PRINTER'S NO. 1297
No. 1129 Session of 1975
INTRODUCED BY SALVATORE, SHANE, LEHR, FRYER, VROON, WHITTLESEY,
WESTERBERG, HALVERSON, USTYNOSKI, KOWALYSHYN, WEIDNER, LEVI,
KUSSE AND McCLATCHY, APRIL 28, 1975
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 29, 1975
AN ACT
1 Relating to the promotion of the health, safety and welfare of
2 the people of the Commonwealth by defining medical
3 malpractice, creating a Medical Practitioners Peer Review
4 Board, setting standards for malpractice insurance policies,
5 establishing a period of limitations for malpractice suits,
6 establishing rules for discovery and establishing standards
7 for witnesses in malpractice cases.
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 ARTICLE I
11 General Provisions
12 Section 101. Short Title.--This act shall be known and may
13 be cited as the "Pennsylvania Medical Malpractice Reform Act."
14 Section 102. Findings and Policy.--It is hereby determined
15 and declared as a matter of legislative finding that--
16 (1) The health, safety and welfare of the people of the
17 Commonwealth are endangered by rising cost and threatened
18 unavailability of medical malpractice insurance coverage for
19 physicians, which if not corrected will result in a shortage of
20 medical practitioners, increased cost of health care, increased
1 reliance on the practice of defensive medicine resulting in
2 costly, potentially hazardous and unnecessary use of medical
3 procedures to protect practicing physicians against the
4 probability of malpractice suits; the reduction or elimination
5 of medical innovation; and the ultimate sterilization of the art
6 of medicine and surgery.
7 (2) Developing legal concepts are tending to corrupt the
8 doctrine of tort from recovery of damages for negligent or
9 incompetent professional medical practice to a system of
10 utilizing malpractice insurance as a social scheme for
11 compensating fortuitous and unfortunate medical results,
12 regardless of fault.
13 (3) Failure to provide an effective remedy for this fast
14 growing crises has the potential to cripple the practice of
15 medicine and disrupt or severely impair the system of health
16 care delivery to the public throughout the Commonwealth.
17 (4) Therefore, it is hereby declared to be the policy of the
18 Commonwealth of Pennsylvania to promote the health, safety and
19 welfare of its inhabitants by defining the legal
20 responsibilities and obligations of physicians, establishing
21 standards for malpractice insurance coverage and giving
22 recognition to the changes in society that have contributed to
23 or aggravated the problems of medical risk, liability exposure
24 and doctor-patient relationships in order to minimize
25 burdensome, unfair and discriminatory doctrines and
26 misconceptions in the current problems related to medical
27 practice.
28 Section 103. Definitions.--As used in this act, the
29 following terms shall have the following meanings ascribed to
30 them unless the context clearly determines otherwise:
19750H1129B1297 - 2 -
1 "Board" means the Medical Practitioners Peer Review Board
2 created by this act.
3 "Health care provider" means any person, partnership,
4 association, corporation, facility or institution duly licensed
5 or regulated by the Commonwealth of Pennsylvania to provide
6 health care or professional services as a physician, registered
7 nurse or hospital.
8 "Hospital" means any institution fully accredited by the
9 Joint Commission of Accreditation of Hospitals or regulated by
10 the Commonwealth of Pennsylvania to render health care.
11 "Malpractice" means any act, omission, breach or failure,
12 whether negligent, tortious, or a breach of a contractual or
13 legal duty, occurring in furnishing medical treatment resulting
14 in personal injury or death as a consequence of a physician's
15 departure from, or failure to conform, to the accepted standard
16 of medical practice among physicians with similar training and
17 experience in the same or similar medical community.
18 "Medical consent" means the consent actually given, or
19 implied, in any of the following circumstances:
20 (i) the physician has made a reasonable disclosure of the
21 nature and probable consequences of the suggested or recommended
22 medical treatment; and the patient, or legal representative,
23 agrees;
24 (ii) the physician has offered to make a reasonable
25 disclosure of the nature and probable risks and consequences of
26 the suggested or recommended medical treatment, and the patient
27 refuses or waives such disclosure; or
28 (iii) in the event of a medical emergency, the consent will
29 be implied if a reasonably prudent person would have consented
30 to the medical treatment.
