PRIOR PRINTER'S NOS. 2317, 2788, 3202, PRINTER'S NO. 3326
3320
No. 1802 Session of 2001
INTRODUCED BY MICOZZIE, DeLUCA, ADOLPH, BEBKO-JONES, BUXTON,
FICHTER, GANNON, GODSHALL, LAWLESS, McGILL, MELIO, PIPPY,
SATHER, SCHRODER, WASHINGTON, ZUG, ALLEN, ARGALL, M. BAKER,
BARD, BROWNE, BUTKOVITZ, CAPPELLI, CIVERA, L. I. COHEN,
COLAFELLA, COLEMAN, CORRIGAN, COY, DALEY, DALLY, FAIRCHILD,
FEESE, FRANKEL, GABIG, GORDNER, HARHAI, HASAY, HERMAN, HESS,
HORSEY, JAMES, LAUGHLIN, LEH, LESCOVITZ, MACKERETH, MAHER,
MARKOSEK, McCALL, McILHATTAN, McILHINNEY, S. MILLER,
READSHAW, ROBINSON, ROHRER, RUBLEY, SAINATO, SAYLOR, SCHULER,
SEMMEL, SHANER, SOLOBAY, STEIL, STERN, T. STEVENSON,
E. Z. TAYLOR, THOMAS, TIGUE, TRICH, WATSON, J. WILLIAMS,
WILT, WOGAN, M. WRIGHT, YOUNGBLOOD, FLICK, C. WILLIAMS,
BENNINGHOFF, WOJNAROSKI, GEIST, ARMSTRONG, GEORGE, LEWIS,
BASTIAN, ROBERTS, TURZAI AND J. BAKER, JUNE 19, 2001
AMENDMENTS TO SENATE AMENDMENTS, HOUSE OF REPRESENTATIVES,
FEBRUARY 13, 2002
AN ACT
1 Reforming the law on medical professional liability; providing
2 for patient safety and reporting; establishing the Patient
3 Safety Authority and the Patient Safety Trust Fund;
4 abrogating regulations; providing for medical professional
5 liability informed consent, damages, expert qualifications,
6 limitations of actions and medical records; establishing the
7 Interbranch Commission on Venue; providing for medical
8 professional liability insurance; establishing the Medical
9 Care Availability and Reduction of Error Fund; providing for
10 medical professional liability claims; establishing the Joint
11 Underwriting Association; regulating medical professional
12 liability insurance; providing for medical licensure
13 regulation; PROVIDING FOR TORT REFORM; providing for <--
14 administration; imposing penalties; and making repeals.
15 TABLE OF CONTENTS
16 Chapter 1. Preliminary Provisions
17 Section 101. Short title.
1 Section 102. Declaration of policy.
2 Section 103. Definitions.
3 Section 104. Liability of nonqualifying health care providers.
4 Section 105. Provider not a warrantor or guarantor.
5 Chapter 3. Patient Safety
6 Section 301. Scope.
7 Section 302. Definitions.
8 Section 303. Establishment of Patient Safety Authority.
9 Section 304. Powers and duties.
10 Section 305. Patient Safety Trust Fund.
11 Section 306. Department responsibilities.
12 Section 307. Patient safety plans.
13 Section 308. Reporting and notification.
14 Section 309. Patient safety officer.
15 Section 310. Patient safety committee.
16 Section 311. Confidentiality and compliance.
17 Section 312. Patient safety discount.
18 Section 313. Medical facility reports and notifications.
19 Section 314. Existing regulations.
20 Chapter 5. Medical Professional Liability
21 Section 501. Scope.
22 Section 502. Declaration of policy.
23 Section 503. Definitions.
24 Section 504. Informed consent.
25 Section 505. Punitive damages.
26 Section 506. Affidavit of noninvolvement.
27 Section 507. Advance payments.
28 Section 508. Collateral sources.
29 Section 509. Payment of damages.
30 Section 510. Reduction to present value.
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1 Section 511. Preservation and accuracy of medical records.
2 Section 512. Expert qualifications.
3 Section 513. Statute of limitations.
4 Section 514. Interbranch Commission on Venue.
5 Chapter 7. Insurance
6 Subchapter A. Preliminary Provisions
7 Section 701. Scope.
8 Section 702. Definitions.
9 Subchapter B. Fund
10 Section 711. Medical professional liability insurance.
11 Section 712. Medical Care Availability and Reduction of Error
12 Fund.
13 Section 713. Administration of fund.
14 Section 714. Medical professional liability claims.
15 Section 715. Extended claims.
16 Section 716. Podiatrist liability.
17 Subchapter C. Joint Underwriting Association
18 Section 731. Joint underwriting association.
19 Section 732. Medical professional liability insurance.
20 Section 733. Deficit.
21 Subchapter D. Regulation of Medical Professional
22 Liability Insurance
23 Section 741. Approval.
24 Section 742. Approval of policies on "claims made" basis.
25 Section 743. Reports to commissioner and claims information.
26 Section 744. Professional corporations, professional
27 associations and partnerships.
28 Section 745. Actuarial data.
29 Section 746. Mandatory reporting.
30 Section 747. Cancellation of insurance policy.
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1 Section 748. Regulations.
