[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1518 Introduced in Senate (IS)]
108th CONGRESS
1st Session
S. 1518
To restore reliability to the medical justice system by fostering
alternatives to current medical tort litigation, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 31 (legislative day, July 21), 2003
Mr. Enzi introduced the following bill; which was read twice and
referred to the Committee on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To restore reliability to the medical justice system by fostering
alternatives to current medical tort litigation, 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 ``Reliable Medical Justice Act''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to restore reliability to the medical justice system by
fostering alternatives to current medical tort litigation that
promote early disclosure of health care errors and provide
prompt, fair, and reasonable compensation to patients who are
injured by health care errors; and
(2) to support and assist States in developing such
alternatives.
SEC. 3. STATE DEMONSTRATION PROGRAMS TO EVALUATE ALTERNATIVES TO
CURRENT MEDICAL TORT LITIGATION.
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. 3990. STATE DEMONSTRATION PROGRAM TO EVALUATE ALTERNATIVES TO
CURRENT MEDICAL TORT LITIGATION.
``(a) In General.--The Secretary is authorized to award
demonstration grants to States for the development, implementation, and
evaluation of alternatives to current tort litigation for resolving
disputes over injuries allegedly caused by health care providers or
health care organizations.
``(b) Duration.--The Secretary may award up to 7 grants under
subsection (a) and each grant awarded under such subsection may not
exceed a period of 10 years.
``(c) Conditions for Demonstration Grants.--
``(1) Requirements.--Each State desiring a grant under
subsection (a) shall--
``(A) develop an alternative to current tort
litigation for resolving disputes over injuries
allegedly caused by health care providers or health
care organizations that may be 1 of the models
described in subsection (d); and
``(B) establish procedures to allow for patient
safety data related to disputes resolved under
subparagraph (A) to be collected and analyzed by
organizations that engage in voluntary efforts to
improve patient safety and the quality of health care
delivery, in accordance with guidelines established by
the Secretary.
``(2) Alternative to current tort litigation.--Each State
desiring a grant under subsection (a) shall demonstrate how the
proposed alternative described in paragraph (1)(A)--
``(A) makes the medical liability system more
reliable;
``(B) enhances patient safety; and
``(C) maintains access to liability insurance.
``(3) Sources of compensation.--Each State desiring a grant
under subsection (a) shall identify the sources from and
methods by which compensation would be paid for claims resolved
under the proposed alternative to current tort litigation,
which may include public or private funding sources, or a
combination of such sources. Funding methods may provide
financial incentives for activities that improve patient
safety.
``(4) Scope.--Each State desiring a grant under subsection
(a) may establish a scope of jurisdiction (such as a designated
geographic region or a designated area of health care practice)
for the proposed alternative to current tort litigation that is
sufficient to evaluate the effects of the alternative.
``(d) Models.--
``(1) In general.--Any State desiring a grant under
subsection (a) that proposes an alternative described in
paragraph (2), (3), or (4) shall be deemed to meet the criteria
under subsection (c)(2).
``(2) Early disclosure and compensation model.--In the
early disclosure and compensation model, the State shall--
``(A) provide immunity from tort liability (except
in cases of fraud, or in cases of criminal or
intentional harm) to any health care provider or health
care organization that enters into an agreement to pay
compensation to a patient for an injury;
``(B) set a limited time period during which a
health care provider or health care organization may
make an offer of compensation benefits under
subparagraph (A), with consideration for instances
where prompt recognition of an injury is unlikely or
impossible;
``(C) require that the compensation provided under
subparagraph (A) include--
``(i) payment for the net economic loss of
the patient, on a periodic basis, reduced by
any payments received by the patient under--
``(I) any health or accident
insurance;
``(II) any wage or salary
continuation plan; or
``(III) any disability income
insurance;
``(ii) payment for the patient's pain and
suffering, if appropriate for the injury, based
on a capped payment schedule developed by the
State in consultation with relevant experts;
and
``(iii) reasonable attorney's fees;
``(D) not abridge the right of an injured patient
to seek redress through the State tort system if a
health care provider does not enter into a compensation
agreement with the patient in accordance with
subparagraph (A);
``(E) prohibit a patient who accepts compensation
benefits in accordance with subparagraph (A) from
filing a health care lawsuit against other health care
providers or health care organizations for the same
injury; and
``(F) permit a health care provider or health care
organization that enters into an agreement to pay
compensation benefits to an individual under
subparagraph (A) to join in the payment of the
compensation benefits of any health care provider or
health care organization that is potentially liable, in
whole or in part, for the injury.