19750H1129B1297 - 3 -
1 "Medical emergency" means any unexpected, unforeseen or
2 unavoidable situation involving the injury, disease, condition,
3 or illness of an individual and requiring medical treatment
4 which good medical practice requires to be undertaken despite
5 the inability of the patient to give consent, or the inability
6 to contact and obtain consent from the patient's legal
7 representative when, in the physician's judgment, an attempt to
8 secure such consent would result in delay of treatment which
9 would increase the risk to the individual's life or health. The
10 term "medical emergency" includes the discovery during the
11 course of medical treatment of unforeseen conditions under
12 circumstances in which it is impractical or unreasonable to
13 obtain actual consent.
14 "Medical treatment" means the performance of medicine and
15 surgery by any procedure, surgical operation, examination,
16 therapy, or use of medication or medical instruments intended to
17 treat or diagnose human ailments, disease, pain, injury,
18 deformity, or mental or physical condition by any means which
19 may include, but are not limited to, radiology, the
20 administration of drugs, blood transfusions, the use of
21 anesthetics, laboratory or other diagnostic procedures, or
22 reduction of fractures.
23 "Patient" means any individual who receives or is supposed to
24 receive pursuant to contract, express or implied, health care
25 from a health care provider.
26 "Permanent impairment" means the permanent loss of bodily
27 function of the individual as a whole or in part.
28 "Reasonable disclosure" means the explanation in accordance
29 with the accepted standard of medical practice among physicians
30 with similar training and experience in the same or similar
19750H1129B1297 - 4 -
1 medical community or the risks and hazards inherent in the
2 proposed medical treatment and of the reasonable alternatives to
3 the proposed medical treatment. If, applying such accepted
4 standard of medical practice, full disclosure may generate
5 harmful anxiety, apprehension or fear, to the detriment of the
6 patient, the withholding of such potentially harmful information
7 shall be deemed to be reasonable.
8 "Representative" means the spouse, parent, guardian, trustee,
9 attorney or legal agent of the patient.
10 ARTICLE II
11 Peer Review Board
12 Section 201. Pennsylvania Medical Practice Peer Review
13 Board.--There is hereby created a board to be known as the
14 Pennsylvania Medical Practitioners Peer Review Board which shall
15 consist of nine members, who shall be appointed by the Governor
16 from recommendations furnished by the Pennsylvania Medical
17 Society and Pennsylvania Osteopathic Society. Two of the members
18 shall be attorneys admitted to practice by the Supreme Court of
19 Pennsylvania, one shall be a licensed osteopathic physician and
20 two shall be licensed registered nurses. The remaining members
21 shall be licensed medical physicians. The members shall, by a
22 majority vote, elect one of their number the chairman annually.
23 Each member of the board, except those first appointed, shall
24 hold office for four years and until his successor is appointed:
25 Provided, however, That on or after the effective date of this
26 act the Governor shall appoint three members to a term of one
27 year; and three members for a term of two years and three
28 members to a term of three years: Provided, further, That all
29 future appointments to fill expired terms shall be for a period
30 of four years. In case of a vacancy in the membership of said
19750H1129B1297 - 5 -
1 board, the Governor shall appoint for the unexpired term in the
2 same manner as for original appointments.
3 Any member of said board may be removed by the Governor at
4 any time for incompetency, neglect of duty, misconduct in office
5 or other good cause to be stated in writing in the order of
6 removal.
7 Members of the board shall be compensated at the rate of $125
8 per diem for each day the board or any authorized committee
9 thereof shall meet, not to exceed $35,000 per annum plus
10 reimbursement for necessary and reasonable expenses incurred in
11 and about the business of the board. All such expenses shall be
12 approved by the chairman of the board.
13 Section 202. Administration.--(a) The board shall appoint a
14 secretary and shall have the power to remove the secretary. The
15 secretary shall be responsible to the board for all
16 administrative duties assigned.
