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[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2363 Introduced in House (IH)]

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Health Care OverUse Reform Today Act 
(HealthCOURT Act) of 2011''.

SEC. 2. LIMITATION ON RECOVERY IN A HEALTH CARE LAWSUIT BASED ON 
              COMPLIANCE WITH BEST PRACTICE GUIDELINES.

    (a) Selection and Issuance of Best Practices Guidelines.--
            (1) In general.--The Secretary of Health and Human Services 
        (in this section referred to as the ``Secretary'') shall 
        provide for the selection and issuance of best practice 
        guidelines for treatment of medical conditions (each in this 
        subsection referred to as a ``guideline'') in accordance with 
        paragraphs (2) and (3).
            (2) Development process.--Not later than 90 days after the 
        date of enactment of this Act, the Secretary shall enter into a 
        contract with a qualified physician consensus-building 
        organization (such as the Physician Consortium for Performance 
        Improvement), in concert and agreement with physician specialty 
        organizations, to develop guidelines. The contract shall 
        require that the organization submit guidelines to the agency 
        not later than 18 months after the date of enactment of this 
        Act.
            (3) Issuance.--
                    (A) In general.--Not later than 2 years after the 
                date of the enactment of this Act, the Secretary shall, 
                after notice and opportunity for public comment, make a 
                rule that provides for the establishment of the 
                guidelines submitted under paragraph (2).
                    (B) Limitation.--The Secretary may not make a rule 
                that includes guidelines other than those submitted 
                under paragraph (2).
                    (C) Dissemination.--The Secretary shall post such 
                guidelines on the public Internet web page of the 
                Department of Health and Human Services.
            (4) Maintenance.--Not later than 4 years after the date of 
        enactment of this Act, and every 2 years thereafter, the 
        Secretary shall review the guidelines and shall, as necessary, 
        enter into contracts similar to the contract described in 
        paragraph (2), and issue guidelines in a manner similar to the 
        issuance of guidelines under paragraph (3).
    (b) Limitation on Damages.--
            (1) Limitation on noneconomic damages.--In any health care 
        lawsuit, a court may not award noneconomic damages with respect 
        to treatment that is consistent with a guideline issued under 
        subsection (a).
            (2) Limitation on punitive damages.--In any health care 
        lawsuit, no punitive damages may be awarded against a health 
        care provider based on a claim that such treatment caused the 
        claimant harm if--
                    (A) such treatment was subject to quality review by 
                a qualified physician consensus-building organization 
                and has been found to be safe, effective, and 
                appropriate;
                    (B) such treatment was approved in a guideline that 
                underwent full review by such organization, public 
                comment, approval by the Secretary, and dissemination 
                as described in subparagraph (a); or
                    (C) such medical treatment is generally recognized 
                among qualified experts (including medical providers 
                and relevant physician specialty organizations) as 
                safe, effective, and appropriate.
    (c) Use.--
            (1) Introduction as evidence.--Guidelines established in a 
        rule made under subsection (a) may not be introduced as 
        evidence of negligence or deviation in the standard of care in 
        any health care lawsuit unless they have previously been 
        introduced by the defendant.
            (2) No presumption of negligence.--There shall be no 
        presumption of negligence if a health care provider provides 
        treatment in a manner inconsistent with such guidelines.
    (d) Construction.--Nothing in this section shall be construed as 
preventing a State from--
            (1) replacing their current medical malpractice rules with 
        rules that rely, as a defense, upon a health care provider's 
        compliance with a guideline issued under subsection (a); or
            (2) applying additional guidelines or safe-harbors that are 
        in addition to, but not in lieu of, the guidelines issued under 
        subsection (a).

SEC. 3. STATE GRANTS TO CREATE ADMINISTRATIVE HEALTH CARE TRIBUNALS.

    Part P of title III of the Public Health Service Act (42 U.S.C. 
280g et seq.) is amended by adding at the end the following:

``SEC. 399T. STATE GRANTS TO CREATE ADMINISTRATIVE HEALTH CARE 
              TRIBUNALS.

