I

103D CONGRESS

1ST SESSION H. R. 1625

To improve access to fair compensation for those injured while receiving

medical care and to increase availability of health care services by reducing the costs of both medical malpractice liability premiums and defensive

medicine.

IN THE HOUSE OF REPRESENTATIVES

APRIL 1, 1993

Mrs. JOHNSON of Connecticut (for herself, Mr. ARCHER, and Mr. GINGRICH)

introduced the following bill; which was referred jointly to the Committees

on the Judiciary, Ways and Means, and Energy and Commerce

A BILL

To improve access to fair compensation for those injured

while receiving medical care and to increase availability

of health care services by reducing the costs of both

medical malpractice liability premiums and defensive

medicine.

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

3 That this Act may be cited as the ‘‘Medical Malpractice

4 Liability Reform Act of 1993’’.
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1 PART 1—GENERAL PROVISIONS

2 SEC. 101. FEDERAL REFORM OF MEDICAL MALPRACTICE

3 LIABILITY ACTIONS.

4 (a) CONGRESSIONAL FINDINGS.—

5 (1) EFFECT ON INTERSTATE COMMERCE.—

6 Congress finds that the health care and insurance

7 industries are industries affecting interstate com8 merce and the medical malpractice litigation systems

9 existing throughout the United States affect inter10 state commerce by contributing to the high cost of

11 health care and premiums for malpractice insurance

12 purchased by health care providers.

13 (2) EFFECT ON FEDERAL SPENDING.—Con14 gress finds that the medical malpractice litigation

15 systems existing throughout the United States have

16 a significant effect on the amount, distribution, and

17 use of Federal funds because of—

18 (A) the large number of individuals who

19 receive health care benefits under programs op20 erated or financed by the Federal Government;

21 (B) the large number of individuals who

22 benefit because of the exclusion from Federal

23 taxes of the amounts spent by their employers

24 to provide them with health insurance benefits;
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1 (C) the large number of health care provid2 ers and health care professionals who provide

3 items or services for which the Federal Govern4 ment makes payments; and

5 (D) the large number of such providers

6 and professionals who have received direct or

7 indirect financial assistance from the Federal

8 Government because of their status as such

9 professionals or providers.

10 (b) APPLICABILITY.—This subtitle shall apply with

11 respect to any medical malpractice liability claim and to

12 any medical malpractice liability action brought in any

13 State or Federal court, except that this subtitle shall not

14 apply to—

15 (1) a claim or action for damages arising from

16 a vaccine-related injury or death to the extent that

17 title XXI of the Public Health Service Act applies to

18 the action; or

19 (2) a claim or action in which the plaintiff’s

20 sole allegation is an allegation of an injury arising

21 from the use of a medical product.

22 (c) PREEMPTION OF STATE LAW.—Subject to section

23 121, this subtitle supersedes State law only to the extent

24 that State law differs from any provision of law estab25 lished by or under this subtitle. Any issue that is not gov-
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1 erned by any provision of law established by or under this

2 subtitle shall be governed by otherwise applicable State or

3 Federal law.

4 (d) FEDERAL COURT JURISDICTION NOT ESTAB5 LISHED ON FEDERAL QUESTION GROUNDS.—Nothing in

6 this subtitle shall be construed to establish any jurisdiction

7 in the district courts of the United States over medical

8 malpractice liability actions on the basis of sections 1331

9 or 1337 of title 28, United States Code.

10 SEC. 102. DEFINITIONS.

11 As used in this subtitle:

12 (1) ALTERNATIVE DISPUTE RESOLUTION SYS13 TEM; ADR.—The term ‘‘alternative dispute resolu14 tion system’’ or ‘‘ADR’’ means a system established

15 by a State that provides for the resolution of medical

16 malpractice liability claims in a manner other than

17 through medical malpractice liability actions.

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

19 any person who alleges a medical malpractice liabil20 ity claim, or, in the case of an individual who is de21 ceased, incompetent, or a minor, the person on

22 whose behalf such a claim is alleged.

23 (3) ECONOMIC DAMAGES.—The term ‘‘economic

24 damages’’ means damages paid to compensate an in25 dividual for losses for hospital and other medical ex-
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1 penses, lost wages, lost employment, and other pecu2 niary losses.

3 (4) HEALTH CARE PROFESSIONAL.—The term

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

5 provides health care services in a State and who is

6 required by State law or regulation to be licensed or

7 certified by the State to provide such services in the

8 State.

9 (5) HEALTH CARE PROVIDER.—The term

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

11 institution that is engaged in the delivery of health

12 care services in a State and that is required by State

13 law or regulation to be licensed or certified by the

14 State to engage in the delivery of such services in

15 the State.

16 (6) INJURY.—The term ‘‘injury’’ means any ill17 ness, disease, or other harm that is the subject of

18 a medical malpractice liability action or claim.

19 (7) MEDICAL MALPRACTICE LIABILITY AC20 TION.—The term ‘‘medical malpractice liability ac21 tion’’ means a civil action (other than an action in

22 which the plaintiff’s sole allegation is an allegation

23 of an intentional tort) brought in a State or Federal

24 court against a health care provider or health care

25 professional (regardless of the theory of liability on
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1 which the action is based) in which the plaintiff al2 leges a medical malpractice liability claim.