2 Chapter 9. Administrative Provisions
3 Section 901. Scope.
4 Section 902. Definitions.
5 Section 903. Reporting.
6 Section 904. Commencement of investigation and action.
7 Section 905. Action on negligence.
8 Section 906. Confidentiality agreements.
9 Section 907. Confidentiality of records of licensure boards.
10 Section 908. Licensure board-imposed civil penalty.
11 Section 909. Licensure board report.
12 Section 910. Continuing medical education.
13 CHAPTER 11. TORT REFORM <--
14 SECTION 1101. DEFINITIONS.
15 SECTION 1102. APPLICABILITY.
16 SECTION 1103. JOINT AND SEVERAL LIABILITY.
17 Chapter 51. Miscellaneous Provisions
18 Section 5101. Oversight.
19 Section 5102. Prior fund.
20 Section 5103. Notice.
21 Section 5104. Repeals.
22 Section 5105. Applicability.
23 Section 5106. Continuation.
24 Section 5107. Effective date.
25 The General Assembly of the Commonwealth of Pennsylvania
26 hereby enacts as follows:
27 CHAPTER 1
28 PRELIMINARY PROVISIONS
29 Section 101. Short title.
30 This act shall be known and may be cited as the Medical Care
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1 Availability and Reduction of Error (Mcare) Act.
2 Section 102. Declaration of policy.
3 The General Assembly finds and declares as follows:
4 (1) It is the purpose of this act to ensure that medical
5 care is available in this Commonwealth through a
6 comprehensive and high-quality health care system.
7 (2) Access to a full spectrum of hospital services and
8 to highly trained physicians in all specialties must be
9 available across this Commonwealth.
10 (3) To maintain this system, medical professional
11 liability insurance has to be obtainable at an affordable and
12 reasonable cost in every geographic region of this
13 Commonwealth.
14 (4) A person who has sustained injury or death as a
15 result of medical negligence by a health care provider must
16 be afforded a prompt determination and fair compensation.
17 (5) Every effort must be made to reduce and eliminate
18 medical errors by identifying problems and implementing
19 solutions that promote patient safety.
20 (6) Recognition and furtherance of all of these elements
21 is essential to the public health, safety and welfare of all
22 the citizens of Pennsylvania.
23 Section 103. Definitions.
24 The following words and phrases when used in this act shall
25 have the meanings given to them in this section unless the
26 context clearly indicates otherwise:
27 "Birth center." An entity licensed as a birth center under
28 the act of July 19, 1979 (P.L.130, No.48), known as the Health
29 Care Facilities Act.
30 "Claimant." A patient, including a patient's immediate
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1 family, guardian, personal representative or estate.
2 "Commissioner." The Insurance Commissioner of the
3 Commonwealth.
4 "Guardian." A fiduciary who has the care and management of
5 the estate or person of a minor or an incapacitated person.
6 "Health care provider." A primary health care center or a
7 person, including a corporation, university or other educational
8 institution licensed or approved by the Commonwealth to provide
9 health care or professional medical services as a physician, a
10 certified nurse midwife, a podiatrist, hospital, nursing home,
11 birth center, and except as to section 711(a), an officer,
12 employee or agent of any of them acting in the course and scope
13 of employment.
14 "Hospital." An entity licensed as a hospital under the act
15 of June 13, 1967 (P.L.31, No.21), known as the Public Welfare
16 Code, or the act of July 19, 1979 (P.L.130, No.48), known as the
17 Health Care Facilities Act.
18 "Immediate family." A parent, a spouse, a child or an adult
19 sibling residing in the same household.
20 "Nursing home." An entity licensed as a nursing home under
21 the act of July 19, 1979 (P.L.130, No.48), known as the Health
22 Care Facilities Act.
23 "Patient." A natural person who receives or should have
24 received health care from a health care provider.
25 "Personal representative." An executor or administrator of a
26 patient's estate.
27 "Primary health center." A community-based nonprofit
28 corporation meeting standards prescribed by the Department of
29 Health, which provides preventive, diagnostic, therapeutic and
30 basic emergency health care by licensed practitioners who are
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1 employees of the corporation or under contract to the
2 corporation.
3 Section 104. Liability of nonqualifying health care providers.
4 Any person rendering services normally rendered by a health
5 care provider who fails to qualify as a health care provider
6 under this act is subject to liability under the law without
7 regard to the provisions of this act.
8 Section 105. Provider not a warrantor or guarantor.
9 In the absence of a special contract in writing, a health
10 care provider is neither a warrantor nor a guarantor of a cure.
11 CHAPTER 3
12 PATIENT SAFETY
13 Section 301. Scope.
14 This chapter relates to the reduction of medical errors for
15 the purpose of ensuring patient safety.
16 Section 302. Definitions.
17 The following words and phrases when used in this chapter
18 shall have the meanings given to them in this section unless the
19 context clearly indicates otherwise:
20 "Ambulatory surgical facility." An entity defined as an
21 ambulatory surgical facility under the act of July 19, 1979
22 (P.L.130, No.48), known as the Health Care Facilities Act.
23 "Authority." The Patient Safety Authority established in
24 section 303.
25 "Board." The board of directors of the Patient Safety
26 Authority.
27 "Department." The Department of Health of the Commonwealth.