    ``(a) In General.--The Secretary may award grants to States for the 
development, implementation, and evaluation of administrative health 
care tribunals that comply with this section, for the resolution of 
disputes concerning injuries allegedly caused by health care providers.
    ``(b) Conditions for Demonstration Grants.--To be eligible to 
receive a grant under this section, a State shall submit to the 
Secretary an application at such time, in such manner, and containing 
such information as may be required by the Secretary. A grant shall be 
awarded under this section on such terms and conditions as the 
Secretary determines appropriate.
    ``(c) Representation by Counsel.--A State that receives a grant 
under this section may not preclude any party to a dispute before an 
administrative health care tribunal operated under such grant from 
obtaining legal representation during any review by the expert panel 
under subsection (d), the administrative health care tribunal under 
subsection (e), or a State court under subsection (f).
    ``(d) Expert Panel Review and Early Offer Guidelines.--
            ``(1) In general.--Prior to the submission of any dispute 
        concerning injuries allegedly caused by health care providers 
        to an administrative health care tribunal under this section, 
        such allegations shall first be reviewed by an expert panel.
            ``(2) Composition.--
                    ``(A) In general.--The members of each expert panel 
                under this subsection shall be appointed by the head of 
                the State agency responsible for health. Each expert 
                panel shall be composed of no fewer than 3 members and 
                not more than 7 members. At least one-half of such 
                members shall be medical experts (either physicians or 
                health care professionals).
                    ``(B) Licensure and expertise.--Each physician or 
                health care professional appointed to an expert panel 
                under subparagraph (A) shall--
                            ``(i) be appropriately credentialed or 
                        licensed in 1 or more States to deliver health 
                        care services; and
                            ``(ii) typically treat the condition, make 
                        the diagnosis, or provide the type of treatment 
                        that is under review.
                    ``(C) Independence.--
                            ``(i) In general.--Subject to clause (ii), 
                        each individual appointed to an expert panel 
                        under this paragraph shall--
                                    ``(I) not have a material familial, 
                                financial, or professional relationship 
                                with a party involved in the dispute 
                                reviewed by the panel; and
                                    ``(II) not otherwise have a 
                                conflict of interest with such a party.
                            ``(ii) Exception.--Nothing in clause (i) 
                        shall be construed to prohibit an individual 
                        who has staff privileges at an institution 
                        where the treatment involved in the dispute was 
                        provided from serving as a member of an expert 
                        panel merely on the basis of such affiliation, 
                        if the affiliation is disclosed to the parties 
                        and neither party objects.
                    ``(D) Practicing health care professional in same 
                field.--
                            ``(i) In general.--In a dispute before an 
                        expert panel that involves treatment, or the 
                        provision of items or services--
                                    ``(I) by a physician, the medical 
                                experts on the expert panel shall be 
                                practicing physicians (allopathic or 
                                osteopathic) of the same or similar 
                                specialty as a physician who typically 
                                treats the condition, makes the 
                                diagnosis, or provides the type of 
                                treatment under review; or
                                    ``(II) by a health care 
                                professional other than a physician, at 
                                least two medical experts on the expert 
                                panel shall be practicing physicians 
                                (allopathic or osteopathic) of the same 
                                or similar specialty as the health care 
                                professional who typically treats the 
                                condition, makes the diagnosis, or 
                                provides the type of treatment under 
                                review, and, if determined appropriate 
                                by the State agency, an additional 
                                medical expert shall be a practicing 
                                health care professional (other than 
                                such a physician) of such a same or 
                                similar specialty.
                            ``(ii) Practicing defined.--In this 
                        paragraph, the term `practicing' means, with 
                        respect to an individual who is a physician or 
                        other health care professional, that the 
                        individual provides health care services to 
                        individual patients on average at least 2 days 
                        a week.
                    ``(E) Pediatric expertise.--In the case of dispute 
                relating to a child, at least 1 medical expert on the 
                expert panel shall have expertise described in 
                subparagraph (D)(i) in pediatrics.
            ``(3) Determination.--After a review under paragraph (1), 
        an expert panel shall make a determination as to the liability 
        of the parties involved and compensation.
            ``(4) Acceptance.--If the parties to a dispute before an 
        expert panel under this subsection accept the determination of 
        the expert panel concerning liability and compensation, such 
        compensation shall be paid to the claimant and the claimant 
        shall agree to forgo any further action against the health care 
        providers involved.
            ``(5) Failure to accept.--If any party decides not to 
        accept the expert panel's determination, the matter shall be 
        referred to an administrative health care tribunal created 