3 (8) MEDICAL MALPRACTICE LIABILITY

4 CLAIM.—The term ‘‘medical malpractice liability

5 claim’’ means a claim in which the claimant alleges

6 that injury was caused by the provision of (or the

7 failure to provide) health care services.

8 (9) MEDICAL PRODUCT.—The term ‘‘medical

9 product’’ means a device (as defined in section

10 201(h) of the Federal Food, Drug, and Cosmetic

11 Act) or a drug (as defined in section 201(g)(1) of

12 the Federal Food, Drug, and Cosmetic Act).

13 (10) NONECONOMIC DAMAGES.—The term

14 ‘‘noneconomic damages’’ means damages paid to

15 compensate an individual for losses for physical and

16 emotional pain, suffering, inconvenience, physical

17 impairment, mental anguish, disfigurement, loss of

18 enjoyment of life, loss of consortium, and other

19 nonpecuniary losses, but does not include punitive

20 damages.

21 (11) SECRETARY.—The term ‘‘Secretary’’

22 means the Secretary of Health and Human Services.

23 (12) STATE.—The term ‘‘State’’ means each of

24 the several States, the District of Columbia, the
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1 Commonwealth of Puerto Rico, the Virgin Islands,

2 Guam, and American Samoa.

3 SEC. 103. EFFECTIVE DATE.

4 (a) IN GENERAL.—Except as provided in subsection

5 (b) and sections 119, 142, and 143, this subtitle shall

6 apply with respect to claims accruing or actions brought

7 on or after the expiration of the 3-year period that begins

8 on the date of the enactment of this Act.

9 (b) EXCEPTION FOR STATES REQUESTING EARLIER

10 IMPLEMENTATION OF REFORMS.—

11 (1) APPLICATION.—A State may submit an ap12 plication to the Secretary requesting the early imple13 mentation of this subtitle with respect to claims or

14 actions brought in the State.

15 (2) DECISION BY SECRETARY.—The Secretary

16 shall issue a response to a State’s application under

17 paragraph (1) not later than 90 days after receiving

18 the application. If the Secretary determines that the

19 State meets the requirements of this subtitle at the

20 time of submitting its application, the Secretary

21 shall approve the State’s application, and this sub22 title shall apply with respect to actions brought in

23 the State on or after the expiration of the 90-day

24 period that begins on the date the Secretary issues

25 the response. If the Secretary denies the State’s ap-
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1 plication, the Secretary shall provide the State with

2 a written explanation of the grounds for the deci3 sion.

4 PART 2—UNIFORM STANDARDS FOR MEDICAL

5 MALPRACTICE LIABILITY ACTIONS

6 SEC. 111. STATUTE OF LIMITATIONS.

7 (a) IN GENERAL.—No medical malpractice liability

8 claim may be brought after the expiration of the 2-year

9 period that begins on the date the alleged injury that is

10 the subject of the action should reasonably have been dis11 covered, but in no event after the expiration of the 4-year

12 period that begins on the date the alleged injury occurred.

13 (b) EXCEPTION FOR MINORS.—In the case of an al14 leged injury suffered by a minor who has not attained 6

15 years of age, no medical malpractice liability claim may

16 be brought after the expiration of the 2-year period that

17 begins on the date the alleged injury that is the subject

18 of the action should reasonably have been discovered, but

19 in no event after the date on which the minor attains 10

20 years of age.

21 SEC. 112. REQUIREMENT FOR INITIAL RESOLUTION OF AC22 TION THROUGH ALTERNATIVE DISPUTE RES23 OLUTION.

24 (a) IN GENERAL.—No medical malpractice liability

25 action may be brought in any State court during a cal-
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1 endar year unless the medical malpractice liability claim

2 that is the subject of the action has been initially resolved

3 under an alternative dispute resolution system certified for

4 the year by the Secretary under section 132(a), or, in the

5 case of a State in which such a system is not in effect

6 for the year, under the alternative Federal system estab7 lished under section 132(b).

8 (b) INITIAL RESOLUTION OF CLAIMS UNDER

9 ADR.—For purposes of subsection (a), an action is ‘‘ini10 tially resolved’’ under an alternative dispute resolution

11 system if—

12 (1) the ADR reaches a decision on whether the

13 defendant is liable to the plaintiff for damages; and

14 (2) if the ADR determines that the defendant

15 is liable, the ADR reaches a decision on the amount

16 of damages assessed against the defendant.

17 (c) PROCEDURES FOR FILING ACTIONS.—

18 (1) NOTICE OF INTENT TO CONTEST DECI19 SION.—Not later than 60 days after a decision is is20 sued with respect to a medical malpractice liability

21 claim under an alternative dispute resolution system,

22 each party affected by the decision shall submit a

23 sealed statement to a court of competent jurisdiction

24 indicating whether or not the party intends to con25 test the decision.
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1 (2) DEADLINE FOR FILING ACTION.—No medi2 cal malpractice liability action may be brought un3 less the action is filed in a court of competent juris4 diction not later than 90 days after the decision re5 solving the medical malpractice liability claim that is

6 the subject of the action is issued under the applica7 ble alternative dispute resolution system.