28 "Fund." The Patient Safety Trust Fund established in section
29 305.
30 "Health care worker." An employee, independent contractor,
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1 licensee or other individual authorized to provide services in a
2 medical facility.
3 "Incident." An event, occurrence or situation involving the
4 clinical care of a patient in a medical facility which could
5 have injured the patient but did not either cause an
6 unanticipated injury or require the delivery of additional
7 health care services to the patient. The term does not include a
8 serious event.
9 "Infrastructure." Structures related to the physical plant
10 and service delivery systems necessary for the provision of
11 health care services in a medical facility.
12 "Infrastructure failure." An undesirable or unintended
13 event, occurrence or situation involving the infrastructure of a
14 medical facility or the discontinuation or significant
15 disruption of a service which could seriously compromise patient
16 safety.
17 "Licensee." An individual who is all of the following:
18 (1) Licensed or certified by the department or the
19 Department of State to provide professional services in this
20 Commonwealth.
21 (2) Employed by or authorized to provide professional
22 services in a medical facility.
23 "Medical facility." An ambulatory surgical facility, birth
24 center or hospital.
25 "Patient safety officer." An individual designated by a
26 medical facility under section 309.
27 "Serious event." An event, occurrence or situation involving
28 the clinical care of a patient in a medical facility that
29 results in death or compromises patient safety and results in an
30 unanticipated injury requiring the delivery of additional health
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1 care services to the patient. The term does not include an
2 incident.
3 Section 303. Establishment of Patient Safety Authority.
4 (a) Establishment.--There is established a body corporate
5 and politic to be known as the Patient Safety Authority. The
6 powers and duties of the authority shall be vested in and
7 exercised by a board of directors.
8 (b) Composition.--The board of the authority shall consist
9 of 11 members, composed and appointed in accordance with the
10 following:
11 (1) The Physician General or a physician appointed by
12 the Governor if there is no appointed Physician General.
13 (2) Four residents of this Commonwealth, one of whom
14 shall be appointed by the President pro tempore of the
15 Senate, one of whom shall be appointed by the Minority Leader
16 of the Senate, one of whom shall be appointed by the Speaker
17 of the House of Representatives and one of whom shall be
18 appointed by the Minority Leader of the House of
19 Representatives, who shall serve terms coterminous with their
20 respective appointing authorities.
21 (3) A health care worker residing in this Commonwealth
22 who is a physician and is appointed by the Governor, who
23 shall serve an initial term of three years.
24 (4) A health care worker residing in this Commonwealth
25 who is licensed by the Department of State as a nurse and is
26 appointed by the Governor, who shall serve an initial term of
27 three years.
28 (5) A health care worker residing in this Commonwealth
29 who is licensed by the Department of State as a pharmacist
30 and is appointed by the Governor, who shall serve an initial
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1 term of two years.
2 (6) A health care worker residing in this Commonwealth
3 who is employed by a hospital and is appointed by the
4 Governor, who shall serve an initial term of two years.
5 (7) Two residents of this Commonwealth, one of whom is a
6 health care worker and one of whom is not a health care
7 worker, appointed by the Governor who shall each serve a term
8 of four years.
9 (c) Terms.--With the exception of paragraphs (1) and (2),
10 members of the board shall serve for terms of four years after
11 completion of the initial terms designated in subsection (b) and
12 shall not be eligible to serve more than two full consecutive
13 terms.
14 (d) Quorum.--A majority of the members of the board shall
15 constitute a quorum. Notwithstanding any other provision of law,
16 action may be taken by the board at a meeting upon a vote of the
17 majority of its members present in person or through the use of
18 amplified telephonic equipment if authorized by the bylaws of
19 the board.
20 (e) Meetings.--The board shall meet at the call of the
21 chairperson or as may be provided in the bylaws of the board.
22 The board shall hold meetings at least quarterly, which shall be
23 subject to the requirements of 65 Pa.C.S. Ch. 7 (relating to
24 open meetings). Meetings of the board may be held anywhere
25 within this Commonwealth.
26 (f) Chairperson.--The chairperson shall be the person
27 appointed under subsection (b)(1).
28 (g) Formation.--The authority shall be formed within 60 days
29 of the effective date of this section.
30 Section 304. Powers and duties.
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1 (a) General rule.--The authority shall do all of the
2 following:
3 (1) Adopt bylaws necessary to carry out the provisions
4 of this chapter.
5 (2) Employ staff as necessary to implement this chapter.
6 (3) Make, execute and deliver contracts and other
7 instruments.
8 (4) Apply for, solicit, receive, establish priorities
9 for, allocate, disburse, contract for, administer and spend
10 funds in the fund and other funds that are made available to
11 the authority from any source consistent with the purposes of
12 this chapter.
13 (5) Contract with a for-profit or registered nonprofit
14 entity or entities, other than a health care provider, to do
15 the following:
16 (i) Collect, analyze and evaluate data regarding
17 reports of serious events and incidents, including the
18 identification of a pattern in frequency or severity at
19 certain medical facilities or in certain regions of this
20 Commonwealth.
21 (ii) Transmit to the authority recommendations for
22 changes in health care practices and procedures, which
23 may be instituted for the purpose of reducing the number
24 and severity of serious events and incidents.
