. Such term 

18 does not include a claim or action which is based on 

19 criminal liability; which seeks civil fines or penalties 

20 paid to Federal government; or which is grounded in 

21 antitrust. 

22 (2) NONECONOMIC DAMAGES.—The term ‘‘non23 economic damages’’ means damages for losses for 

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1 figurement, loss of enjoyment of life, loss of society 

2 and companionship, loss of consortium, hedonic 

3 damages, injury to reputation, and any other non4 pecuniary losses. 

5 (3) PUNITIVE DAMAGES.—The term ‘‘punitive 

6 damages’’ means damages awarded, for the purpose 

7 of punishment or deterrence, and not solely for com8 pensatory purposes, against a health care provider. 

9 Punitive damages are neither economic nor non10 economic damages. 

11 (4) MEDICAL TREATMENT.—The term ‘‘medical 

12 treatment’’ means the provision of any goods or 

13 services by a health care provider or by any indi14 vidual working under the supervision of a health 

15 care provider, that relates to the diagnosis, preven16 tion, or treatment of any human disease or impair17 ment, or the assessment or care of the health of 

18 human beings. 

19 (5) HEALTH CARE PROVIDER.—The term 

20 ‘‘health care provider’’ means any person or entity 

21 required by State or Federal laws or regulations to 

22 be licensed, registered, or certified to provide health 

23 care services, and being either so licensed, reg24 istered, or certified, or exempted from such require25 ment by other statute or regulation. 


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1 (6) FEDERAL TAX BENEFIT.—A claimant shall 

2 be treated as receiving a Federal tax benefit with re3 spect to payment for items or services if— 

4 (A) such payment is compensation by in5 surance— 

6 (i) which constitutes medical care, and 

7 (ii) with respect to the payment of 

8 premiums for which the claimant, or the 

9 employer of the claimant, was allowed an 

10 exclusion from gross income, a deduction, 

11 or a credit for Federal income tax pur12 poses, 

13 (B) a deduction was allowed with respect 

14 to such payment for Federal income tax pur15 poses, or 

16 (C) such payment was from an Archer 

17 MSA (as defined in section 220(d) of the Inter18 nal Revenue Code of 1986), a health savings 

19 account (as defined in section 223(d) of such 

20 Code), a flexible spending arrangement (as de21 fined in section 106(c)(2) of such Code), or a 

22 health reimbursement arrangement which is 

23 treated as employer-provided coverage under an 


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1 accident or health plan for purposes of section 

2 106 of such Code. 

Æ 


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