8 (3) COURT OF COMPETENT JURISDICTION.—

9 For purposes of this subsection, the term ‘‘court of

10 competent jurisdiction’’ means—

11 (A) with respect to actions filed in a State

12 court, the appropriate State trial court; and

13 (B) with respect to actions filed in a Fed14 eral court, the appropriate United States dis15 trict court.

16 (d) EFFECT OF ADR DECISION ON BURDEN OF

17 PROOF IN SUBSEQUENT ACTION.—In any medical mal18 practice liability action, the trier of fact shall uphold the

19 decision made under the previous alternative dispute reso20 lution system with respect to the claim that is the subject

21 of the action unless the party contesting the decision

22 proves by a preponderance of the evidence that the deci23 sion was incorrect.

24 (e) LEGAL EFFECT OF UNCONTESTED ADR DECI25 SION.—The decision reached under an alternative dispute
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1 resolution system shall, for purposes of enforcement by a

2 court of competent jurisdiction, have the same status in

3 the court as the verdict of a medical malpractice liability

4 action adjudicated in a State or Federal trial court. The

5 previous sentence shall not apply to a decision that is con6 tested by a party affected by the decision pursuant to sub7 section (c)(1).

8 SEC. 113. ESTABLISHMENT OF PROCESS FOR RESOLUTION

9 OF CLAIMS AGAINST UNITED STATES.

10 The Attorney General shall establish an alternative

11 dispute resolution process for the resolution of tort claims

12 consisting of medical malpractice liability claims brought

13 against the United States under the Federal Tort Claims

14 Act. Under such process, the resolution of the claim shall

15 occur after the completion of the administrative claim

16 process applicable to the claim under section 2675 of title

17 28, United States Code.

18 SEC. 114. MANDATORY PRE-TRIAL SETTLEMENT CON19 FERENCE.

20 (a) IN GENERAL.—Before the beginning of the trial

21 phase of any medical malpractice liability action, the par22 ties shall attend a conference called by the court for pur23 poses of determining whether grounds exist upon which

24 the parties may negotiate a settlement for the action.
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1 (b) REQUIRING PARTIES TO SUBMIT SETTLEMENT

2 OFFERS.—At the conference called pursuant to subsection

3 (a), each party to a medical malpractice liability action

4 shall present an offer of settlement for the action.

5 SEC. 115. CALCULATION AND PAYMENT OF DAMAGES.

6 (a) LIMITATION ON NONECONOMIC DAMAGES.—The

7 total amount of noneconomic damages that may be award8 ed to a plaintiff and the members of the plaintiff’s family

9 for losses resulting from the injury which is the subject

10 of a medical malpractice liability action may not exceed

11 $250,000, regardless of the number of parties against

12 whom the action is brought or the number of actions

13 brought with respect to the injury.

14 (b) TREATMENT OF PUNITIVE DAMAGES.—

15 (1) LIMITATION ON AMOUNT.—The total

16 amount of punitive damages that may be imposed

17 under a medical malpractice liability action may not

18 exceed twice the total of the damages awarded to the

19 plaintiff and the members of the plaintiff’s family.

20 (2) PAYMENTS TO STATE FOR MEDICAL QUAL21 ITY ASSURANCE ACTIVITIES.—

22 (A) IN GENERAL.—Any punitive damages

23 imposed under a medical malpractice liability

24 action shall be paid to the State in which the

25 action is brought.
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1 (B) ACTIVITIES DESCRIBED.—A State

2 shall use amount paid pursuant to subpara3 graph (A) to carry out activities to assure the

4 safety and quality of health care services pro5 vided in the State, including (but not limited

6 to)—

7 (i) licensing or certifying health care

8 professionals and health care providers in

9 the State;

10 (ii) operating alternative dispute reso11 lution systems;

12 (iii) carrying out public education pro13 grams relating to medical malpractice and

14 the availability of alternative dispute reso15 lution systems in the State; and

16 (iv) carrying out programs to reduce

17 malpractice-related costs for retired provid18 ers or other providers volunteering to pro19 vide services in medically underserved

20 areas.

21 (C) MAINTENANCE OF EFFORT.—A State

22 shall use any amounts paid pursuant to sub23 paragraph (A) to supplement and not to replace

24 amounts spent by the State for the activities

25 described in subparagraph (B).
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1 (c) PERIODIC PAYMENTS FOR FUTURE LOSSES.—If

2 more than $100,000 in damages for expenses to be in3 curred in the future is awarded to the plaintiff in a medi4 cal malpractice liability action, the defendant shall provide

5 for payment for such damages on a periodic basis deter6 mined appropriate by the court (based upon projections

7 of when such expenses are likely to be incurred), unless

8 the court determines that it is not in the plaintiff’s best

9 interest to receive payments for such damages on such a

10 periodic basis.

