THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY CUTLER, MANN, AUMENT, BAKER, BEAR, BOYD, CLYMER, CREIGHTON, EVERETT, GEIST, HICKERNELL, HORNAMAN, KAUFFMAN, LAWRENCE, PICKETT, QUINN, REED, ROCK, SAYLOR AND TALLMAN, MAY 9, 2012

REFERRED TO COMMITTEE ON INSURANCE, MAY 9, 2012  

AN ACT

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

"An act reforming the law on medical professional liability;

providing for patient safety and reporting; establishing the

Patient Safety Authority and the Patient Safety Trust Fund;

abrogating regulations; providing for medical professional

liability informed consent, damages, expert qualifications,

limitations of actions and medical records; establishing the

Interbranch Commission on Venue; providing for medical

professional liability insurance; establishing the Medical

Care Availability and Reduction of Error Fund; providing for

medical professional liability claims; establishing the Joint

Underwriting Association; regulating medical professional

liability insurance; providing for medical licensure

regulation; providing for administration; imposing penalties;

and making repeals," providing for emergency care.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The act of March 20, 2002 (P.L.154, No.13), known

as the Medical Care Availability and Reduction of Error (Mcare)

Act, is amended by adding a section to read:

Section 517  Emergency care.

(a)  Qualified immunity.--In a medical professional liability

action arising out of the provision of emergency health care, no

physician or other health care provider shall be held liable for

any act or failure to act unless it is proven by clear and

convincing evidence that the physician or health care provider's

actions or omissions were grossly negligent.

(b)  Mitigating circumstances.--In a medical professional

liability action arising out of the provision of emergency

health care, the trier of the fact shall consider, together with

all other relevant matters:

(1)  Whether the person providing the care had the

patient's pertinent medical history, either from medical

records or from a reliable person, including information as

to preexisting medical conditions, allergies and medications

being taken.

(2)  The preexistence of a physician-patient relationship

or health care provider-patient relationship.

(3)  The circumstances constituting the need for

emergency health care.

(4)  The circumstances surrounding the delivery of the

emergency health care, including, if relevant, factors such

as where the care was provided, the demands on the emergency

department at the time and the promptness with which it was

necessary to make medical decisions and to order and provide

care.

(c)  Definitions.-- The following words and phrases when used

in this section shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"Emergency health care."  As follows:

(1)  Health care services that are provided to an

individual:

(i)  after the onset of a medical or traumatic

condition manifesting itself by acute symptoms of

sufficient severity, including severe pain, such that the

absence of immediate medial attention could reasonably be

expected to result in placing the individual's health in

serious jeopardy, serious impairment of bodily functions

or serious dysfunction of any bodily organ or part; or

(ii)  pursuant to a mandate under Federal or State

law, including the Emergency Medical Treatment and Labor

Act, 42 U.S.C. § 1395 (dd).

(2)  The term includes:

(i)  The described care in all settings, including

prehospital emergency care by a medical command

physician, emergency care in a hospital emergency

department or obstetrical unit or emergency care in a

surgical suite immediately following the evaluation or

treatment of a patient in a hospital emergency

department.

(ii)  All care or treatment, regardless of setting,

until the individual is stabilized.

(3)  The term does not include care or treatment that

occurs after the patient is stabilized and is capable of

receiving medical treatment as a nonemergency patient or care

that is unrelated to the original emergency or mandate.

"Emergency health care provider."  Any health care

provider providing emergency medical care, including

physicians in all specialties.

"Health care service."  Any act or treatment that is

performed or furnished, or that should have been performed or

furnished, by any health care provider for, to or on behalf

of a patient during a patient's medical care, treatment or

confinement. The term includes the direction to perform, not

perform, furnish or not furnish a health care service.

Section 2.  The addition of section 517 of the act shall

apply to all medical professional liability actions arising on

or after the effective date of this section.

Section 3.  This act shall take effect in 60 days.