25 (iii) Directly advise reporting medical facilities
26 of immediate changes that can be instituted to reduce
27 serious events and incidents.
28 (iv) Conduct reviews in accordance with subsection
29 (b).
30 (6) Receive and evaluate recommendations made by the
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1 entity or entities contracted with in accordance with
2 paragraph (5) and report those recommendations to the
3 department, which shall have no more than 30 days to approve
4 or disapprove the recommendations.
5 (6.1) CONTRACT WITH A WORLD WIDE WEB-BASED BUSINESS <--
6 INTELLIGENCE PROVIDER TO DO THE FOLLOWING:
7 (I) INTEGRATE DISPARATE DATA SOURCES.
8 (II) ESTABLISH MEASURES OF KEY PERFORMANCE
9 INDICATORS AS DETERMINED BY THE AUTHORITY.
10 (III) PROVIDE GRAPHIC DEPICTIONS AND VISUALIZATION
11 OF THE DATA.
12 (7) After consultation and approval by the department,
13 issue recommendations to medical facilities on a facility-
14 specific or on a Statewide basis regarding changes, trends
15 and improvements in health care practices and procedures for
16 the purpose of reducing the number and severity of serious
17 events and incidents. Prior to issuing recommendations,
18 consideration shall be given to the following factors that
19 include: expectation of improved quality care, implementation
20 feasibility, other relevant implementation practices and the
21 cost impact to patients, payors and medical facilities.
22 Statewide recommendations shall be issued to medical
23 facilities on a continuing basis and shall be published and
24 posted on the department's and the authority's publicly
25 accessible World Wide Web site.
26 (8) Meet with the department for purposes of
27 implementing this chapter.
28 (b) Anonymous reports to the authority.--A health care
29 worker who has complied with section 308(a) may file an
30 anonymous report regarding a serious event with the authority.
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1 Upon receipt of the report, the authority shall give notice to
2 the affected medical facility that a report has been filed. The
3 authority shall conduct its own review of the report, unless the
4 medical facility has already commenced an investigation of the
5 serious event. The medical facility shall provide the authority
6 with the results of its investigation no later than 30 days
7 after receiving notice pursuant to this subsection. If the
8 authority is dissatisfied with the adequacy of the investigation
9 conducted by the medical facility, the authority shall perform
10 its own review of the serious event and may refer a medical
11 facility and any involved licensee to the department for failure
12 to report pursuant to section 313(e) and (f).
13 (c) Annual report to General Assembly.--
14 (1) The authority shall report no later than May 1,
15 2003, and annually thereafter to the department and the
16 General Assembly on the authority's activities in the
17 preceding year. The report shall include:
18 (i) A schedule of the year's meetings.
19 (ii) A list of contracts entered into pursuant to
20 this section, including the amounts awarded to each
21 contractor.
22 (iii) A summary of the fund receipts and
23 expenditures, including a financial statement and balance
24 sheet.
25 (iv) The number of serious events and incidents
26 reported by medical facilities on a geographical basis.
27 (v) The information derived from the data collected
28 including any recognized trends concerning patient
29 safety.
30 (vi) The number of anonymous reports filed and
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1 reviews conducted by the authority.
2 (vii) The number of referrals to licensure boards
3 for failure to report under this chapter.
4 (viii) Recommendations for statutory or regulatory
5 changes which may help improve patient safety in the
6 Commonwealth.
7 (2) The report shall be distributed to the Secretary of
8 Health, the chair and minority chair of the Public Health and
9 Welfare Committee of the Senate and the chair and minority
10 chair of the Health and Human Services Committee of the House
11 of Representatives.
12 (3) The annual report shall be made available for public
13 inspection and shall be posted on the authority's publicly
14 accessible World Wide Web site.
15 Section 305. Patient Safety Trust Fund.
16 (a) Establishment.--There is hereby established a separate
17 account in the State Treasury to be known as the Patient Safety
18 Trust Fund. The fund shall be administered by the authority. All
19 interest earned from the investment or deposit of moneys
20 accumulated in the fund shall be deposited in the fund for the
21 same use.
22 (b) Funds.--All moneys deposited into the fund shall be held
23 in trust and shall not be considered general revenue of the
24 Commonwealth but shall be used only to effectuate the purposes
25 of this chapter as determined by the authority.
26 (c) Assessment.--Commencing July 1, 2002, each medical
27 facility shall pay the department a surcharge on its licensing
28 fee as necessary to provide sufficient revenues to operate the
29 authority. The total assessment for all medical facilities shall
30 not exceed $5,000,000. The department shall transfer the total
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1 assessment amount to the fund within 30 days of receipt.
2 (d) Base amount.--For each succeeding calendar year, the
3 department shall determine and assess each medical facility its
4 proportionate share of the authority's budget. The total
5 assessment amount shall not exceed $5,000,000 in fiscal year
6 2002-2003 and shall be increased according to the Consumer Price
7 Index in each succeeding fiscal year.
8 (e) Expenditures.--Moneys in the fund shall be expended by
9 the authority to implement this chapter.