11 (d) MANDATORY OFFSETS FOR DAMAGES PAID BY

12 A COLLATERAL SOURCE.—

13 (1) IN GENERAL.—The total amount of dam14 ages received by a plaintiff in a medical malpractice

15 liability action shall be reduced (in accordance with

16 paragraph (2)) by any other payment that has been

17 or will be made to the individual to compensate the

18 plaintiff for the injury that was the subject of the

19 action, including payment under—

20 (A) Federal or State disability or sickness

21 programs;

22 (B) Federal, State, or private health insur23 ance programs;

24 (C) private disability insurance programs;
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1 (D) employer wage continuation programs;

2 and

3 (E) any other source of payment intended

4 to compensate the plaintiff for such injury.

5 (2) AMOUNT OF REDUCTION.—The amount by

6 which an award of damages to a plaintiff shall be re7 duced under paragraph (1) shall be—

8 (A) the total amount of any payments

9 (other than such award) that have been made

10 or that will be made to the plaintiff to com11 pensate the plaintiff for the injury that was the

12 subject of the action; minus

13 (B) the amount paid by the plaintiff (or by

14 the spouse, parent, or legal guardian of the

15 plaintiff) to secure the payments described in

16 subparagraph (A).

17 SEC. 116. TREATMENT OF ATTORNEY’S FEES AND OTHER

18 COSTS.

19 (a) LIMITATION ON ATTORNEY’S FEES.—If the

20 plaintiff in a medical malpractice liability action has en21 tered into an agreement with the plaintiff’s attorney to

22 pay the attorney’s fees on a contingency basis, the attor23 ney’s fees for the action may not exceed—

24 (1) 25 percent of the first $150,000 of any

25 award or settlement paid to the plaintiff; or
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1 (2) 15 percent of any additional amounts paid

2 to the plaintiff.

3 (b) REQUIRING PARTY CONTESTING ADR RULING

4 TO PAY ATTORNEY’S FEES AND OTHER COSTS.—

5 (1) IN GENERAL.—The court in a medical mal6 practice liability action shall require the party that

7 (pursuant to section 112(c)(1)) contested the ruling

8 of the alternative dispute resolution system with re9 spect to the medical malpractice liability claim that

10 is the subject of the action to pay to the opposing

11 party the costs incurred by the opposing party under

12 the action, including attorney’s fees, fees paid to ex13 pert witnesses, and other litigation expenses (but not

14 including court costs, filing fees, or other expenses

15 paid directly by the party to the court, or any fees

16 or costs associated with the resolution of the claim

17 under the alternative dispute resolution system), but

18 only if—

19 (A) in the case of an action in which the

20 party that contested the ruling is the plaintiff,

21 the amount of damages awarded to the party

22 under the action does not exceed the amount of

23 damages awarded to the party under the ADR

24 system by at least 10 percent; and
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1 (B) in the case of an action in which the

2 party that contested the ruling is the defendant,

3 the amount of damages assessed against the

4 party under the action is not at least 10 per5 cent less than the amount of damages assessed

6 under the ADR system.

7 (2) EXCEPTIONS.—Paragraph (1) shall not

8 apply if—

9 (A) the party contesting the ruling made

10 under the previous alternative dispute resolu11 tion system shows that—

12 (i) the ruling was procured by corrup13 tion, fraud, or undue means,

14 (ii) there was partiality or corruption

15 under the system,

16 (iii) there was other misconduct under

17 the system that materially prejudiced the

18 party’s rights, or

19 (iv) the ruling was based on an error

20 of law;

21 (B) the party contesting the ruling made

22 under the previous alternative dispute resolu23 tion system presents new evidence before the

24 trier of fact that was not available for presen25 tation under the ADR system;
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1 (C) the medical malpractice liability action

2 raised a novel issue of law; or

3 (D) the court finds that the application of

4 such paragraph to a party would constitute an

5 undue hardship, and issues an order waiving or

6 modifying the application of such paragraph

7 that specifies the grounds for the court’s deci8 sion.

9 SEC. 117. JOINT AND SEVERAL LIABILITY.

10 The liability of each defendant in a medical mal11 practice liability action shall be several only and shall not

12 be joint, and each defendant shall be liable only for the

13 amount of damages allocated to the defendant in direct

14 proportion to the defendant’s percentage of responsibility

15 (as determined by the trier of fact).

16 SEC. 118. UNIFORM STANDARD FOR DETERMINING NEG17 LIGENCE.

18 Except as provided in subsection (b), a defendant in

19 a medical malpractice liability action may not be found

20 to have acted negligently unless the defendant’s conduct

21 at the time of providing the health care services that are

22 the subject of the action was not reasonable.
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1 SEC. 119. APPLICATION OF MEDICAL PRACTICE GUIDE2 LINES IN MALPRACTICE LIABILITY ACTIONS.

3 (a) USE OF GUIDELINES AS AFFIRMATIVE DE4 FENSE.—In any medical malpractice liability action, it

5 shall be a complete defense to any allegation that the de6 fendant was negligent that, in the provision of (or the fail7 ure to provide) the services that are the subject of the

8 action, the defendant followed the appropriate practice

9 guideline.

10 (b) RESTRICTION ON GUIDELINES CONSIDERED

11 APPROPRIATE.—

12 (1) GUIDELINES SANCTIONED BY SEC13 RETARY.—For purposes of subsection (a), a practice

14 guideline may not be considered appropriate with re15 spect to actions brought during a year unless the

16 Secretary has sanctioned the use of the guideline for

17 purposes of an affirmative defense to medical mal18 practice liability actions brought during the year in

19 accordance with paragraph (2) or (3).

