Medical Malpractice Insurance Corporation Act - Authorizes the establishment of corporations to provide medical malpractice insurance to health care professionals and providers based on customary coverage terms and liability amounts. Requires the Secretary of Health and Human Services to certify corporations as medical malpractice insurance corporations if they meet the requirements of this Act, which include that excess earnings of such corporations are used to reduce premiums paid by the insured. Allows such corporations to operate and function without hindrance or impedance in all states.
Prohibits any medical malpractice liability action from being brought against a health care professional or provider without an affidavit from a qualified specialist or medical expert that there is a reasonable and meritorious cause for filing the action.
Requires the Secretary to establish medical malpractice arbitration panels to hear and render decisions on all medical malpractice claims. Mandates participation in such panels. Allows participants dissatisfied with the results to bring a federal civil action.
Requires the Attorney General to proscribe regulations to ensure that such arbitration: (1) is affordable; (2) encourages timely resolution of medical malpractice claims; (3) encourages the consistent and fair resolution of such claims; and (4) provides for reasonable convenient access to dispute resolution.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3865 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 3865
To provide for the establishment of medical malpractice insurance
corporations which may operate and function without hindrance or
impedance in any or all of the States, to limit frivolous medical
malpractice lawsuits, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 22, 2005
Mr. Andrews introduced the following bill; which was referred to the
Committee on Energy and Commerce, and in addition to the Committee on
the Judiciary, 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 provide for the establishment of medical malpractice insurance
corporations which may operate and function without hindrance or
impedance in any or all of the States, to limit frivolous medical
malpractice lawsuits, and for other purposes.
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 ``Medical Malpractice Insurance
Corporation Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Arbitration.--The term ``arbitration'' means a
settlement process that--
(A) is coordinated by a neutral third party or a
panel of neutral third parties, such as a medical
malpractice arbitration panel established under section
4(e); and
(B) includes the ultimate rendering of a formal
opinion as to factual or legal findings.
(2) Claimant.--The term ``claimant'' means any person who
alleges a medical malpractice claim, and any person on whose
behalf such a claim is alleged, including the decedent in the
case of an action brought through or on behalf of an estate.
(3) Health care professional.--The term ``health care
professional'' means any individual who provides health care
services in a State and who is required by the laws or
regulations of the State to be licensed or certified by the
State to provide such services in the State.
(4) Health care provider.--The term ``health care
provider'' means a hospital or other organization or
institution that is engaged in the delivery of health care
services in a State and that is required by the laws or
regulations of the State to be licensed or certified by the
State to engage in the delivery of such services in the State.
(5) Hospital.--The term ``hospital'' means any of the
following:
(A) Any facility defined as a hospital under State
law and issued an operating certificate as a hospital
or nursing home.
(B) Any ambulance service which is registered or
certified under State law and which is designed and
equipped to provide definitive acute medical care
pursuant to rules and regulations of the State health
agency, which must include the provision of advanced
life support services.
(C) Any community mental health center operated by
a State or unit of local government, holding an
operating certificate issued by the State mental
hygiene agency.
(D) Any certified public or voluntary non-profit
home care service agency which possesses a valid
certificate of approval issued under State public
health law.
(6) Injury.--The term ``injury'' means any illness,
disease, or other harm that is the subject of a medical
malpractice liability action or a medical malpractice claim.
(7) Medical malpractice claim.--The term ``medical
malpractice claim'' means a claim against a health care
professional or health care provider in which a claimant
alleges that injury was caused by the provision of (or the
failure to provide) health care services, except that such term
does not include--
(A) any claim based on an allegation of an
intentional tort; or
(B) any claim based on an allegation that a product
is defective or unreasonably dangerous.
(8) Medical malpractice insurance.--The term ``medical
malpractice insurance'' means insurance against legal liability
of the insured, and against loss, damage, or expense incident
to a claim of such liability arising out of the death or injury
of any person due to medical, dental, podiatric, certified
nurse-midwifery, or hospital malpractice by any health care
professional or health care provider.
(9) Medical malpractice liability action.--The term
``medical malpractice liability action'' means an arbitration
proceeding (or a subsequent civil action brought in a State or
Federal court) against a health care professional or a health
care provider in which the claimant alleges a medical
malpractice claim.
(10) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(11) State.--The term ``State'' means the 50 States, the
District of Columbia, and any Commonwealth, territory, or
possession of the United States.
SEC. 3. MEDICAL MALPRACTICE INSURANCE CORPORATIONS.
(a) Establishment and Purpose.--There are authorized to be
established bodies corporate which shall provide medical malpractice
insurance to health care professionals and health care providers based
on customary coverage terms and liability amounts.
(b) Certification.--The Secretary for Health and Human Services
shall certify as a medical malpractice insurance corporation each
corporation that satisfies the requirements of subsection (d).
(c) Operation.--Notwithstanding any State law to the contrary, a
medical malpractice insurance corporation certified under subsection
(b) may operate and function without hindrance or impedance in any or
all of the several States.
(d) Certification Requirements.--A corporation may be certified as
a medical malpractice insurance corporation if--
(1) it is subject to the fiduciary standards promulgated by
the Secretary for Health and Human Services, as required by
subsection (e);
(2) its corporate structure is organized in such a way as
to require any excess earnings to be used to reduce premiums
paid by their insureds, consistent with the fiduciary standards
promulgated under subsection (e); and
(3) its corporate structure is organized under the
requirements of section 501(c)(3) of the Internal Revenue Code
of 1986.