``(3) Administrative determination of compensation model.--
``(A) In general.--In the administrative
determination of compensation model--
``(i) the State shall--
``(I) designate an administrative
entity (in this paragraph referred to
as the `Board') that shall include
representatives of--
``(aa) relevant State
licensing boards;
``(bb) patient advocacy
groups;
``(cc) health care
providers and health care
organizations; and
``(dd) attorneys in
relevant practice areas;
``(II) set up classes of avoidable
injuries that will be used by the Board
to determine compensation under clause
(ii)(II) and, in setting such classes,
may consider 1 or more factors,
including--
``(aa) the severity of the
disability arising from the
injury;
``(bb) the cause of injury;
``(cc) the length of time
the patient will be affected by
the injury;
``(dd) the degree of fault
of the health care provider or
health care organization; and
``(ee) standards of care
that the State may adopt and
their breach;
``(III) modify tort liability,
through statute or contract, to bar
negligence claims in court against
health care providers and health care
organizations for the classes of
injuries established under subclause
(II), except in cases of fraud, or in
cases of criminal or intentional harm;
``(IV) outline a procedure for
informing patients about the modified
liability system described in this
paragraph and, in systems where
participation by the health care
provider, health care organization, or
patient is voluntary, allow for the
decision by the provider, organization,
or patient of whether to participate to
be made prior to the provision of, use
of, or payment for the health care
service;
``(V) provide for an appeals
process to allow for a review of
decisions; and
``(VI) establish procedures to
coordinate settlement payments with
other sources of payment;
``(ii) the Board shall--
``(I) resolve health care liability
claims for certain classes of avoidable
injuries as determined by the State and
determine compensation for such claims;
and
``(II) develop a schedule of
compensation to be used in making such
determinations that includes--
``(aa) payment for the net
economic loss of the patient,
on a periodic basis, reduced by
any payments received by the
patient under any health or
accident insurance, any wage or
salary continuation plan, or
any disability income
insurance;
``(bb) payment for the
patient's pain and suffering,
if appropriate for the injury,
based on a capped payment
schedule developed by the State
in consultation with relevant
experts; and
``(cc) reasonable
attorney's fees; and
``(iii) the Board may--
``(I) develop guidelines relating
to--
``(aa) the standard of
care; and
``(bb) the credentialing
and disciplining of doctors;
and
``(II) develop a plan for updating
the schedule under clause (ii)(II) on a
regular basis.
``(B) Appeals.--The State, in establishing the
appeals process described in subparagraph (A)(i)(V),
may choose whether to allow for de novo review, review
with deference, or some opportunity for parties to
reject determinations by the Board and elect to file a
civil action after such rejection. Any State desiring
to adopt the model described in this paragraph shall
indicate how such review method meets the criteria
under subsection (c)(2).
``(C) Timeliness.--Any claim handled under the
system described in this paragraph shall provide for
adjudication that is more timely and expedited than
adjudication in a traditional tort system.