20 (2) PROCESS FOR SANCTIONING GUIDELINES.—

21 Not less frequently than October 1 of each year (be22 ginning with 1994), the Secretary shall review the

23 practice guidelines and standards developed by the

24 Administrator for Health Care Policy and Research

25 pursuant to section 1142 of the Social Security Act,

26 and shall sanction those guidelines which the Sec-
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1 retary considers appropriate for purposes of an

2 affirmative defense to medical malpractice liability

3 actions brought during the next calendar year as ap4 propriate practice guidelines for purposes of sub5 section (a).

6 (3) USE OF STATE GUIDELINES.—Upon the ap7 plication of a State, the Secretary may sanction

8 practice guidelines selected by the State for purposes

9 of an affirmative defense to medical malpractice li10 ability actions brought in the State as appropriate

11 practice guidelines for purposes of subsection (a) if

12 the guidelines meet such requirements as the Sec13 retary may impose.

14 (c) PROHIBITING APPLICATION OF FAILURE TO FOL15 LOW GUIDELINES AS PRIMA FACIE EVIDENCE OF NEG16 LIGENCE.—No plaintiff in a medical malpractice liability

17 action may be deemed to have presented prima facie evi18 dence that a defendant was negligent solely by showing

19 that the defendant failed to follow the appropriate practice

20 guideline.

21 SEC. 120. SPECIAL PROVISION FOR CERTAIN OBSTETRIC

22 SERVICES.

23 (a) IMPOSITION OF HIGHER STANDARD OF PROOF.—

24 (1) IN GENERAL.—In the case of a medical

25 malpractice liability action relating to services pro-
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1 vided during labor or the delivery of a baby, if the

2 defendant health care professional did not previously

3 treat the plaintiff for the pregnancy, the trier of fact

4 may not find that the defendant committed mal5 practice and may not assess damages against the de6 fendant unless the malpractice is proven by clear

7 and convincing evidence.

8 (2) APPLICABILITY TO GROUP PRACTICES OR

9 AGREEMENTS AMONG PROVIDERS.—For purposes of

10 paragraph (1), a health care professional shall be

11 considered to have previously treated an individual

12 for a pregnancy if the professional is a member of

13 a group practice whose members previously treated

14 the individual for the pregnancy or is providing serv15 ices to the individual during labor or the delivery of

16 a baby pursuant to an agreement with another pro17 fessional.

18 (b) CLEAR AND CONVINCING EVIDENCE DEFINED.—

19 In subsection (a), the term ‘‘clear and convincing evi20 dence’’ is that measure or degree of proof that will

21 produce in the mind of the trier of fact a firm belief or

22 conviction as to the truth of the allegations sought to be

23 established, except that such measure or degree of proof

24 is more than that required under preponderance of the evi-
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1 dence, but less than that required for proof beyond a rea2 sonable doubt.

3 (c) EFFECTIVE DATE.—This section shall apply to

4 claims accruing or actions brought on or after the expira5 tion of the 2-year period that begins on the date of the

6 enactment of this Act.

7 SEC. 121. PREEMPTION.

8 (a) IN GENERAL.—This part supersedes any State

9 law only to the extent that State law—

10 (1) permits the recovery of a greater amount of

11 damages by a plaintiff;

12 (2) permits the collection of a greater amount

13 of attorneys’ fees by a plaintiff’s attorney;

14 (3) establishes a longer period during which a

15 medical malpractice liability claim may be initiated;

16 or

17 (4) establishes a stricter standard for determin18 ing whether a defendant was negligent or for deter19 mining the liability of defendants described in sec20 tion 120(a) in actions described in such section.

21 (b) EFFECT ON SOVEREIGN IMMUNITY AND CHOICE

22 OF LAW OR VENUE.—Nothing in subsection (a) shall be

23 construed to—
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1 (1) waive or affect any defense of sovereign im2 munity asserted by any State under any provision of

3 law;

4 (2) waive or affect any defense of sovereign im5 munity asserted by the United States;

6 (3) affect the applicability of any provision of

7 the Foreign Sovereign Immunities Act of 1976;

8 (4) preempt State choice-of-law rules with re9 spect to claims brought by a foreign nation or a citi10 zen of a foreign nation; or

11 (5) affect the right of any court to transfer

12 venue or to apply the law of a foreign nation or to

13 dismiss a claim of a foreign nation or of a citizen

14 of a foreign nation on the ground of inconvenient

15 forum.

