I 

111TH CONGRESS 

1ST SESSION H. R. 3372 

To establish Medicare performance-based quality measures, to establish an 

affirmative defense in medical malpractice actions based on compliance 

with best practices guidelines, and to provide grants to States for administrative health care tribunals. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 29, 2009 

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

Committee on Energy and Commerce, and in addition to the Committee 

on Ways and Means, 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 establish Medicare performance-based quality measures, 

to establish an affirmative defense in medical malpractice 

actions based on compliance with best practices 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 2009’’. 


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1 SEC. 2. ESTABLISHMENT OF PERFORMANCE-BASED QUAL2 ITY MEASURES. 

3 Not later than January 1, 2010, the Secretary of 

4 Health and Human Services shall submit to Congress a 

5 proposal for a formalized process for the development of 

6 performance-based quality measures that could be applied 

7 to physicians’ services under the Medicare program under 

8 title XVIII of the Social Security Act. Such proposal shall 

9 be in concert and agreement with the Physician Consor10 tium for Performance Improvement and shall only utilize 

11 measures agreed upon by each physician specialty organi12 zation. 

13 SEC. 3. AFFIRMATIVE DEFENSE BASED ON COMPLIANCE 

14 WITH BEST PRACTICE GUIDELINES. 

15 (a) SELECTION AND ISSUANCE OF BEST PRACTICES

16 GUIDELINES.— 

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

18 Human Services (in this section referred to as the 

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

20 issuance of best practice guidelines (each in this sub21 section referred to as a ‘‘guideline’’) in accordance 

22 with paragraphs (2) and (3). 

23 (2) DEVELOPMENT PROCESS.—Not later than 

24 90 days after the date of the enactment of this Act, 

25 the Secretary shall enter into a contract with a 

26 qualified physician consensus-building organization 


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1 (such as the Physician Consortium for Performance 

2 Improvement), in concert and agreement with physi3 cian specialty organizations, to develop guidelines for 

4 treatment of medical conditions for application 

5 under subsection (b). Under the contract, the orga6 nization shall take into consideration any endorsed 

7 performance-based quality measures described in 

8 section 2. Under the contract and not later than 18 

9 months after the date of the enactment of this Act, 

10 the organization shall submit best practice guidelines 

11 for issuance as guidelines under paragraph (3). 

12 (3) ISSUANCE.— 

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

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

15 Secretary shall issue, by regulation, after notice 

16 and opportunity for public comment, guidelines 

17 that have been recommended under paragraph 

18 (2) for application under subsection (b). 

19 (B) LIMITATION.—The Secretary may not 

20 issue guidelines unless they have been approved 

21 or endorsed by qualified physician consensus22 building organization involved and physician 

23 specialty organizations. 

24 (C) DISSEMINATION.—The Secretary shall 

25 broadly disseminate the guidelines so issued. 


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1 (b) LIMITATION ON DAMAGES.— 

2 (1) LIMITATION ON NONECONOMIC DAMAGES.— 

3 In any health care lawsuit, no noneconomic damages 

4 may awarded with respect to treatment that is with5 in a guideline issued under subsection (a). 

6 (2) LIMITATION ON PUNITIVE DAMAGES.—In 

7 any health care lawsuit, no punitive damages may be 

8 awarded against a health care practitioner based on 

9 a claim that such treatment caused the claimant 

10 harm if— 

11 (A) such treatment was subject to the 

12 quality review by a qualified physician con13 sensus-building organization; 

14 (B) such treatment was approved in a 

15 guideline that underwent full review by such or16 ganization, public comment, approval by the 

17 Secretary, and dissemination as described in 

18 subparagraph (a); and 

19 (C) such medical treatment is generally 

20 recognized among qualified experts (including 

21 medical providers and relevant physician spe22 cialty organizations) as safe, effective, and ap23 propriate. 

24 (c) USE.— 


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1 (1) INTRODUCTION AS EVIDENCE.—Guidelines 

2 under subsection (a) may not be introduced as evi3 dence of negligence or deviation in the standard of 

4 care in any civil action unless they have previously 

5 been introduced by the defendant. 

6 (2) NO PRESUMPTION OF NEGLIGENCE.—There 

7 would be no presumption of negligence if a partici8 pating physician does not adhere to such guidelines. 

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

10 construed as preventing a State from— 

11 (1) replacing their current medical malpractice 

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

13 health care provider’s compliance with a guideline 

14 issued under subsection (a); or 

15 (2) applying additional guidelines or safe-har16 bors that are in addition to, but not in lieu of, the 

17 guidelines issued under subsection (a). 

18 SEC. 4. STATE GRANTS TO CREATE ADMINISTRATIVE 

19 HEALTH CARE TRIBUNALS. 

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

21 (42 U.S.C. 280g et seq.) is amended by adding at the end 

22 the following: 


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

2 HEALTH CARE TRIBUNALS. 

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

4 to States for the development, implementation, and eval5 uation of administrative health care tribunals that comply 

6 with this section, for the resolution of disputes concerning 

7 injuries allegedly caused by health care providers. 

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

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

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

11 in such manner, and containing such information as may 

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

13 under this section on such terms and conditions as the 

14 Secretary determines appropriate. 

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

16 receives a grant under this section may not preclude any 

17 party to a dispute before an administrative health care tri18 bunal operated under such grant from obtaining legal rep19 resentation during any review by the expert panel under 

20 subsection (d), the administrative health care tribunal 

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

22 (f). 