17 (b) The board, subject to the approval of the Governor and
18 the Commonwealth Executive Board, may employ and fix the
19 compensation of such clerical and other assistants as it may
20 deem necessary. All such employees shall be subject to the act
21 of August 5, 1941 (P.L.752, No.286), known as the "Civil Service
22 Act."
23 (c) The board shall be provided with adequate offices within
24 the Capitol Complex in the City of Harrisburg in which the
25 records shall be kept, its official business be transacted; and
26 hearings held; it shall also be provided with necessary
27 furniture, stationery and other supplies.
28 Section 203. Expedited Proceedings.--To the end that all
29 proceedings before the board shall be conducted with the least
30 possible expense and with the greatest practical dispatch,
19750H1129B1297 - 6 -
1 notice of all hearings and proceedings before the board, unless
2 otherwise directed herein, may be given by registered mail, with
3 return receipt requested, and proof of the mailing of any such
4 notice shall be conclusive evidence of the service thereof.
5 Section 204. Powers and Duties.--The board shall have the
6 power and it shall be its duty to:
7 (i) receive and investigate complaints alleging incompetency
8 or malpractice by medical practitioners in the Commonwealth;
9 (ii) refer any evidence of incompetency or medical
10 malpractice to the State Board of Medical Education and
11 Licensure for consideration and action in accordance with the
12 disciplinary authority granted by the act of July 20, 1974
13 (No.190), known as the "Medical Practices Act of 1974";
14 (iii) assist the courts of this Commonwealth in evaluating
15 evidence and testimony presented on behalf of plaintiffs and
16 defendants in medical malpractice suits, including, but not
17 limited to, recommending expert medical witnesses;
18 (iv) assist malpractice insurers or arbitration boards in
19 evaluating evidence relating to alleged malpractice and making
20 recommendations thereto: Provided, however, That the board may
21 assess and collect a charge from said insurers and arbitration
22 boards, sufficient to cover the costs incurred in rendering such
23 service;
24 (v) cooperate and assist the General Assembly, the
25 Executive, the Judiciary, and such other public and private
26 agencies as is necessary to promote the public health, safety
27 and welfare in the practice of medicine;
28 (vi) make, on or before December 1 of each year, a report to
29 the Governor on its work during the preceding fiscal year, in
30 such form as the board may determine with the approval of the
19750H1129B1297 - 7 -
1 Governor;
2 (vii) adopt and use an official seal, by which the board
3 shall authenticate its proceedings, and of which seal the courts
4 shall take judicial notice; and
5 (viii) adopt such rules as may be necessary to carry into
6 effect the provisions of this act, and to prescribe the means,
7 methods and practices necessary to effectuate such provisions:
8 Provided, however, That the mention of the foregoing powers and
9 duties shall not be construed as limiting the board with regard
10 to any other powers and duties provided in this act or which may
11 hereafter be conferred on said board.
12 Section 205. Board Forms.--The board shall prepare and cause
13 to be printed, and upon request furnish free of charge, such
14 blank forms and literature as it shall deem requisite to
15 facilitate or promote the efficient administration of this act.
16 Any report, deposition or recorded testimony of attending or
17 examining physicians shall be in the private records of the
18 board, which shall be open to the inspection of the parties and
19 their legal representatives, but not to the general public
20 unless, in the opinion of the board, the public interest shall
21 so require.
22 Section 206. Board Appropriation Derived From Health Care
23 Provider Assessments.--Appropriations for the operating of the
24 board shall be derived by assessing a final sum against every
25 health care provider licensed or regulated by the Commonwealth
26 of Pennsylvania to provide health care or professional services.
27 Assessments for the operating costs of the board shall not
28 exceed the following limitations:
29 (i) Physicians not in excess of $50 per annum.
30 (ii) Registered nurses not in excess of $25 per annum.
19750H1129B1297 - 8 -
1 (iii) Hospitals not in excess of $200 per 100 bed unit per
2 annum.
3 Section 207. Board Budget.--(a) For the first year of
4 operation, the board budget shall be estimated by the board,
5 said estimate not to exceed the sum of $500,000 to be derived
6 from assessments.