16 PART 3—REQUIREMENTS FOR ALTERNATIVE DISPUTE

17 RESOLUTION SYSTEMS (ADR)

18 SEC. 131. BASIC REQUIREMENTS.

19 (a) IN GENERAL.—A State’s alternative dispute reso20 lution system meets the requirements of this section if the

21 system—

22 (1) applies to all medical malpractice liability

23 claims under the jurisdiction of the State courts;

24 (2) requires that a written opinion resolving the

25 dispute be issued not later than 6 months after the
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1 date by which each party against whom the claim is

2 filed has received notice of the claim (other than in

3 exceptional cases for which a longer period is re4 quired for the issuance of such an opinion), and that

5 the opinion contain—

6 (A) findings of fact relating to the dispute,

7 and

8 (B) a description of the costs incurred in

9 resolving the dispute under the system (includ10 ing any fees paid to the individuals hearing and

11 resolving the claim), together with an appro12 priate assessment of the costs against any of

13 the parties;

14 (3) requires individuals who hear and resolve

15 claims under the system to meet such qualifications

16 as the State may require (in accordance with regula17 tions of the Secretary);

18 (4) is approved by the State or by local govern19 ments in the State;

20 (5) with respect to a State system that consists

21 of multiple dispute resolution procedures—

22 (A) permits the parties to a dispute to se23 lect the procedure to be used for the resolution

24 of the dispute under the system, and
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1 (B) if the parties do not agree on the pro2 cedure to be used for the resolution of the dis3 pute, assigns a particular procedure to the par4 ties;

5 (6) provides for the transmittal to the State

6 agency responsible for monitoring or disciplining

7 health care professionals and health care providers

8 of any findings made under the system that such a

9 professional or provider committed malpractice, un10 less, during the 90-day period beginning on the date

11 the system resolves the claim against the profes12 sional or provider, the professional or provider

13 brings a medical malpractice liability action contest14 ing the decision made under the system; and

15 (7) provides for the regular transmittal to the

16 Administrator for Health Care Policy and Research

17 of information on disputes resolved under the sys18 tem, in a manner that assures that the identity of

19 the parties to a dispute shall not be revealed.

20 (b) APPLICATION OF MALPRACTICE LIABILITY

21 STANDARDS TO ALTERNATIVE DISPUTE RESOLUTION.—

22 The provisions of part 2 shall apply with respect to claims

23 brought under a State alternative dispute resolution sys24 tem or the alternative Federal system in the same manner
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1 as such provisions apply with respect to medical mal2 practice liability actions brought in the State.

3 SEC. 132. CERTIFICATION OF STATE SYSTEMS; APPLICABIL4 ITY OF ALTERNATIVE FEDERAL SYSTEM.

5 (a) CERTIFICATION.—

6 (1) IN GENERAL.—Not later than October 1 of

7 each year (beginning with 1994), the Secretary, in

8 consultation with the Attorney General, shall deter9 mine whether a State’s alternative dispute resolution

10 system meets the requirements of this part for the

11 following calendar year.

12 (2) BASIS FOR CERTIFICATION.—The Secretary

13 shall certify a State’s alternative dispute resolution

14 system under this subsection for a calendar year if

15 the Secretary determines under paragraph (1) that

16 the system meets the requirements of section 131.

17 (b) APPLICABILITY OF ALTERNATIVE FEDERAL SYS18 TEM.—

19 (1) ESTABLISHMENT AND APPLICABILITY.—

20 Not later than October 1, 1994, the Secretary, in

21 consultation with the Attorney General, shall estab22 lish by rule an alternative Federal ADR system for

23 the resolution of medical malpractice liability claims

24 during a calendar year in States that do not have
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1 in effect an alternative dispute resolution system

2 certified under subsection (a) for the year.

3 (2) REQUIREMENTS FOR SYSTEM.—Under the

4 alternative Federal ADR system established under

5 paragraph (1)—

6 (A) paragraphs (1), (2), (6), and (7) of

7 section 131(a) shall apply to claims brought

8 under the system;

9 (B) claims brought under the system shall

10 be heard and resolved by arbitrators appointed

11 by the Secretary in consultation with the Attor12 ney General; and

13 (C) with respect to a State in which the

14 system is in effect, the Secretary may (at the

15 State’s request) modify the system to take into

16 account the existence of dispute resolution pro17 cedures in the State that affect the resolution

18 of medical malpractice liability claims.

19 SEC. 133. REPORTS ON IMPLEMENTATION AND EFFECTIVE20 NESS OF ALTERNATIVE DISPUTE RESOLU21 TION SYSTEMS.

22 (a) IN GENERAL.—Not later than 5 years after the

23 date of the enactment of this Act, the Secretary shall pre24 pare and submit to Congress a report describing and eval25 uating State alternative dispute resolution systems oper-
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1 ated pursuant to this part and the alternative Federal sys2 tem established under section 132(b).

3 (b) CONTENTS OF REPORT.—The Secretary shall in4 clude in the report prepared and submitted under sub5 section (a)—

6 (1) information on—

7 (A) the effect of such systems on the cost

8 of health care within each State,

9 (B) the impact of such systems on the ac10 cess of individuals to health care within the

11 State, and

12 (C) the effect of such systems on the qual13 ity of health care provided within the State; and

14 (2) to the extent that such report does not pro15 vide information on no-fault systems operated by

16 States as alternative dispute resolution systems pur17 suant to this part, an analysis of the feasibility and

18 desirability of establishing a system under which

19 medical malpractice liability claims shall be resolved

20 on a no-fault basis.

