PRINTER'S NO.  203

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

204

Session of

2009

  

  

INTRODUCED BY GODSHALL, BAKER, BEYER, BOYD, CARROLL, CLYMER, FLECK, GEIST, GROVE, MILNE, MOUL, PAYNE, PETRI, PYLE, ROAE, SIPTROTH, STERN, SWANGER, TRUE AND WATSON, FEBRUARY 2, 2009

  

  

REFERRED TO COMMITTEE ON INSURANCE, FEBRUARY 2, 2009  

  

  

  

AN ACT

  

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Amending the act of March 20, 2002 (P.L.154, No.13), entitled

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"An act reforming the law on medical professional liability;

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providing for patient safety and reporting; establishing the

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Patient Safety Authority and the Patient Safety Trust Fund;

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abrogating regulations; providing for medical professional

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liability informed consent, damages, expert qualifications,

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limitations of actions and medical records; establishing the

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Interbranch Commission on Venue; providing for medical

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professional liability insurance; establishing the Medical

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Care Availability and Reduction of Error Fund; providing for

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medical professional liability claims; establishing the Joint

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Underwriting Association; regulating medical professional

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liability insurance; providing for medical licensure

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regulation; providing for administration; imposing penalties;

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and making repeals," further providing for medical

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professional liability insurance, for basic coverage limits,

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for Medical Care Availability and Reduction of Error Fund

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liability limits and for extended claims.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Sections 711(d), 712(c) and 715 of the act of

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March 20, 2002 (P.L.154, No.13), known as the Medical Care

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Availability and Reduction of Error (Mcare) Act, are amended to

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read:

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Section 711.  Medical professional liability insurance.

 


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* * *

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(d)  Basic coverage limits.--A health care provider shall

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insure or self-insure medical professional liability in

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accordance with the following:

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(1)  For policies issued or renewed in the calendar year

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2002, the basic insurance coverage shall be:

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(i)  $500,000 per occurrence or claim and $1,500,000

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per annual aggregate for a health care provider who

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conducts more than 50% of its health care business or

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practice within this Commonwealth and that is not a

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hospital.

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(ii)  $500,000 per occurrence or claim and $1,500,000

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per annual aggregate for a health care provider who

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conducts 50% or less of its health care business or

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practice within this Commonwealth.

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(iii)  $500,000 per occurrence or claim and

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$2,500,000 per annual aggregate for a hospital.

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(2)  For policies issued or renewed in the calendar years

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2003, 2004 and 2005, the basic insurance coverage shall be:

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(i)  $500,000 per occurrence or claim and $1,500,000

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per annual aggregate for a participating health care

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provider that is not a hospital.

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(ii)  $1,000,000 per occurrence or claim and

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$3,000,000 per annual aggregate for a nonparticipating

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health care provider.

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(iii)  $500,000 per occurrence or claim and

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$2,500,000 per annual aggregate for a hospital.

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(3)  Unless the commissioner finds pursuant to section

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745(a) that additional basic insurance coverage capacity is

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not available, for policies issued or renewed in calendar

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year 2006 and each year thereafter subject to paragraph (4),

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the basic insurance coverage shall be:

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(i)  $750,000 per occurrence or claim and $2,250,000

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per annual aggregate for a participating health care

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provider that is not a hospital.

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(ii)  $1,000,000 per occurrence or claim and

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$3,000,000 per annual aggregate for a nonparticipating

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health care provider.

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(iii)  $750,000 per occurrence or claim and

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$3,750,000 per annual aggregate for a hospital.

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If the commissioner finds pursuant to section 745(a) that

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additional basic insurance coverage capacity is not

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available, the basic insurance coverage requirements shall

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remain at the level required by paragraph (2); and the

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commissioner shall conduct a study every two years until the

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commissioner finds that additional basic insurance coverage

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capacity is available, at which time the commissioner shall

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increase the required basic insurance coverage in accordance

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with this paragraph.

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(4)  Unless the commissioner finds pursuant to section

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745(b) that additional basic insurance coverage capacity is

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not available, for policies issued or renewed three years

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after the increase in coverage limits required by paragraph

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(3) and for each year thereafter, the basic insurance

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coverage shall be:

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(i)  [$1,000,000] $500,000 per occurrence or claim

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and [$3,000,000] $1,500,000 per annual aggregate for a

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participating health care provider that is not a

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hospital.