7 (b) Before July 1 of each year, the board shall estimate its
8 total expenditures in the administration of this act for the
9 fiscal year beginning that date. Such estimate shall be
10 submitted to the Governor, and to the Appropriations Committees
11 of the House and Senate through their respective chairmen, for
12 their respective approvals of such estimate in the amount
13 submitted or such lesser amount as each of them may determine:
14 Provided, That if the Governor or either committee, through its
15 chairman, shall not notify the board in writing of his or its
16 action within 30 days after such submission, the estimate as
17 submitted shall be deemed approved by him or by such committee,
18 as the case may be. The least of the amounts so approved by the
19 three approving authorities shall be the final estimate; and
20 approval of such least amount shall constitute compliance with
21 section 604 of the act of April 9, 1929 (P.L.177, No.175), known
22 as "The Administrative Code of 1929." The board shall subtract
23 from the final estimate (1) the estimated fees to be collected
24 pursuant to section 206 during such fiscal year and (2) the
25 estimated balance of the appropriation, from the prior year, to
26 be carried over into such fiscal year from the preceding one.
27 The remainder so determined, herein called the total assessment,
28 shall be allocated to, and paid by, such health care providers
29 in the manner hereafter prescribed. The board or its designated
30 representatives shall, when requested, appear before the Senate
19750H1129B1297 - 9 -
1 and House Appropriations Committees.
2 (c) The board shall give notice by registered or certified
3 mail to each health care provider of the amount lawfully charged
4 against it under the provisions of this section, which amount
5 shall be paid by the health care provider within 30 days of
6 receipt of such notice, unless the board specifies on the
7 notices sent to all health care providers, an installment plan
8 of payment, in which case each health care provider shall pay
9 each installment on or before the date specified therefor by the
10 board. Within 15 days after receipt of such notice, the party
11 against which such assessment has been made may file with the
12 board objections setting out in detail the grounds upon which
13 the objector regards such assessment to be excessive, erroneous,
14 unlawful or invalid. The board, after notice to the objector,
15 shall hold a hearing upon such objections. After such hearing,
16 the commission shall record upon its minutes its findings on the
17 objections and shall transmit to the objector, by registered or
18 certified mail, notice of the amount, if any, charged against it
19 in accordance with such findings, which amount or any
20 installment thereof then due, shall be paid by the objector
21 within ten days after receipt of notice of the findings of the
22 board with respect to such objections.
23 Section 208. Immunity from Liability.--(a) Notwithstanding
24 any other provision of law, no person who in good faith provides
25 any information to the board or the State Board of Medical
26 Education and Licensure shall be held, by reason of having
27 provided such information, to have violated any criminal law, or
28 to be civilly liable under any law, unless
29 (1) such information is unrelated to the scope of authority
30 and interest of the board or State Board of Medical Education
19750H1129B1297 - 10 -
1 and Licensure; or
2 (2) such information is false and the person providing such
3 information knew, or had reasonable cause to believe, that such
4 information was false.
5 (b) No individual who, as a member or employee of the board
6 or the State Board of Medical Education and Licensure, shall be
7 held, by reason of the good faith performance by him of any
8 duty, function or activity authorized or required by reason of
9 his employment, to have violated any criminal law or to be
10 civilly liable under any law provided he exercised due care.
11 ARTICLE III
12 Disciplinary Proceedings
13 Section 301. Investigations.--The State Board of Medical
14 Education and Licensure shall employ such qualified
15 investigators and attorneys as are necessary to fully implement
16 its authority to revoke, suspend, limit or otherwise regulate
17 the licenses of physicians; issue reprimands, fines, require
18 refresher educational courses, or require licensees to submit to
19 medical treatment.
20 Section 302. Hearings.--The State Board of Medical Education
21 and Licensure shall appoint, with the approval of the Governor,
22 such hearing examiners as shall be necessary to conduct hearings
23 in accordance with the disciplinary authority granted by the act
24 of July 20, 1974 (No.190) known as the "Medical Practice Act of
25 1974." Such hearing examiners shall have the power to issue
26 subpoenas requiring the attendance and testimony of individuals
27 or the production of, pertinent books, records, documents and
28 papers by persons whom they believe to have information relevant
29 to any matter pending before the examiner. Such examiner shall
30 also have the power to administer oaths.