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

24 GUIDELINES.— 

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

26 any dispute concerning injuries allegedly caused by 


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1 health care providers to an administrative health 

2 care tribunal under this section, such allegations 

3 shall first be reviewed by an expert panel. 

4 ‘‘(2) COMPOSITION.— 

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

6 expert panel under this subsection shall be ap7 pointed by the head of the State agency respon8 sible for health. Each expert panel shall be 

9 composed of no fewer than 3 members and not 

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

11 members shall be medical experts (either physi12 cians or health care professionals). 

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

14 physician or health care professional appointed 

15 to an expert panel under subparagraph (A) 

16 shall— 

17 ‘‘(i) be appropriately credentialed or 

18 licensed in 1 or more States to deliver 

19 health care services; and 

20 ‘‘(ii) typically treat the condition, 

21 make the diagnosis, or provide the type of 

22 treatment that is under review. 

23 ‘‘(C) INDEPENDENCE.— 


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

2 (ii), each individual appointed to an expert 

3 panel under this paragraph shall— 

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

5 financial, or professional relationship 

6 with a party involved in the dispute 

7 reviewed by the panel; and 

8 ‘‘(II) not otherwise have a con9 flict of interest with such a party. 

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

11 (i) shall be construed to prohibit an indi12 vidual who has staff privileges at an insti13 tution where the treatment involved in the 

14 dispute was provided from serving as a 

15 member of an expert panel merely on the 

16 basis of such affiliation, if the affiliation is 

17 disclosed to the parties and neither party 

18 objects. 

19 ‘‘(D) PRACTICING HEALTH CARE PROFES20 SIONAL IN SAME FIELD.— 

21 ‘‘(i) IN GENERAL.—In a dispute be22 fore an expert panel that involves treat23 ment, or the provision of items or serv24 ices— 


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1 ‘‘(I) by a physician, the medical 

2 experts on the expert panel shall be 

3 practicing physicians (allopathic or os4 teopathic) of the same or similar spe5 cialty as a physician who typically 

6 treats the condition, makes the diag7 nosis, or provides the type of treat8 ment under review; or 

9 ‘‘(II) by a health care profes10 sional other than a physician, at least 

11 two medical experts on the expert 

12 panel shall be practicing physicians 

13 (allopathic or osteopathic) of the same 

14 or similar specialty as the health care 

15 professional who typically treats the 

16 condition, makes the diagnosis, or 

17 provides the type of treatment under 

18 review, and, if determined appropriate 

19 by the State agency, an additional 

20 medical expert shall be a practicing 

21 health care professional (other than 

22 such a physician) of such a same or 

23 similar specialty. 

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

25 paragraph, the term ‘practicing’ means, 


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1 with respect to an individual who is a phy2 sician or other health care professional, 

3 that the individual provides health care 

4 services to individual patients on average 

5 at least 2 days a week. 

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

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

8 expert on the expert panel shall have expertise 

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

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

11 paragraph (1), an expert panel shall make a deter12 mination as to the liability of the parties involved 

13 and compensation. 

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

15 before an expert panel under this subsection accept 

16 the determination of the expert panel concerning li17 ability and compensation, such compensation shall 

18 be paid to the claimant and the claimant shall agree 

19 to forgo any further action against the health care 

20 providers involved. 

21 ‘‘(5) FAILURE TO ACCEPT.—If any party de22 cides not to accept the expert panel’s determination, 

23 the matter shall be referred to an administrative 

24 health care tribunal created pursuant to this section. 

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


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

2 party to accept the determination of an expert panel 

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

4 to request a hearing concerning the liability or com5 pensation involved by an administrative health care 

6 tribunal established by the State involved. 

7 ‘‘(2) REQUIREMENTS.—In establishing an ad8 ministrative health care tribunal under this section, 

9 a State shall— 

10 ‘‘(A) ensure that such tribunals are pre11 sided over by special judges with health care ex12 pertise; 

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

14 make binding rulings, rendered in written deci15 sions, on standards of care, causation, com16 pensation, and related issues with reliance on 

17 independent expert witnesses commissioned by 

18 the tribunal; 

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

20 standard for the tribunal; 

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

22 the recommendation made by the expert panel 

23 under subsection (d); and 

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

25 allow for review of decisions by State courts. 


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

2 OF ADMINISTRATIVE REMEDIES.— 

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

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

5 not satisfied with the determinations of the tribunal, 

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

7 a State court of competent jurisdiction. 

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

9 an action in a State court in accordance with para10 graph (1) shall forfeit any compensation award 

11 made under subsection (e). 

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

13 the expert panel and the administrative health care 

14 tribunal pursuant to subsections (d) and (e) with re15 spect to a State court proceeding under paragraph 

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

17 State court proceeding. 

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

19 care provider’ has the meaning given such term for pur20 poses of part A of title VII. 

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

22 are authorized to be appropriated for any fiscal year such 

23 sums as may be necessary for purposes of making grants 

24 to States under this section.’’. 


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1 SEC. 5. SENSE OF CONGRESS REGARDING HEALTH IN2 SURER LIABILITY. 

3 It is the sense of Congress that a health insurance 

4 issuer should be liable for damages for harm caused when 

5 it makes a decision as to what care is medically necessary 

6 and appropriate. 

Æ 


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