21 PART 4—OTHER REQUIREMENTS AND PROGRAMS

22 SEC. 141. FACILITATING DEVELOPMENT AND USE OF

23 MEDICAL PRACTICE GUIDELINES.

24 (a) INCREASE IN AUTHORIZATION OF APPROPRIA25 TIONS.—Section 1142(i)(1) of the Social Security Act (42
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1 U.S.C. 1320b–12(i)(1)) is amended by striking ‘‘and’’ at

2 the end of subparagraph (D) and by striking subpara3 graph (E) and inserting the following:

4 ‘‘(E) $195,000,000 for fiscal year 1994 (of

5 which $10,000,000 shall be used for sanction6 ing practice guidelines for purposes of an af7 firmative defense in medical malpractice liabil8 ity actions); and

9 ‘‘(F) $20,000,000 for each of fiscal year

10 1995 and 1996, to be used for sanctioning

11 practice guidelines for purposes of an affirma12 tive defense in medical malpractice liability ac13 tions.’’.

14 (b) CONSIDERATION OF MALPRACTICE LIABILITY

15 DATA IN DEVELOPING AND UPDATING GUIDELINES.—

16 Section 1142(c)(5) of such Act (42 U.S.C. 1320b–

17 12(c)(5)) is amended by striking ‘‘claims data’’ and all

18 that follows through ‘‘patients’’ and inserting the follow19 ing: ‘‘claims data, data on clinical and functional status

20 of patients, and data on medical malpractice liability ac21 tions’’.

22 (c) DEVELOPMENT OF REPORTING FORMS FOR

23 STATE ADR SYSTEMS.—The Secretary, in consulation

24 with the Administrator for Health Care Policy and Re25 search, shall develop a standard reporting form to be used
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1 by State alternative dispute resolution systems in trans2 mitting information to the Administrator pursuant to sec3 tion 131(a)(6) on disputes resolved under such systems.

4 (d) STUDY OF EFFECT OF GUIDELINES ON MEDICAL

5 MALPRACTICE.—

6 (1) STUDY.—The Secretary shall conduct a

7 study of the effect of the use of the medical practice

8 guidelines developed by the Administrator for Health

9 Care Policy and Research on the incidence of and

10 the costs associated with medical malpractice.

11 (2) REPORTS.—(A) Not later than 1 year after

12 the date of the enactment of this Act, the Secretary

13 shall submit an interim report to Congress describ14 ing the availability and use of medical practice

15 guidelines and the aggregate costs associated with

16 medical malpractice.

17 (B) Not later than 5 years after the date of the

18 enactment of this Act, the Secretary shall submit a

19 report to Congress on the study conducted under

20 paragraph (1), together with recommendations re21 garding expanding the use of medical practice guide22 lines for determining the liability of health care pro23 fessionals and health care providers for medical mal24 practice.
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1 SEC. 142. PERMITTING STATE PROFESSIONAL SOCIETIES

2 TO PARTICIPATE IN DISCIPLINARY ACTIVI3 TIES.

4 (a) ROLE OF PROFESSIONAL SOCIETIES.—Notwith5 standing any other provision of State or Federal law, a

6 State agency responsible for the conduct of disciplinary

7 actions for a type of health care practitioner may enter

8 into agreements with State or county professional societies

9 of such type of health care practitioner to permit such so10 cieties to participate in the licensing of such health care

11 practitioner, and to review any health care malpractice ac12 tion, health care malpractice claim or allegation, or other

13 information concerning the practice patterns of any such

14 health care practitioner. Any such agreement shall comply

15 with subsection (b).

16 (b) REQUIREMENTS OF AGREEMENTS.—Any agree17 ment entered into under subsection (a) for licensing activi18 ties or the review of any health care malpractice action,

19 health care malpractice claim or allegation, or other infor20 mation concerning the practice patterns of a health care

21 practitioner shall provide that—

22 (1) the health care professional society conducts

23 such activities or review as expeditiously as possible;

24 (2) after the completion of such review, such so25 ciety shall report its findings to the State agency

26 with which it entered into such agreement;
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1 (3) the conduct of such activities or review and

2 the reporting of such findings be conducted in a

3 manner which assures the preservation of confiden4 tiality of health care information and of the review

5 process; and

6 (4) no individual affiliated with such society is

7 liable for any damages or injury directly caused by

8 the individual’s actions in conducting such activities

9 or review.

10 (c) AGREEMENTS NOT MANDATORY.—Nothing in

11 this section may be construed to require a State to enter

12 into agreements with societies described in subsection (a)

13 to conduct the activities described in such subsection.

14 (d) EFFECTIVE DATE.—This section shall take effect

15 2 years after the date of the enactment of this Act.

16 SEC. 143. REQUIREMENTS FOR RISK MANAGEMENT PRO17 GRAMS.

18 (a) REQUIREMENTS FOR PROVIDERS.—Each State

19 shall require each health care professional and health care

20 provider providing services in the State to participate in

21 a risk management program to prevent and provide early

22 warning of practices which may result in injuries to pa23 tients or which otherwise may endanger patient safety.