``(4) Special health care court model.--In the special
health care court model, the State shall--
``(A) establish a special court for adjudication of
disputes over injuries allegedly caused by health care
providers or health care organizations;
``(B) ensure that such court is presided over by
judges with expertise in and an understanding of health
care;
``(C) provide authority to such judges to make
binding rulings on causation, compensation, standards
of care, and related issues;
``(D) provide for an appeals process to allow for a
review of decisions; and
``(E) at its option, establish an administrative
entity similar to the entity described in paragraph
(3)(a)(i)(I) to provide advice and guidance to the
special court.
``(e) Application.--Each State desiring a grant under subsection
(a) shall submit to the Secretary an application, at such time, in such
manner, and containing such information as the Secretary may require.
``(f) Report.--Each State receiving a grant under subsection (a)
shall submit to the Secretary a report evaluating the effectiveness of
activities funded with grants awarded under such subsection at such
time and in such manner as the Secretary may require.
``(g) Technical Assistance.--The Secretary shall provide technical
assistance to the States awarded grants under subsection (a). Such
technical assistance shall include the development, in consultation
with States, of common definitions, formats, and data collection
infrastructure for States receiving grants under this section to use in
reporting to facilitate aggregation and analysis of data both within
and between States. States not receiving grants under this section may
also use such common definitions, formats, and data collection
infrastructure.
``(h) Evaluation.--
``(1) In general.--The Secretary shall enter into a
contract with an appropriate research organization to conduct
an overall evaluation of the effectiveness of grants awarded
under subsection (a) and to annually prepare and submit a
report to the appropriate committees of Congress. Such an
evaluation shall begin not later than 18 months following the
date of implementation of the first program funded by a grant
under subsection (a).
``(2) Contents.--The evaluation under paragraph (1) shall
include--
``(A) an analysis of the effect of the grants
awarded under subsection (a) on the number, nature, and
costs of health care liability claims;
``(B) a comparison of the claim and cost
information of each State receiving a grant under
subsection (a); and
``(C) a comparison between States receiving a grant
under this section and States that did not receive such
a grant, matched to ensure similar legal and health
care environments, and to determine the effects of the
grants and subsequent reforms on--
``(i) the liability environment;
``(ii) health care quality; and
``(iii) patient safety.
``(i) Option To Provide for Initial Planning Grants.--Of the funds
appropriated pursuant to subsection (k), the Secretary may use a
portion not to exceed $500,000 per State to provide planning grants to
such States for the development of demonstration proposals meeting the
criteria described in subsection (c). In selecting States to receive
such planning grants, the Secretary shall give preference to those
States in which current law would not prohibit the adoption of an
alternative to current tort litigation.
``(j) Definitions.--In this section:
``(1) Health care services.--The term `health care
services' means any services provided by a health care
provider, or by any individual working under the supervision of
a health care provider, that relate to--
``(A) the diagnosis, prevention, or treatment of
any human disease or impairment; or
``(B) the assessment of the health of human beings.
``(2) Health care organization.--The term `health care
organization' means any individual or entity which is obligated
to provide, pay for, or administer health benefits under any
health plan.
``(3) Health care provider.--The term `health care
provider' means any individual or entity--
``(A) licensed, registered, or certified under
Federal or State laws or regulations to provide health
care services; or
``(B) required to be so licensed, registered, or
certified but that is exempted by other statute or
regulation.
``(4) Net economic loss.--The term `net economic loss'
means--
``(A) reasonable expenses incurred for products,
services, and accommodations needed for health care,
training, and other remedial treatment and care of an
injured individual;
``(B) reasonable and appropriate expenses for
rehabilitation treatment and occupational training;
``(C) 100 percent of the loss of income from work
that an injured individual would have performed if not
injured, reduced by any income from substitute work
actually performed; and
``(D) reasonable expenses incurred in obtaining
ordinary and necessary services to replace services an
injured individual would have performed for the benefit
of the individual or the family of such individual if
the individual had not been injured.
``(k) Authorization of Appropriations.--There are authorized to be
appropriated to carry out this section such sums as may be necessary.
Amounts appropriated pursuant to this subsection shall remain available
until expended.''.
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