PRINTER'S NO. 924
No. 757 Session of 2005
INTRODUCED BY BROWNE, EARLL, CORMAN AND O'PAKE, JUNE 14, 2005
REFERRED TO PUBLIC HEALTH AND WELFARE, JUNE 14, 2005
AN ACT 1 Amending the act of March 20, 2002 (P.L.154, No.13), entitled 2 "An act reforming the law on medical professional liability; 3 providing for patient safety and reporting; establishing the 4 Patient Safety Authority and the Patient Safety Trust Fund; 5 abrogating regulations; providing for medical professional 6 liability informed consent, damages, expert qualifications, 7 limitations of actions and medical records; establishing the 8 Interbranch Commission on Venue; providing for medical 9 professional liability insurance; establishing the Medical 10 Care Availability and Reduction of Error Fund; providing for 11 medical professional liability claims; establishing the Joint 12 Underwriting Association; regulating medical professional 13 liability insurance; providing for medical licensure 14 regulation; providing for administration; imposing penalties; 15 and making repeals," further providing for declaration of 16 policy, for patient safety definitions, for powers and duties 17 of the Patient Safety Authority and for powers and duties of 18 the Department of Health; and providing for whistleblower 19 protection. 20 The General Assembly of the Commonwealth of Pennsylvania 21 hereby enacts as follows: 22 Section 1. Section 102 of the act of March 20, 2002 23 (P.L.154, No.13), known as the Medical Care Availability and 24 Reduction of Error (Mcare) Act, is amended to read: 25 Section 102. Declaration of policy. 26 The General Assembly finds and declares as follows:
1 (1) It is the purpose of this act to ensure that medical 2 care is available in this Commonwealth through a 3 comprehensive and high-quality health care system. 4 (2) Access to a full spectrum of hospital services and 5 to highly trained physicians in all specialties must be 6 available across this Commonwealth. 7 (3) To maintain this system, medical professional 8 liability insurance has to be obtainable at an affordable and 9 reasonable cost in every geographic region of this 10 Commonwealth. 11 (4) A person who has sustained injury or death as a 12 result of medical negligence by a health care provider must 13 be afforded a prompt determination and fair compensation. 14 (5) Every effort must be made to reduce and eliminate 15 medical errors by identifying problems and implementing 16 solutions that promote patient safety. 17 (6) Recognition and furtherance of all of these elements 18 is essential to the public health, safety and welfare of all 19 the citizens of Pennsylvania. 20 (7) It is the purpose of this act to enhance patient 21 safety by establishing meaningful whistleblower protection 22 and a reporting system for medical errors which is responsive 23 to legitimate concerns. 24 Section 2. Section 302 of the act is amended by adding 25 definitions to read: 26 Section 302. Definitions. 27 The following words and phrases when used in this chapter 28 shall have the meanings given to them in this section unless the 29 context clearly indicates otherwise: 30 * * * 20050S0757B0924 - 2 -
1 "Disciplinary action." An action against an individual which 2 has a negative impact on the individual in relation to salary or 3 terms of employment or professional affiliation. The term 4 includes discharge and loss or alteration of privileges of 5 affiliation. 6 * * * 7 "Health care facility." A facility licensed under the act of 8 July 19, 1979 (P.L.130, No.48), known as the Health Care 9 Facilities Act. 10 "Health care practitioner." An individual who is authorized 11 to practice some component of the healing arts by a license, 12 permit, certificate or registration, issued by a Commonwealth 13 licensing agency. 14 * * * 15 Section 3. Sections 304(a) and (b) and 306 of the act are 16 amended to read: 17 Section 304. Powers and duties. 18 (a) General rule.--The authority shall do all of the 19 following: 20 (1) Adopt bylaws necessary to carry out the provisions 21 of this chapter. 22 (2) Employ staff as necessary to implement this chapter. 23 (3) Make, execute and deliver contracts and other 24 instruments. 25 (4) Apply for, solicit, receive, establish priorities 26 for, allocate, disburse, contract for, administer and spend 27 funds in the fund and other funds that are made available to 28 the authority from any source consistent with the purposes of 29 this chapter. 30 (5) Contract with a for-profit or registered nonprofit 20050S0757B0924 - 3 -
1 entity or entities, other than a health care provider, to do 2 the following: 3 (i) Collect, analyze and evaluate data regarding 4 reports of serious events and incidents, including the 5 identification of performance indicators and patterns in 6 frequency or severity at certain medical facilities or in 7 certain regions of this Commonwealth. 8 (ii) Transmit to the authority recommendations for 9 changes in health care practices and procedures which may 10 be instituted for the purpose of reducing the number and 11 severity of serious events and incidents. 12 (iii) Directly advise reporting medical facilities 13 of immediate changes that can be instituted to reduce 14 serious events and incidents. 15 (iv) Conduct reviews in accordance with subsection 16 (b). 17 (6) Receive and evaluate recommendations made by the 18 entity or entities contracted with in accordance with 19 paragraph (5) and [report] advise the department of those 20 recommendations [to the department, which shall have no more 21 than 30 days to approve or disapprove the recommendations]. 22 (7) [After consultation and approval by the department, 23 issue] Issue recommendations to medical facilities on a 24 facility-specific or on a Statewide basis regarding changes, 25 trends and improvements in health care practices and 26 procedures for the purpose of reducing the number and 27 severity of serious events and incidents. Prior to issuing 28 recommendations, consideration shall be given to the 29 following factors that include expectation of improved 30 quality care, implementation feasibility, other relevant 20050S0757B0924 - 4 -