19750H1129B1297 - 11 -
1 Section 303. Hearing Examiners' Decisions.--The hearing
2 examiner shall hear evidence submitted and arguments of counsel,
3 if any, with reasonable dispatch, and shall promptly record his
4 decision, supported by findings of fact, and a copy thereof
5 shall immediately be sent to the State Board of Medical
6 Education and Licensure and to counsel of record, or the
7 parties, if not represented.
8 Section 304. Evidence.--In all hearings proof may be made by
9 oral testimony or by deposition or interrogatories. Such
10 depositions shall be taken in the manner and upon the notice
11 required by the rules for taking depositions in civil cases and
12 may be introduced into evidence without regard to the
13 availability of the witness to testify at the time of trial. Any
14 witness, however, may be subpoenaed by any party to the
15 controversy to testify pursuant to the rules appropriate to
16 civil actions and shall be considered to be the witness of the
17 party who offered the deposition.
18 Section 305. Review of the State Board of Medical Education
19 and Licensure.--(a) If application for review is made to the
20 State Board of Medical Education and Licensure within 20 days
21 from the date of any decision made as a result of a hearing held
22 by a hearing examiner, the State Board of Medical Education and
23 Licensure shall review the evidence, and if deemed advisable by
24 the board, hear argument and additional evidence.
25 (b) As soon as practicable, the State Board of Medical
26 Education and Licensure shall make a decision and shall file the
27 same with its finding of the facts on which it is based and send
28 a copy thereof to each of the parties in dispute.
29 Section 306. Appeals.--Decision by the State Board of
30 Medical Education and Licensure shall be conclusive and binding
19750H1129B1297 - 12 -
1 as to all questions of fact, but any medical practitioner may,
2 within 30 days from the date of such decision appeal to the
3 Commonwealth Court of Pennsylvania alleging certain errors of
4 law under the same terms and conditions as cover appeals in
5 actions involving State agencies.
6 Section 307. Fees.--All fees, charges and fines collected
7 under the provisions of the act of July 20, 1974 (No.190), known
8 as the "Medical Practices Act of 1974" are hereby specifically
9 appropriated for the exclusive use by the State Board of Medical
10 Education and Licensure in carrying out the provisions of that
11 act.
12 Section 308. Budget.--Before July 1 of each year, the State
13 Board of Medical Education and Licensure shall estimate its
14 total expenditures in the administration of this act for the
15 fiscal year beginning that date. Such estimate shall be
16 submitted to the Governor, and to the Appropriations Committees
17 of the House and Senate through their respective chairmen, for
18 their respective approvals of such estimate in the amount
19 submitted or such lesser amount as each of them may determine:
20 Provided, That if the Governor or either committee, through its
21 chairman, shall not notify the State in writing of his or its
22 action within 30 days after such submission, the estimate as
23 submitted shall be deemed approved by him or by such committee,
24 as the case may be. The least of the amounts so approved by the
25 three approving authorities shall be the final estimate; and
26 approval of such least amount shall constitute compliance with
27 section 604 of the act of April 9, 1929 (P.L.177, No.175), known
28 as "The Administrative Code of 1929." The State Board of Medical
29 Education and Licensure shall subtract from the final estimate
30 (1) the estimated fees to be collected pursuant to the act of
19750H1129B1297 - 13 -
1 July 20, 1974 (No.190), known as the "Medical Practices Act of
2 1974" during such fiscal year and (2) the estimated balance of
3 the appropriation, of the previous year, not to lapse but to be
4 carried over into such fiscal year from the preceding one. The
5 remainder so determined, herein called the total assessment,
6 shall be the amount of the appropriation due from the
7 Commonwealth.
8 ARTICLE IV
9 Medical Consent-Patient-Health Care
10 Provider Relationship-Medical Testimony
11 Section 401. Medical Consent Necessary.--No medical
12 treatment shall be permitted without the patient's medical
13 consent.