(e) Promulgation of and Adherence to Fiduciary Standards.--The
Secretary shall promulgate appropriate fiduciary standards to which all
such medical malpractice insurance corporations shall adhere.
SEC. 4. MEDICAL MALPRACTICE DISPUTE RESOLUTION.
(a) Qualified Expert Opinion.--
(1) Accompanying affidavit.--No medical malpractice
liability action may be brought against a health care
professional or a health care provider by any claimant unless,
at the time the claimant brings the action (except as provided
in subsection (c)), it is accompanied by the affidavit of a
qualified specialist or medical expert containing the
information required by paragraph (2).
(2) Contents of affidavit.--To satisfy the requirements of
paragraph (1), the affidavit shall include the specialist's or
expert's statement of belief that, based on a review of the
available medical record and other relevant material, there is
a reasonable and meritorious cause for the filing of the
action.
(b) Qualified Specialist or Medical Expert.--With respect to a
medical malpractice liability action, a qualified specialist or medical
expert is a person who has been so recognized by the Secretary or has
received proper accreditation from the medical licensing board of any
State, such that such qualified specialist or medical expert is
recognized--
(1) to be knowledgeable in the relevant issues involved in
the action;
(2) to practice (or to have practiced) or to teach (or to
have taught) in the same area of health care or medicine that
is at issue in the action; and
(3) in the case of an action against a physician, to be
board certified in a speciality relating to that area of
medicine.
(c) Extension in Certain Instances.--
(1) Unavailability of adequate medical records.--Subject to
paragraph (2), subsection (a) shall not apply with respect to a
claimant who brings a medical malpractice liability action
without submitting an affidavit described in such subsection
if, as of the time the claimant brings the action, the claimant
certifies that adequate medical records or other information
necessary to prepare the affidavit are unavailable.
(2) Time limit.--In the case of an claimant who brings an
action for which paragraph (1) applies, the action shall be
dismissed unless the claimant submits the affidavit described
in subsection (a) not later than 120 days after commencement of
the action.
(d) Medical Malpractice Arbitration Panels.--
(1) Establishment.--The Secretary of Health and Human
Services shall provide for the establishment of medical
malpractice arbitration panels which shall hear and render a
decision on all medical malpractice claims.
(2) Composition of arbitration panels.--Arbitration shall
be conducted by one or more arbitrators who--
(A) are qualified specialists or medical experts;
and
(B) are selected by agreement of the parties, or,
if the parties do not agree, who are qualified under
applicable State law and selected by the court.
(3) Mandatory participation and dissatisfaction.--
(A) Mandatory participation.--Participation in
arbitration to resolve a medical malpractice claim is
mandatory, and shall be in lieu of any other
alternative dispute resolution method required by any
other law or by any contractual arrangement made by or
on behalf of the parties to the arbitration before the
commencement of the action.
(B) Dissatisfaction.--Any party dissatisfied with a
determination reached by a medical malpractice
arbitration panel with respect to a medical malpractice
claim as a result of such arbitration shall not be
bound by such determination, and may bring a civil
action in any Federal district court of competent
jurisdiction within the 30-day period beginning on the
date such determination was reached. The determination
of such arbitration, and all statements, offers, and
communications made during such arbitration, shall be
inadmissible for purposes of adjudicating such action.
(4) Frivolousness.--
(A) Federal district court.--Except as provided in
subparagraph (B), if a medical malpractice arbitration
panel determines a medical malpractice claim to be
frivolous, the panel shall dismiss such claim. If such
claim is dismissed, the claimant may bring a civil
action in any Federal district court of competent
jurisdiction. If the defendant prevails in such action,
the court may, in its discretion and as the interests
of justice require, assess against the claimant a
reasonable attorney's fee and other litigation costs
and expenses (including expert fees) reasonably
incurred.
(B) Exception.--If a medical malpractice
arbitration panel is unable to determine if a medical
malpractice claim is frivolous, the panel may dismiss
such claim. If such claim is dismissed, the claimant
may bring a civil action in any Federal district court
of competent jurisdiction. If the claimant prevails in
such action, each party shall individually be
responsible for reasonable attorney's fee and other
litigation costs and expenses (including expert fees)
reasonably incurred.
(5) Disclosure.--Each State shall disclose to residents of
the State the procedures relating to arbitration and formal
adjudication for resolution of medical malpractice claims.
(6) Additional requirements.--The Attorney General, in
consultation with the Secretary for Health and Human Services,
shall proscribe regulations to ensure that medical malpractice
arbitration is carried out in a manner that--
(A) is affordable for the parties involved;
(B) encourages timely resolution of medical
malpractice claims;
(C) encourages the consistent and fair resolution
of such claims; and
(D) provides for reasonably convenient access to
dispute resolution.
(e) Effective Date.--This section shall apply with respect to any
medical malpractice claim that arises more than 180 days after the date
of the enactment of this Act.
SEC. 5. PREEMPTION.
The provisions of this Act shall preempt any State law to the
extent such law is inconsistent with the provisions of this Act.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, 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.
Referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, 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.
Referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, 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.
Referred to the Subcommittee on Health.
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