1 implementation practices and the cost impact to patients, 2 payors and medical facilities. Statewide recommendations 3 shall be issued to medical facilities on a continuing basis 4 and shall be published and posted on the department's 5 publicly accessible Internet website and the authority's 6 publicly accessible [World Wide Web site] Internet website. 7 (8) Meet with the department for purposes of 8 implementing this chapter. 9 (9) Upon receipt of a complaint under subsection (b), do 10 all of the following: 11 (i) Distribute copies of the complaint to each 12 director on the board. 13 (ii) Within ten business days, require the 14 department to investigate the complaint under section 15 306(a)(6). 16 (iii) Maintain the confidentiality of all 17 information resulting from the complaint and the 18 investigation. Information under this subparagraph may be 19 released only when sanctions are pursued under section 20 306(a)(7) or until section 315(d) is invoked by a health 21 care practitioner. 22 (10) Disseminate, through publications and training 23 sessions, information about patient safety reporting under 24 subsection (b)(2). 25 (b) [Anonymous reports] Reports to the authority.-- 26 (1) (i) A health care worker who has complied with 27 section 308(a) may file an anonymous report regarding a 28 serious event with the authority. Upon receipt of the report, 29 the authority shall give notice to the affected medical 30 facility that a report has been filed. [The authority shall 20050S0757B0924 - 5 -
1 conduct its own review of the report unless the medical 2 facility has already commenced an investigation of the 3 serious event.] The medical facility [shall] may provide the 4 authority with the results of its investigation no later than 5 30 days after receiving notice pursuant to this subsection. 6 [If the authority is dissatisfied with the adequacy of the 7 investigation conducted by the medical facility, the 8 authority shall perform its own review of the serious event 9 and may refer a medical facility and any involved licensee to 10 the department for failure to report pursuant to section 11 313(e) and (f).] 12 (ii) This paragraph shall not be construed to 13 preclude a direct report to the authority under paragraph 14 (2). 15 (2) The authority shall maintain a Statewide 16 confidential, toll-free telephone line to enable health care 17 practitioners to report on patient safety and the quality of 18 patient care provided by a health care facility. If a health 19 care practitioner who files a complaint under this paragraph 20 requests anonymity, the authority shall, except to the extent 21 necessary to verify credentials, maintain anonymity. 22 * * * 23 Section 306. Department responsibilities. 24 (a) General rule.--The department shall do all of the 25 following: 26 (1) Review and approve patient safety plans in 27 accordance with section 307. 28 (2) Receive reports of serious events and infrastructure 29 failures under section 313. 30 (3) Investigate serious events and infrastructure 20050S0757B0924 - 6 -
1 failures. 2 (4) In conjunction with the authority, analyze and 3 evaluate existing health care procedures and approve 4 recommendations issued by the authority pursuant to section 5 304(a)(6) and (7). 6 (5) Meet with the authority for purposes of implementing 7 this chapter. 8 (6) Upon referral of a complaint under section 9 304(a)(9), do all of the following: 10 (i) Within ten business days, investigate the 11 complaint. In order to carry out the investigation under 12 this subparagraph, the department shall consult with one, 13 and, if the department deems necessary, a second, 14 independent, external quality review team to examine the 15 team's recommendations and findings. A team under this 16 subparagraph shall consider the appropriate use of 17 patient care standards in the situation under 18 investigation and make recommendations based upon its 19 findings. The following apply to a team consulted under 20 this subparagraph: 21 (A) The team shall consist of at least all of 22 the following: 23 (I) A registered nurse who holds a license 24 under the act of May 22, 1951 (P.L.317, No.69), 25 known as The Professional Nursing Law; is engaged 26 in active practice for at least 20 hours per 27 week; and holds a specialty-specific 28 certification from the American Nurses 29 Credentialing Center. 30 (II) A physician or an osteopath who is 20050S0757B0924 - 7 -
