(2) NO PRESUMPTION OF NEGLIGENCE.—There 
shall be no presumption of negligence if a health 
care provider provides treatment in a manner incon-
sistent 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-har-
bors 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 eval-
uation of administrative health care tribunals that comply 
with this section, for the resolution of disputes concerning 
injuries allegedly caused by health care providers. 
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00005
Fmt 6652
Sfmt 6201
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS
‘‘(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 tri-
bunal operated under such grant from obtaining legal rep-
resentation 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 ap-
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00006
Fmt 6652
Sfmt 6201
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS
pointed by the head of the State agency respon-
sible 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 physi-
cians 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 
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00007
Fmt 6652
Sfmt 6201
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS
‘‘(II) not otherwise have a con-
flict of interest with such a party. 
‘‘(ii) EXCEPTION.—Nothing in clause 
(i) shall be construed to prohibit an indi-
vidual who has staff privileges at an insti-
tution 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 PROFES-
SIONAL IN SAME FIELD.— 
‘‘(i) IN GENERAL.—In a dispute be-
fore an expert panel that involves treat-
ment, or the provision of items or serv-
ices— 
‘‘(I) by a physician, the medical 
experts on the expert panel shall be 
practicing physicians (allopathic or os-
teopathic) of the same or similar spe-
cialty as a physician who typically 
treats the condition, makes the diag-
nosis, or provides the type of treat-
ment under review; or 
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00008
Fmt 6652
Sfmt 6201
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS
‘‘(II) by a health care profes-
sional 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 phy-
sician 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 
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00009
Fmt 6652
Sfmt 6201
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS
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 deter-
mination 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 li-
ability 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 de-
cides 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 com-
pensation involved by an administrative health care 
tribunal established by the State involved. 
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00010
Fmt 6652
Sfmt 6201
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS
‘‘(2) REQUIREMENTS.—In establishing an ad-
ministrative health care tribunal under this section, 
a State shall— 
‘‘(A) ensure that such tribunals are pre-
sided over by special judges with health care ex-
pertise; 
‘‘(B) provide authority to such judges to 
make binding rulings, rendered in written deci-
sions, on standards of care, causation, com-
pensation, 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, 
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00011
Fmt 6652
Sfmt 6201
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS
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 para-
graph (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 re-
spect 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, reg-
istered, or certified to provide health care services, and 
being either so licensed, registered, or certified, or exempt-
ed 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: 
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00012
Fmt 6652
Sfmt 6201
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS
(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 resolu-
tion 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, sup-
plier, 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 num-
ber of claims or causes of action, in which the claim-
ant 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 ‘‘non-
economic damages’’ means damages for losses for 
physical and emotional pain, suffering, inconven-
ience, physical impairment, mental anguish, dis-
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00013
Fmt 6652
Sfmt 6201
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS
figurement, loss of enjoyment of life, loss of society 
and companionship, loss of consortium, hedonic 
damages, injury to reputation, and any other non-
pecuniary losses. 
(3) PUNITIVE DAMAGES.—The term ‘‘punitive 
damages’’ means damages awarded, for the purpose 
of punishment or deterrence, and not solely for com-
pensatory purposes, against a health care provider. 
Punitive damages are neither economic nor non-
economic damages. 
(4) MEDICAL TREATMENT.—The term ‘‘medical 
treatment’’ means the provision of any goods or 
services by a health care provider or by any indi-
vidual working under the supervision of a health 
care provider, that relates to the diagnosis, preven-
tion, or treatment of any human disease or impair-
ment, 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, reg-
istered, or certified, or exempted from such require-
ment by other statute or regulation. 
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00014
Fmt 6652
Sfmt 6201
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS
(6) FEDERAL TAX BENEFIT.—A claimant shall 
be treated as receiving a Federal tax benefit with re-
spect to payment for items or services if— 
(A) such payment is compensation by in-
surance— 
(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 pur-
poses, 
(B) a deduction was allowed with respect 
to such payment for Federal income tax pur-
poses, or 
(C) such payment was from an Archer 
MSA (as defined in section 220(d) of the Inter-
nal Revenue Code of 1986), a health savings 
account (as defined in section 223(d) of such 
Code), a flexible spending arrangement (as de-
fined in section 106(c)(2) of such Code), or a 
health reimbursement arrangement which is 
treated as employer-provided coverage under an 
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00015
Fmt 6652
Sfmt 6201
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS
accident or health plan for purposes of section 
106 of such Code. 
Æ 
VerDate Mar 15 2010 
23:23 Jun 30, 2011
Jkt 099200
PO 00000
Frm 00016
Fmt 6652
Sfmt 6301
E:\BILLS\H2363.IH
H2363
ebenthall on DSK29S0YB1PROD with BILLS