14 Section 402. Written Consent.--A consent to medical
15 treatment which discloses in general terms the treatment or
16 course of treatment in connection with which it is given, or
17 which waives such disclosure, and which is duly evidenced in
18 writing and signed by the patient or legal representative in
19 good faith authorized to consent, shall be conclusively presumed
20 to be a valid medical consent in the absence of fraudulent
21 misrepresentations of material facts.
22 Section 403. Burden of Proof-Medical Consent.--In any action
23 before the board or the State Board of Medical Education and
24 Licensure or in any court in the Commonwealth against a
25 physician for medical treatment performed by the physician
26 without medical consent, the plaintiff shall have the burden to
27 prove by a preponderance of the evidence the absence of medical
28 consent, the patient's lack of knowledge of the risks involved,
29 the adverse effects upon the patient which resulted from such
30 lack of medical consent, and that a reasonable person would not
19750H1129B1297 - 14 -
1 have consented to the medical treatment if that person had been
2 aware of the risk of those adverse effects.
3 Section 404. Patient-health care provider relationship.--The
4 patient-health care provider relationship is conclusively
5 presumed to be based upon a contract, either express or implied,
6 and every such contractual arrangement between those parties
7 shall therefore be conclusively presumed to contain the full
8 provisions of this act, and the rights and remedies provided
9 herein, shall, from and after the effective date hereof.
10 Section 405. Prior Agreements Unaffected.--Every express
11 written contract between a patient and health care provider in
12 existence on the effective date of this act containing
13 provisions inconsistent with the terms and provisions of this
14 act, shall remain unimpaired and shall be binding and effective
15 as to all parties thereto as to any inconsistent provision,
16 unless and until said contract expires or is rescinded, by law
17 or the mutual agreement of the parties thereto, following which
18 the terms and provisions of this act shall become binding and
19 effective as to any such parties.
20 Section 406. Agreements Concerning Results.--No action
21 before the board, the State Board of Medical Education and
22 Licensure or in any court shall be brought against any physician
23 upon any guarantee, warranty, promise, agreement, contract, or
24 assurance as to the results or the safety of any medical
25 treatment unless the guarantee, warranty, promise, agreement
26 contract, or assurance upon which such action shall be brought,
27 or some memorandum or note thereof, shall be in writing, and
28 signed by the physician to be charged therewith, or some other
29 person by such physician authorized.
30 Section 407. Expert Medical Testimony.--In any action before
19750H1129B1297 - 15 -
1 the board or in any court in the Commonwealth against a
2 physician for personal injury or death for any act, or omission
3 or failure by the physician in the practice of medicine and
4 surgery giving rise to the cause of action, no expert medical
5 testimony shall be introduced to establish that the physician
6 negligently carried out professional duties and departed from
7 the accepted standard of medical practice among physicians with
8 similar training and experience in the same or similar medical
9 community, except by the testimony of a witness who is a
10 specialist in the same speciality involved in the suit or who
11 has demonstrated familiarity with the medical or surgical
12 technique involved in the suit.
13 Section 408. Proof of Negligence.--In any action before any
14 court in the Commonwealth against a physician for personal
15 injury or death for any act, or omission or failure by the
16 physician in the practice of medicine and surgery giving rise to
17 the cause of action, there shall be no presumption or inference
18 of negligence or malpractice on the part of the physician; and
19 the jury shall be instructed that the plaintiff has the burden
20 of proving, by a preponderance of the competent evidence, that
21 the plaintiff sustained the injury as a result of the negligence
22 of the physician, and that the injury alone does not raise
23 either a presumption or inference of negligence.
24 Section 409. Counterclaims.--In any action before any court
25 in the Commonwealth for damages for personal injury or death,
26 whether based on tort or contract law, or otherwise, a
27 counterclaim for damages for abuse of process in filing such
28 action may be filed and litigated in the same action provided
29 that the counterclaim is based upon substantial allegations of
30 material facts.