1 engaged in active practice for at least 20 hours 2 per week and who is board-certified in a 3 specialty which is recognized by the American 4 Board of Medical Specialties or the American 5 Osteopathic Association and which is specific to 6 the situation under investigation. 7 (III) A pharmacist who is engaged in active 8 practice for at least 20 hours per week and who 9 is board-certified as a clinical pharmacist. 10 (B) A member of the team may not: 11 (I) be an employee or a contractor of the 12 health care facility or the health care 13 practitioner under investigation; 14 (II) be a past or current colleague of the 15 health care practitioner under investigation; 16 (III) have a past or current financial or 17 practice relationship with the health care 18 practitioner under review, that practitioner's 19 group, that practitioner's employer or that 20 practitioner's privilege-granting health care 21 facility; 22 (IV) have a past or current financial or 23 practice relationship with the health care 24 facility under investigation; or 25 (V) reside within 75 miles of the health 26 care facility under investigation. 27 (ii) If warranted by the investigation: 28 (A) Seek sanctions under paragraph (7). 29 (B) Recommend sanctions or other action to the 30 appropriate licensing board under Chapter 9. A 20050S0757B0924 - 8 -
1 licensing board or agency which receives a 2 recommendation under this clause shall report to the 3 authority concerning its action every 30 days until 4 the matter is finally disposed of. A report under 5 this clause shall be available to each director of 6 the board upon request. 7 (C) Recommend sanctions or other action to any 8 other appropriate Commonwealth agency. 9 (iii) Maintain the confidentiality of all 10 information resulting from the complaint and the 11 investigation until sanctions are sought under paragraph 12 (7) or until section 315(d) is invoked by a health care 13 practitioner. 14 (7) Impose an administrative penalty of up to $5,000 15 upon a health care facility for an act or omission which 16 impairs patient safety or the quality of patient care or, at 17 the department's discretion, take other remedial actions as 18 authorized by law. This paragraph is subject to 2 Pa.C.S. Ch. 19 5 Subch. A (relating to practice and procedure of 20 Commonwealth agencies) and Ch. 7 Subch. A (relating to 21 judicial review of Commonwealth agency action). 22 (b) Department consideration.--The recommendations made to 23 medical facilities pursuant to subsection (a)(4) may be 24 considered by the department for licensure purposes under the 25 act of July 19, 1979 (P.L.130, No.48), known as the Health Care 26 Facilities Act, but shall not be considered mandatory unless 27 adopted by the department as regulations pursuant to the act of 28 June 25, 1982 (P.L.633, No.181), known as the Regulatory Review 29 Act. 30 Section 4. The act is amended by adding a section to read: 20050S0757B0924 - 9 -
1 Section 315. Whistleblower protection. 2 (a) Applicability.--This section applies to a health care 3 practitioner who does any of the following: 4 (1) Files a complaint under section 304(b). 5 (2) Makes a report to an agency which has jurisdiction 6 over patient safety, health care or the quality of patient 7 care provided by any health care facility or health care 8 professional. 9 (3) Makes a report to a health care facility on patient 10 safety or the quality of patient care provided by the health 11 care facility. This paragraph includes a report to any 12 employer, supervisor, coworker or other person with 13 privileges. 14 (b) Prohibition.--A health care facility that employs or 15 grants conditional or unconditional privileges to a health care 16 practitioner may not take disciplinary action against the health 17 care practitioner in retaliation for filing a complaint in good 18 faith or making a report in good faith under subsection (a). 19 (c) Immunity.--A health care practitioner who in good faith 20 files a complaint or makes a report under subsection (a) shall 21 be immune from civil liability arising from filing the complaint 22 or making the report. 23 (d) Remedy.-- 24 (1) A health care practitioner who is aggrieved by a 25 violation of subsection (b) may recover damages proximately 26 caused by the violation, including pain and suffering; cost 27 of the litigation; and attorney fees. 28 (2) Notwithstanding any other provision of law, in an 29 action under this section, all patient records relating to 30 the complaint under this section, including peer review 20050S0757B0924 - 10 -
1 documents, shall be available to the court and each party for 2 possible use as documentary evidence. 3 (e) Deterring complaints and reports.--Any provision of a 4 contract or a professional affiliation arrangement, including a 5 document granting privileges, entered into with a health care 6 practitioner which limits the health care practitioner's ability 7 to file a complaint or make a report under subsection (a) or 8 which contains any threat, implicit or otherwise, or contains 9 any penalty for filing a complaint or making a report under 10 subsection (a) is against public policy and shall be void. 11 (f) Notification to health care practitioners.--Within 12 12 months of the effective date of this section, every Commonwealth 13 licensing agency that licenses, permits, certifies or registers 14 health care practitioners within this Commonwealth shall notify 15 the health care practitioners of the Statewide confidential, 16 toll-free telephone line and the whistleblower protection 17 provided through this act through already scheduled newsletters, 18 annual notices and other mailings. 19 Section 5. This act shall take effect in 90 days. E2L40MSP/20050S0757B0924 - 11 -