        pursuant to this section.
    ``(e) Administrative Health Care Tribunals.--
            ``(1) In general.--Upon the failure of any party to accept 
        the determination of an expert panel under subsection (d), the 
        parties shall have the right to request a hearing concerning 
        the liability or compensation involved by an administrative 
        health care tribunal established by the State involved.
            ``(2) Requirements.--In establishing an administrative 
        health care tribunal under this section, a State shall--
                    ``(A) ensure that such tribunals are presided over 
                by special judges with health care expertise;
                    ``(B) provide authority to such judges to make 
                binding rulings, rendered in written decisions, on 
                standards of care, causation, compensation, and related 
                issues with reliance on independent expert witnesses 
                commissioned by the tribunal;
                    ``(C) establish gross negligence as the legal 
                standard for the tribunal;
                    ``(D) allow the admission into evidence of the 
                recommendation made by the expert panel under 
                subsection (d); and
                    ``(E) provide for an appeals process to allow for 
                review of decisions by State courts.
    ``(f) Review by State Court After Exhaustion of Administrative 
Remedies.--
            ``(1) Right to file.--If any party to a dispute before a 
        health care tribunal under subsection (e) is not satisfied with 
        the determinations of the tribunal, the party shall have the 
        right to file their claim in a State court of competent 
        jurisdiction.
            ``(2) Forfeit of awards.--Any party filing an action in a 
        State court in accordance with paragraph (1) shall forfeit any 
        compensation award made under subsection (e).
            ``(3) Admissibility.--The determinations of the expert 
        panel and the administrative health care tribunal pursuant to 
        subsections (d) and (e) with respect to a State court 
        proceeding under paragraph (1) shall be admissible into 
        evidence in any such State court proceeding.
    ``(g) Definition.--In this section, the term `health care provider' 
means any person or entity required by State or Federal laws or 
regulations to be licensed, registered, or certified to provide health 
care services, and being either so licensed, registered, or certified, 
or exempted from such requirement by other statute or regulation.
    ``(h) Authorization of Appropriations.--There are authorized to be 
appropriated for any fiscal year such sums as may be necessary for 
purposes of making grants to States under this section.''.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Health care lawsuit.--The term ``health care lawsuit'' 
        means any health care liability claim concerning the provision 
        of health care goods or services brought in a Federal court or 
        in a State court or pursuant to an alternative dispute 
        resolution system, if such claim concerns items or services 
        with respect to which payment is made under title XVIII, title 
        XIX, or title XXI of the Social Security Act or for which the 
        claimant receives a Federal tax benefit, against a health care 
        provider, a health care organization, or the manufacturer, 
        distributor, supplier, marketer, promoter, or seller of a 
        medical product, regardless of the theory of liability on which 
        the claim is based, or the number of claimants, plaintiffs, 
        defendants, or other parties, or the number of claims or causes 
        of action, in which the claimant alleges a health care 
        liability claim. Such term does not include a claim or action 
        which is based on criminal liability; which seeks civil fines 
        or penalties paid to Federal government; or which is grounded 
        in antitrust.
            (2) Noneconomic damages.--The term ``noneconomic damages'' 
        means damages for losses for physical and emotional pain, 
        suffering, inconvenience, physical impairment, mental anguish, 
        disfigurement, loss of enjoyment of life, loss of society and 
        companionship, loss of consortium, hedonic damages, injury to 
        reputation, and any other nonpecuniary losses.
            (3) Punitive damages.--The term ``punitive damages'' means 
        damages awarded, for the purpose of punishment or deterrence, 
        and not solely for compensatory purposes, against a health care 
        provider. Punitive damages are neither economic nor noneconomic 
        damages.
            (4) Medical treatment.--The term ``medical treatment'' 
        means the provision of any goods or services by a health care 
        provider or by any individual working under the supervision of 
        a health care provider, that relates to the diagnosis, 
        prevention, or treatment of any human disease or impairment, or 
        the assessment or care of the health of human beings.
            (5) Health care provider.--The term ``health care 
        provider'' means any person or entity required by State or 
        Federal laws or regulations to be licensed, registered, or 
        certified to provide health care services, and being either so 
        licensed, registered, or certified, or exempted from such 
        requirement by other statute or regulation.
            (6) Federal tax benefit.--A claimant shall be treated as 
        receiving a Federal tax benefit with respect to payment for 
        items or services if--
                    (A) such payment is compensation by insurance--
                            (i) which constitutes medical care, and
                            (ii) with respect to the payment of 
                        premiums for which the claimant, or the 
                        employer of the claimant, was allowed an 
                        exclusion from gross income, a deduction, or a 
                        credit for Federal income tax purposes,
                    (B) a deduction was allowed with respect to such 
                payment for Federal income tax purposes, or
                    (C) such payment was from an Archer MSA (as defined 
                in section 220(d) of the Internal Revenue Code of 
                1986), a health savings account (as defined in section 
                223(d) of such Code), a flexible spending arrangement 
                (as defined in section 106(c)(2) of such Code), or a 
                health reimbursement arrangement which is treated as 
                employer-provided coverage under an accident or health 
                plan for purposes of section 106 of such Code.
                                 <all>
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