19750H1129B1297 - 16 -
1 Section 410. Limitation of Actions.--Notwithstanding any
2 other provision of law, no action before any court in the
3 Commonwealth against a physician for malpractice, whether based
4 in assumpsit or trespass, may be commenced more than two years
5 after the act or omission or failure giving rise to the cause of
6 action: Provided, That if the cause of action is not discovered
7 and could not reasonably have been discovered within such
8 period, then the action may be commenced within one year from
9 the date of such discovery or the date of discovery of the facts
10 which would reasonably lead to such discovery, whichever is
11 earlier: Provided, further, That in no event may the action be
12 commenced more than five years after such act.
13 ARTICLE V
14 Discovery of Insurance; Insurance Policy Standards
15 and Availability of Insurance
16 Section 501. Discovery of Insurance Coverage.--In any action
17 in any court in the Commonwealth against a physician for
18 personal injury or death resulting from malpractice by the
19 physician giving rise to the cause of action, neither the fact
20 that the physician is insured by a policy of liability insurance
21 nor the amount of the liability policy limits shall be
22 discoverable by oral examination, written interrogatories,
23 inspection, written request for admissions, subpoena, or any
24 other form of pretrial deposition or discovery.
25 Section 502. Policies of Insurance.--No insurer shall enter
26 into or issue any policy of insurance purporting to provide
27 medical malpractice liability insurance until its policy form
28 and rate shall have been submitted and approved by the Insurance
29 Commissioner.
30 Section 503. Filing as Acceptance.--The filing of a policy
19750H1129B1297 - 17 -
1 form by any insurer with the Insurance Commissioner for approval
2 shall constitute, on the part of such insurer, a conclusive and
3 unqualified acceptance of each and all of the provisions of this
4 act, and an agreement by it to be bound thereby as to any policy
5 issued by it.
6 Section 504. Policy Provisions; Standards.--The Insurance
7 Commissioner shall cause to be published a guideline of standard
8 policy provisions applicable to all policies of medical
9 malpractice liability insurance to be written covering health
10 care providers practicing in the Commonwealth. Every policy
11 issued by an insurer shall be deemed to include all such
12 provisions as promulgated by the Insurance Commissioner.
13 Section 505. Certain Policies to be Disapproved.--(a) The
14 Insurance Commissioner shall not approve a policy written on a
15 "claims made" basis by any insurer doing business in this
16 Commonwealth unless such insurer shall guarantee to the
17 commissioner the continued availability of suitable liability
18 protection for health care providers subsequent to the
19 discontinuance of medical practice or treatment by the health
20 care provider or the sooner termination of the insurance policy
21 by the insurer or the health care provider for so long as there
22 may be a reasonable anticipation of the probability of a claim
23 for malpractice being discovered but not reported. A "claims
24 made" basis of insurance coverage would be any policy of
25 liability insurance that would limit or restrict the liability
26 of the company under the policy to only those claims made or
27 reported during the currency of the policy period and would
28 exclude coverage for claims reported subsequent to the policy
29 termination even when such claims resulted from occurrences
30 during the currency of the policy period.
19750H1129B1297 - 18 -
1 (b) No policy of medical malpractice insurance shall be
2 written that would reserve to the insured health care
3 practitioner the exclusive right to approve or deny any out of
4 court settlement on his behalf by any insurer of a policy
5 covering any claim alleging malpractice; however, an insurer may
6 provide that any such right to approve or deny any such
7 settlement may be subject to the recommendation of the board
8 after a full investigation of all facts undertaken by the board
9 upon petition of the board by the insurer or insured health care
10 provider.
11 Section 506. Availability of Insurance.--(a) The
12 commissioner shall establish and implement or approve and
13 supervise a plan assuring that medical malpractice liability
14 insurance for any health care provider will be conveniently and
15 expeditiously available, subject only to payment or provisions
16 for payment of the premium to each health care provider who
17 cannot conveniently obtain insurance through ordinary methods at
18 rates not in excess of those applicable to similarly situated
19 health care providers under the plan. The plan may provide
20 reasonable means for the transfer of health care providers
21 insured thereunder into the ordinary insurance market, at the
22 same or lower rates pursuant to regulations established by the
23 Insurance Commissioner. The plan may be implemented by
24 assignment of applicants among insurers, pooling, any joint
25 insuring and reinsuring arrangement or any other method, that
26 results in all applicants being conveniently afforded access to
27 the insurance coverages on reasonable and not unfairly
28 discriminatory terms.