10 (f) Dissolution.--In the event that the fund is discontinued
11 or the authority is dissolved by operation of law, any balance
12 remaining in the fund, after deducting administrative costs of
13 liquidation, shall be returned to the medical facilities in
14 proportion to their financial contributions to the fund in the
15 preceding licensing period.
16 (g) Failure to pay surcharge.--If after 30 days' notice a
17 medical facility fails to pay a surcharge levied by the
18 department under this chapter, the department may assess an
19 administrative penalty of $1,000 per day until the surcharge is
20 paid.
21 Section 306. Department responsibilities.
22 (a) General rule.--The department shall do all of the
23 following:
24 (1) Review and approve patient safety plans in
25 accordance with section 307.
26 (2) Receive reports of serious events and infrastructure
27 failures under section 313.
28 (3) Investigate serious events and infrastructure
29 failures.
30 (4) In conjunction with the authority, analyze and
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1 evaluate existing health care procedures and approve
2 recommendations issued by the authority pursuant to section
3 304(a)(6) and (7).
4 (5) Meet with the authority for purposes of implementing
5 this chapter.
6 (b) Department consideration.--The recommendations made to
7 medical facilities pursuant to subsection (a)(4) may be
8 considered by the department for licensure purposes under the
9 act of July 19, 1979 (P.L.130, No.48), known as the Health Care
10 Facilities Act, but shall not be considered mandatory unless
11 adopted by the department as regulations pursuant to the act of
12 June 25, 1982 (P.L.633, No.181), known as the Regulatory Review
13 Act.
14 Section 307. Patient safety plans.
15 (a) Development and compliance.--A medical facility shall
16 develop, implement and comply with an internal patient safety
17 plan that shall be established for the purpose of improving the
18 health and safety of patients. The plan shall be developed in
19 consultation with the licensees providing health care services
20 in the medical facility.
21 (b) Requirements.--A patient safety plan shall:
22 (1) Designate a patient safety officer as set forth in
23 section 309.
24 (2) Establish a patient safety committee as set forth in
25 section 310.
26 (3) Establish a system for the health care workers of a
27 medical facility to report serious events and incidents which
28 shall be accessible 24 hours a day, seven days a week.
29 (4) Prohibit any retaliatory action against a health
30 care worker for reporting a serious event or incident in
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1 accordance with the act of December 12, 1986 (P.L.1559,
2 No.169), known as the Whistleblower Law.
3 (5) Provide for written notification to patients in
4 accordance with section 308(b).
5 (c) Approval.--Within 60 days from the effective date of
6 this section, a medical facility shall submit its patient safety
7 plan to the department for approval consistent with the
8 requirements of this section. Unless the department approves or
9 rejects the plan within 60 days of receipt, the plan shall be
10 deemed approved.
11 (d) Employee notification.--Upon approval of the patient
12 safety plan, a medical facility shall notify all health care
13 workers of the medical facility of the patient safety plan.
14 Compliance with the patient safety plan shall be required as a
15 condition of employment or credentialing at the medical
16 facility.
17 Section 308. Reporting and notification.
18 (a) Reporting.--A health care worker who reasonably believes
19 that a serious event or incident has occurred shall report the
20 serious event or incident according to the patient safety plan
21 of the medical facility, unless the health care worker knows
22 that a report has already been made. The report shall be made
23 immediately or as soon thereafter as reasonably practicable, but
24 in no event later than 24 hours after the occurrence or
25 discovery of a serious event or incident.
26 (b) Duty to notify patient.--A medical facility through an
27 appropriate designee shall provide written notification to a
28 patient affected by a serious event or, with the consent of the
29 patient, to an available family member or designee, within seven
30 days of the occurrence or discovery of a serious event. If the
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1 patient is unable to give consent, the notification shall be
2 given to an adult member of the immediate family. If an adult
3 member of the immediate family cannot be identified or located,
4 notification shall be given to the closest adult family member.
5 For unemancipated patients who are under 18 years of age, the
6 parent or guardian shall be notified in accordance with this
7 subsection. The notification requirements of this subsection
8 shall not be subject to the provisions of section 311(a).
9 Notification under this subsection shall not constitute an
10 acknowledgment or admission of liability.
11 (c) Liability.--A health care worker who reports the
12 occurrence of a serious event or incident in accordance with
13 subsection (a) or (b) shall not be subject to any retaliatory
14 action for reporting the serious event or incident, and shall
15 have the protections and remedies set forth in the act of
16 December 12, 1986 (P.L.1559, No.169), known as the Whistleblower
17 Law.
18 (d) Limitation.--Nothing in this section shall limit a
19 medical facility's ability to take appropriate disciplinary
20 action against a health care worker for failure to meet defined
21 performance expectations or to take corrective action against a
22 licensee for unprofessional conduct, including making false
23 reports or failure to report serious events under this chapter.