24 (b) REQUIREMENTS FOR INSURERS.—Each State

25 shall require each entity which provides health care profes-
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1 sional or provider liability insurance to health care profes2 sionals and health care providers in the State to—

3 (1) establish risk management programs based

4 on data available to such entity or sanction pro5 grams of risk management for health care profes6 sionals and health care providers provided by other

7 entities; and

8 (2) require each such professional or provider,

9 as a condition of maintaining insurance, to partici10 pate in one program described in paragraph (1) at

11 least once in each 3-year period.

12 (c) EFFECTIVE DATE.—This section shall take effect

13 2 years after the date of the enactment of this Act.

14 SEC. 144. GRANTS FOR MEDICAL SAFETY PROMOTION.

15 (a) RESEARCH ON MEDICAL INJURY PREVENTION

16 AND COMPENSATION.—

17 (1) IN GENERAL.—The Secretary shall make

18 grants for the conduct of basic research in the pre19 vention of and compensation for injuries resulting

20 from health care professional or health care provider

21 malpractice, and research of the outcomes of health

22 care procedures.

23 (2) PREFERENCE FOR RESEARCH ON CERTAIN

24 ACTIVITIES.—In making grants under paragraph

25 (1), the Secretary shall give preference to applica-
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1 tions for grants to conduct research on the behavior

2 of health care providers and health care profes3 sionals in carrying out their professional duties and

4 of other participants in systems for compensating in5 dividuals injured by medical malpractice, the effects

6 of financial and other incentives on such behavior,

7 the determinants of compensation system outcomes,

8 and the costs and benefits of alternative compensa9 tion policy options.

10 (3) APPLICATION.—The Secretary may not

11 make a grant under paragraph (1) unless an appli12 cant submits an application to the Secretary at such

13 time, in such form, in such manner, and containing

14 such information as the Secretary may require.

15 (b) GRANTS FOR LICENSING AND DISCIPLINARY AC16 TIVITIES.—

17 (1) IN GENERAL.—The Secretary shall make

18 grants to States to assist States in improving the

19 States’ ability to license and discipline health care

20 professionals.

21 (2) USES FOR GRANTS.—A State may use a

22 grant awarded under subsection (a) to develop and

23 implement improved mechanisms for monitoring the

24 practices of health care professionals or for conduct25 ing disciplinary activities.
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1 (3) TECHNICAL ASSISTANCE.—The Secretary

2 shall provide technical assistance to States receiving

3 grants under paragraph (1) to assist them in evalu4 ating their medical practice acts and procedures and

5 to encourage the use of efficient and effective early

6 warning systems and other mechanisms for detecting

7 practices which endanger patient safety and for dis8 ciplining health care professionals.

9 (4) APPLICATIONS.—The Secretary may not

10 make a grant under paragraph (1) unless the appli11 cant submits an application to the Secretary at such

12 time, in such form, in such manner, and containing

13 such information as the Secretary shall require.

14 (c) GRANTS FOR PUBLIC EDUCATION PROGRAMS.—

15 (1) IN GENERAL.—The Secretary shall make

16 grants to States and to local governments, private

17 nonprofit organizations, and health professional

18 schools (as defined in paragraph (3)) for—

19 (A) educating the general public about the

20 appropriate use of health care and realistic ex21 pectations of medical intervention;

22 (B) educating the public about the re23 sources and role of health care professional li24 censing and disciplinary boards in investigating
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1 claims of incompetence or health care mal2 practice; and

3 (C) developing programs of faculty train4 ing and curricula for educating health care pro5 fessionals in quality assurance, risk manage6 ment, and medical injury prevention.

7 (2) APPLICATIONS.—The Secretary may not

8 make a grant under paragraph (1) unless the appli9 cant submits an application to the Secretary at such

10 time, in such form, in such manner, and containing

11 such information as the Secretary shall require.

12 (3) HEALTH PROFESSIONAL SCHOOL DE13 FINED.—In paragraph (1), the term ‘‘health profes14 sional school’’ means a school of nursing (as defined

15 in section 853(2) of the Public Health Service Act)

16 or an institution described in section 701(4) of such

17 Act.

18 (d) AUTHORIZATION OF APPROPRIATIONS.—There

19 are authorized to be appropriated not more than

20 $15,000,000 for each of the first 5 fiscal years beginning

21 on or after the date of the enactment of this Act for grants

22 under this section.
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1 SEC. 145. STUDY OF BARRIERS TO VOLUNTARY SERVICE BY

2 PHYSICIANS.

3 (a) STUDY.—The Secretary shall conduct a study to

4 determine the factors preventing or discouraging physi5 cians (whether practicing or retired) from volunteering to

6 provide health care services in medically underserved

7 areas.

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

9 date of the enactment of this Act, the Secretary shall sub10 mit an interim report to Congress on the study conducted

11 under subsection (a), together with the Secretary’s rec12 ommendations for actions to increase the number of physi13 cians volunteering to proivde health care services in medi14 cally underserved areas.

15 (2) Not later than 5 years after the date of the enact16 ment of this Act, the Secretary shall submit a final report

17 to Congress on the study conducted under subsection (a)

18 (taking into account the effects of this subtitle on the inci19 dence and costs of medical malpractice), together with the

20 Secretary’s recommendations for actions to increase the

21 number of physicians volunteering to provide health care

22 services in medically underserved areas.

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HR 1625 IH——2