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(ii)  [$1,000,000] $500,000 per occurrence or claim

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and [$3,000,000] $1,500,000 per annual aggregate for a

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nonparticipating health care provider.

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(iii)  $1,000,000 per occurrence or claim and

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$4,500,000 per annual aggregate for a hospital.

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[If the commissioner finds pursuant to section 745(b) that

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additional basic insurance coverage capacity is not

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available, the basic insurance coverage requirements shall

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remain at the level required by paragraph (3); and the

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commissioner shall conduct a study every two years until the

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commissioner finds that additional basic insurance coverage

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capacity is available, at which time the commissioner shall

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increase the required basic insurance coverage in accordance

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with this paragraph.]

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* * *

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Section 712.  Medical Care Availability and Reduction of Error

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Fund.

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* * *

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(c)  Fund liability limits.--

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(1)  For calendar year 2002, the limit of liability of

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the fund created in section 701(d) of the former Health Care

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Services Malpractice Act for each health care provider that

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conducts more than 50% of its health care business or

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practice within this Commonwealth and for each hospital shall

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be $700,000 for each occurrence and $2,100,000 per annual

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aggregate.

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(2)  The limit of liability of the fund for each

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participating health care provider shall be as follows:

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(i)  For calendar year 2003 and each year thereafter,

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the limit of liability of the fund shall be $500,000 for

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each occurrence and $1,500,000 per annual aggregate.

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(ii)  If the basic insurance coverage requirement is

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increased in accordance with section 711(d)(3) and,

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notwithstanding subparagraph (i), for each calendar year

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following the increase in the basic insurance coverage

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requirement, the limit of liability of the fund shall be

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$250,000 for each occurrence and $750,000 per annual

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aggregate.

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[(iii)  If the basic insurance coverage requirement

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is increased in accordance with section 711(d)(4) and,

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notwithstanding subparagraphs (i) and (ii), for each

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calendar year following the increase in the basic

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insurance coverage requirement, the limit of liability of

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the fund shall be zero.]

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(3)  For calendar year 2009 and each year thereafter the

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limit of liability of the fund shall be zero.

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* * *

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Section 715.  Extended claims.

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(a)  General rule.--If a medical professional liability claim

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against a health care provider who was required to participate

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in the Medical Professional Liability Catastrophe Loss Fund

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under section 701(d) of the act of October 15, 1975 (P.L.390,

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No.111), known as the Health Care Services Malpractice Act, is

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made more than four years after the breach of contract or tort

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occurred and if the claim is filed within the applicable statute

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of limitations, the claim shall be defended by the department if

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the department received a written request for indemnity and

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defense within 180 days of the date on which notice of the claim

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is first given to the participating health care provider or its

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insurer. Where multiple treatments or consultations took place

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less than four years before the date on which the health care

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provider or its insurer received notice of the claim, the claim

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shall be deemed for purposes of this section to have occurred

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less than four years prior to the date of notice and shall be

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defended by the insurer in accordance with this chapter.

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(b)  Payment.--If a health care provider is found liable for

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a claim defended by the department in accordance with subsection

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(a), the claim shall be paid by the fund. The limit of liability

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of the fund for a claim defended by the department under

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subsection (a) shall be $1,000,000 per occurrence[.], except as

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provided for in subsection (b.1).

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(b.1)  Limit of liability.--The limit of liability of the

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fund for an occurrence or claim that arose on or after January

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1, 2009, shall be zero.

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(c)  Concealment.--If a claim is defended by the department

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under subsection (a) or paid under subsection (b) and the claim

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is made after four years because of the willful concealment by

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the health care provider or its insurer, the fund shall have the

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right to full indemnity, including the department's defense

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costs, from the health care provider or its insurer.

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(d)  Extended coverage required.--Notwithstanding subsections

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(a), (b) and (c), all medical professional liability insurance

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policies issued on or after January 1, 2006, shall provide

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indemnity and defense for claims asserted against a health care

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provider for a breach of contract or tort which occurs four or

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more years after the breach of contract or tort occurred and

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after December 31, 2005.

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Section 2.  This act shall take effect in 60 days.

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