24 SECTION 308.1. PRESERVATION AND ACCURACY OF MEDICAL RECORDS. <--
25 (A) PATIENT CHARTS.--ENTRIES IN PATIENT CHARTS CONCERNING
26 CARE RENDERED SHALL BE MADE CONTEMPORANEOUSLY. EXCEPT AS
27 OTHERWISE PROVIDED FOR IN THIS SECTION, IT SHALL BE UNLAWFUL TO
28 MAKE ADDITIONS OR DELETIONS TO A PATIENT'S CHART.
29 (B) PERMISSIBLE CORRECTIONS.--IT SHALL NOT BE UNLAWFUL FOR A
30 HEALTH CARE PROVIDER TO:
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1 (1) CORRECT INFORMATION ON A PATIENT'S CHART, WHERE
2 INFORMATION HAS BEEN ENTERED ERRONEOUSLY, OR WHERE IT IS
3 NECESSARY TO CLARIFY ENTRIES MADE THEREON, PROVIDED THAT SUCH
4 CORRECTIONS OR ADDITIONS SHALL BE CLEARLY IDENTIFIED AS
5 SUBSEQUENT ENTRIES BY A DATE AND TIME.
6 (2) ADD INFORMATION TO A PATIENT'S CHART WHERE IT WAS
7 NOT AVAILABLE AT THE TIME THE RECORD WAS FIRST CREATED,
8 PROVIDED THAT:
9 (I) SUCH ADDITIONS SHALL BE CLEARLY DATED AND TIMED
10 AS SUBSEQUENT ENTRIES.
11 (II) A HEALTH CARE PROVIDER MAY ADD SUPPLEMENTAL
12 INFORMATION WITHIN A REASONABLE TIME.
13 (C) DESTRUCTION.--IT SHALL BE UNLAWFUL FOR A HEALTH CARE
14 PROVIDER TO DESTROY OR DISCARD DIAGNOSTIC SLIDES, SPECIMENS,
15 SURGICAL HARDWARE OR X-RAYS WITHOUT THE WRITTEN CONSENT OF THE
16 PATIENT, PROVIDED THAT RECORDS MAY BE DESTROYED BY ORDER OF
17 COURT OR AFTER SEVEN YEARS HAS PASSED FROM THEIR CREATION.
18 (D) EVIDENCE OF ALTERATION OR DESTRUCTION.--IN ANY CIVIL
19 ACTION IN WHICH THE PLAINTIFF PROVES BY A PREPONDERANCE OF THE
20 EVIDENCE THAT THERE HAS BEEN ALTERATION OR DESTRUCTION OF
21 MEDICAL RECORDS, THE TRIAL COURT, IN ITS DISCRETION, MAY
22 INSTRUCT THE JURY TO CONSIDER WHETHER SUCH ALTERATION OR
23 DESTRUCTION OCCURRED IN AN ATTEMPT TO ELIMINATE EVIDENCE THAT A
24 HEALTH CARE PROVIDER BREACHED THE STANDARD OF CARE WITH RESPECT
25 TO THAT PATIENT.
26 (E) GROUNDS FOR SUSPENSION OF LICENSE.--ALTERATION OR
27 DESTRUCTION OF MEDICAL RECORDS, FOR THE PURPOSE OF ELIMINATING
28 INFORMATION THAT WOULD GIVE RISE TO CIVIL LIABILITY ON THE PART
29 OF A HEALTH CARE PROVIDER, SHALL CONSTITUTE A GROUND FOR
30 SUSPENSION BY THE STATE BOARD OF MEDICINE. A HEALTH CARE
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1 PROVIDER WHO IS AWARE OF ALTERATION OR DESTRUCTION IN VIOLATION
2 OF THIS SECTION SHALL REPORT ANY PARTY SUSPECTED OF SUCH CONDUCT
3 TO THE STATE BOARD OF MEDICINE.
4 Section 309. Patient safety officer.
5 A patient safety officer of a medical facility shall do all
6 of the following:
7 (1) Serve on the patient safety committee.
8 (2) Ensure the investigation of all reports of serious
9 events and incidents.
10 (3) Take such action as is immediately necessary to
11 ensure patient safety as a result of any investigation.
12 (4) Report to the patient safety committee regarding any
13 action taken to promote patient safety as a result of
14 investigations commenced pursuant to this section.
15 Section 310. Patient safety committee.
16 (a) Composition.--
17 (1) A hospital's patient safety committee shall be
18 composed of the medical facility's patient safety officer,
19 and at least three health care workers of the medical
20 facility and two residents of the community served by the
21 medical facility who are not agents, employees or contractors
22 of the medical facility. No more than one member of the
23 patient safety committee shall be a member of the medical
24 facility's board of trustees. The committee shall include
25 members of the medical facility's medical and nursing staff.
26 The committee shall meet at least monthly.
27 (2) An ambulatory surgical facility's or birth center's
28 patient safety committee shall be composed of the medical
29 facility's patient safety officer, and at least one health
30 care worker of the medical facility and one resident of the
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1 community served by the ambulatory surgical facility or birth
2 center who is not an agent, employee or contractor of the
3 ambulatory surgical facility or birth center. No more than
4 one member of the patient safety committee shall be a member
5 of the medical facility's board of governance. The committee
6 shall include members of the medical facility's medical and
7 nursing staff. The committee shall meet at least quarterly.
8 (b) Responsibilities.--A patient safety committee of a
9 medical facility shall do all of the following:
10 (1) Receive reports from the patient safety officer
11 pursuant to section 309.
12 (2) Evaluate investigations and actions of the patient
13 safety officer on all reports.
14 (3) Review and evaluate the quality of patient safety
15 measures utilized by the medical facility. A review shall
16 include the consideration of reports made under sections
17 304(a)(5) and (b), 307(b)(3) and 308(a).