29 (b) All insurers writing medical malpractice insurance in
30 this Commonwealth or any other jurisdiction shall participate in
19750H1129B1297 - 19 -
1 the plan. The plan shall provide for equitable apportionment,
2 among all participating insurers writing such insurance coverage
3 of the financial burdens of insurance provided to applicants
4 under the plan and the costs of operation of the plan.
5 (c) Subject to the supervision and approval of the
6 commissioner, insurers may consult and agree with each other and
7 with other appropriate persons as to the organization,
8 administration and operation of the plan and as to rates and
9 rate modifications for insurance coverages provided under the
10 plan. Rates and rate modifications adopted or changed for
11 insurance coverages provided under the plan shall be approved by
12 the commissioner in accordance with the act of June 11, 1947
13 (P.L.538, No.246), known as the "Casualty and Surety Rate
14 Regulatory Act."
15 (d) To carry out the objectives of this section, the
16 commissioner may adopt rules, make orders, enter into agreements
17 with other governmental or private entities and individuals and
18 form and operate or authorize the formation and operation of
19 bureaus and other legal entities.
20 (e) The plan must also assure that there is available
21 through the private sector or otherwise to all applicants
22 adequate premium financing or provision for the installment
23 payment of premiums subject to customary terms and conditions.
24 ARTICLE VI
25 Miscellaneous Provisions
26 Section 601. Certain Petitions Automatic.--All judges,
27 immediately after a verdict is rendered in a medical malpractice
28 case, shall consider as proper business of the court and on the
29 courts' own action, petitions for remittitur, additive or
30 judgment non-obstante verdicts. Counsel for both sides shall
19750H1129B1297 - 20 -
1 present arguments on the respective petitions.
2 Section 602. Attorney's Fees.--Attorney's fees in medical
3 malpractice cases shall not exceed 25% of any settlement or
4 award unless first approved by the court.
5 Section 603. Substantive and Procedural Laws and Rules.--
6 Except as herein provided, the board and the State Board of
7 Medical Education and Licensure will be bound by the common and
8 statutory law; the act of June 4, 1945 (P.L.1388, No.442), known
9 as the "Administrative Agency Law," and by the Pennsylvania
10 Rules of Civil Procedure; but will conduct such hearings and
11 make such investigations in reference to the questions at issue
12 in such manner as in its judgment are best adapted to ascertain
13 and determine the substantial rights of the parties
14 expeditiously and accurately and to carry out justly the spirit
15 of this act.
16 Section 604. Confidentiality.--All proceedings and all
17 records, books, notes, depositions and testimony of any
18 proceeding before the board or the State Board of Medical
19 Education and Licensure shall be kept in the strictest
20 confidence and not open to the public as a whole: Provided,
21 however, That the State Board of Medical Education and Licensure
22 shall have the authority to make public such records or
23 decisions which are necessary for the effective implementation
24 of this act.
25 Section 605. Fines and Penalties.--(a) No health care
26 provider shall provide any health care or professional services
27 until such assessments as are levied by the board are paid and a
28 receipt showing the same is in the possession of the health care
29 provider.
30 (b) Any health care provider licensed by the Commonwealth or
19750H1129B1297 - 21 -
1 operating under a certificate of authority issued by the
2 Commonwealth who violates the provisions of subsection (a) shall
3 be assessed a fine of not less than $100 nor more than $1,000
4 per day for each day of practice without the necessary receipt
5 or may be subject to a suspension of the license or certificate
6 of authority, or both.
7 Section 606. Repealer.--Any act or parts of acts
8 inconsistent with the provisions of this act are repealed to the
9 extent of the inconsistency.
10 Section 607. Effective Date.--This act shall take effect
11 January 1, 1976 or six months after final enactment whichever is
12 later.
D9L31RZ/19750H1129B1297 - 22 -