18 (4) Make recommendations to eliminate future serious
19 events and incidents.
20 (5) Report to the administrative officer and governing
21 body of the medical facility on a quarterly basis regarding
22 the number of serious events and incidents and its
23 recommendations to eliminate future serious events and
24 incidents.
25 Section 311. Confidentiality and compliance.
26 (a) Prepared materials.--Any documents, materials or
27 information solely prepared or created for the purpose of
28 compliance with section 310(b) or of reporting under section
29 304(a)(5) or (b), 306(a)(2) or (3), 307(b)(3), 308(a), 309(4),
30 310(b)(5) or 313 which arise out of matters reviewed by the
20010H1802B3326 - 21 -
1 patient safety committee pursuant to section 310(b) or the
2 governing board of a medical facility pursuant to section 310(b)
3 are confidential and shall not be discoverable or admissible as
4 evidence in any civil or administrative action or proceeding.
5 Any documents, materials, records or information that would
6 otherwise be available from original sources shall not be
7 construed as immune from discovery or use in any civil or
8 administrative action or proceeding merely because they were
9 presented to the patient safety committee or governing board of
10 a medical facility.
11 (b) Meetings.--No person who performs responsibilities for
12 or participates in meetings of the patient safety committee or
13 governing board of a medical facility pursuant to section 310(b)
14 shall be allowed to testify as to any matters within the
15 knowledge gained by the person's responsibilities or
16 participation on the patient safety committee or governing board
17 of a medical facility provided, however, the person shall be
18 allowed to testify as to any matters within the person's
19 knowledge which was gained outside of the persons's
20 responsibilities or participation on the patient safety
21 committee or governing board of a medical facility pursuant to
22 section 310(b).
23 (c) Applicability.--The confidentiality protections set
24 forth in subsections (a) and (b) shall only apply to the
25 documents, materials or information prepared or created pursuant
26 to the responsibilities of the patient safety committee or
27 governing board of a medical facility set forth in section
28 310(b).
29 (d) Received materials.--Except as set forth in subsection
30 (f), any documents, materials or information received by the
20010H1802B3326 - 22 -
1 authority or department from the medical facility, health care
2 worker, patient safety committee or governing board of a medical
3 facility solely prepared or created for the purpose of
4 compliance with section 310(b) or of reporting under section
5 304(a)(5) or (b), 306(a)(2) or (3), 307(b)(3), 308(a), 309(4),
6 310(b)(5) or 313 shall not be discoverable or admissible as
7 evidence in any civil or administrative action or proceeding.
8 Any records received by the authority or department from the
9 medical facility, health care worker, patient safety committee
10 or governing board of a medical facility pursuant to the
11 requirements of this act shall not be discoverable from the
12 department or the authority in any civil or administrative
13 action or proceeding. Documents, materials, records or
14 information may be used by the authority or department to comply
15 with the reporting requirements under subsection (f) and section
16 304(a)(7) or (c) or 306(b).
17 (e) Document review.--
18 (1) Except as set forth in paragraph (2), no current or
19 former employee of the authority, the department or the
20 Department of State shall be allowed to testify as to any
21 matters gained by reason of his or her review of documents,
22 materials, records or information submitted to the authority
23 by the medical facility or health care worker pursuant to the
24 requirements of this act.
25 (2) Paragraph (1) does not apply to findings or actions
26 by the department or the Department of State which are public
27 records.
28 (f) Access.--
29 (1) The department shall have access to the information
30 under section 313(a) or (c) and may use such information for
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1 the sole purpose of any licensure or corrective action
2 against a medical facility. This exemption to use the
3 information received pursuant to section 313(a) or (c) shall
4 only apply to licensure or corrective actions and shall not
5 be utilized to permit the disclosure of any information
6 obtained under section 313(a) or (c) for any other purpose.
7 (2) The Department of State shall have access to the
8 information under section 313(a) and may use such information
9 for the sole purpose of any licensure or disciplinary action
10 against a health care worker. This exemption to use the
11 information received pursuant to section 313(a) shall only
12 apply to licensure or disciplinary actions and shall not be
13 utilized to permit the disclosure of any information obtained
14 under section 313(a) for any other purpose.
15 (g) Original source document.--In the event an original
16 source document as set forth in subsection (a) is determined by
17 a court of competent jurisdiction to be unavailable from the
18 health care worker or medical facility in a civil action or
19 proceeding, then, in that circumstance alone, the department may
20 be required pursuant to a court order to release that original
21 source document to the party identified in the court order.
22 (h) Right-to-know requests.--Any documents, materials or
23 information made confidential by subsection (a) shall not be
24 subject to requests under the act of June 21, 1957 (P.L.390,
25 No.212), referred to as the Right-to-Know Law.
26 (i) Liability.--Notwithstanding any other provision of law,
27 no person providing information or services to the patient
28 safety committee, governing board of a medical facility,
29 authority or department shall be held by reason of having
30 provided such information or services to have violated any
20010H1802B3326 - 24 -
1 criminal law, or to be civilly liable under any law, unless such
2 information is false and the person providing such information
3 knew, or had reason to believe, that such information was false
4 and was motivated by malice toward any person directly affected
5 by such action.
6 Section 312. Patient safety discount.
7 A medical facility may make application to the commissioner
8 for certification of any program that is recommended by the
9 authority that results in the reduction of serious events at
10 that facility. The commissioner, in consultation with the
11 department, shall develop the criteria for such certification.
12 Upon receipt of the certification by the commissioner, a medical
13 facility shall receive a discount in the rate or rates
14 applicable for mandated basic insurance coverage required by
15 law, with the level of such discount determined by the
16 commissioner. In determining the level of any such discount, the
17 commissioner shall consider whether, and the extent to which,
18 the program certified under this section is otherwise covered
19 under a program of risk management offered by an insurance
20 company or exchange or self-insurance plan providing medical
21 professional liability coverage.
22 Section 313. Medical facility reports and notifications.
23 (a) Serious event reports.--A medical facility shall report
24 the occurrence of a serious event to the department and the
25 authority within 24 hours of the medical facility's confirmation
26 of the occurrence of the serious event. The report to the
27 department and the authority shall be in the form and manner
28 prescribed by the authority in consultation with the department
29 and shall not include the name of any patient or any other
30 identifiable individual information.
20010H1802B3326 - 25 -
1 (b) Incident reports.--A medical facility shall report the
2 occurrence of an incident to the authority in a form and manner
3 prescribed by the authority and shall not include the name of
4 any patient or any other identifiable individual information.
5 (c) Infrastructure failure reports.--A medical facility
6 shall report the occurrence of an infrastructure failure to the
7 department within 24 hours of the medical facility's
8 confirmation of the occurrence or discovery of the
9 infrastructure failure. The report to the department shall be in
10 the form and manner prescribed by the department.
11 (d) Effect of report.--Compliance with this section by a
12 medical facility shall satisfy the reporting requirements of the
13 act of July 19, 1979 (P.L.130, No.48), known as the Health Care
14 Facilities Act.
15 (e) Notification to licensure boards.--If a medical facility
16 discovers that a licensee providing health care services in the
17 medical facility during a serious event failed to report the
18 event in accordance with section 308(a), the medical facility
19 shall notify the licensee's licensing board of the failure to
20 report.
21 (f) Failure to report or notify.--Failure to report a
22 serious event or an infrastructure failure as required by this
23 section or to develop and comply with the patient safety plan in
24 accordance with section 307 or to notify the patient in
25 accordance with section 308(b) shall be a violation of the
26 Health Care Facilities Act. In addition to any penalty which may
27 be imposed under the Health Care Facilities Act, a medical
28 facility which fails to report a serious event or an
29 infrastructure failure or to notify a licensure board in
30 accordance with this chapter may be subject to an administrative
20010H1802B3326 - 26 -
1 penalty of $1,000 per day imposed by the department.
2 (g) Report submission.--Within 30 days following notice
3 published pursuant to section 5103, a medical facility shall
4 begin reporting serious events, incidents and infrastructure
5 failures consistent with the requirements of this section.
6 Section 314. Existing regulations.
7 The provisions of 28 Pa. Code § 51.3(f) and (g) (relating to
8 notification) shall be abrogated with respect to a medical
9 facility upon the reporting of a serious event, incident or
10 infrastructure failure pursuant to section 313.
11 CHAPTER 5
12 MEDICAL PROFESSIONAL LIABILITY
13 Section 501. Scope.
14 This chapter relates to medical professional liability.
15 Section 502. Declaration of policy.
16 The General Assembly finds and declares that it is the
17 purpose of this chapter to ensure a fair legal process and
18 reasonable compensation for persons injured due to medical
19 negligence in this Commonwealth. Ensuring the future
20 availability of and access to quality health care is a
21 fundamental responsibility that the General Assembly must
22 fulfill as a promise to our children, our parents and our
23 grandparents.
24 Section 503. Definitions.
25 The following words and phrases when used in this chapter
26 shall have the meanings given to them in this section unless the
27 context clearly indicates otherwise:
28 "Commission." The Interbranch Commission on Venue
29 established in section 514.
30 "Department." The Insurance Department of the Commonwealth.
20010H1802B3326 - 27 -
1 "Informed consent." The consent of a patient to the
2 performance of a procedure in accordance with section 504.
3 Section 504. Informed consent.
4 (a) Duty of physicians.--Except in emergencies, a physician
5 owes a duty to a patient to obtain the informed consent of the
6 patient or the patient's authorized representative prior to
7 conducting the following procedures:
8 (1) Performing surgery, including the related
9 administration of anesthesia.
10 (2) Administering radiation or chemotherapy.
11 (3) Administering a blood transfusion.
12 (4) Inserting a surgical device or appliance.
13 (5) Administering an experimental medication, using an
14 experimental device or using an approved medication or device
15 in an experimental manner.
16 (b) Description of procedure.--Consent is informed if the
17 patient has been given a description of a procedure set forth in
18 subsection (a) and the risks and alternatives that a reasonably
19 prudent patient would require to make an informed decision as to
20 that procedure. The physician shall be entitled to present
21 evidence of the description of that procedure and those risks
22 and alternatives that a physician acting in accordance with
23 accepted medical standards of medical practice would provide.
24 (c) Expert testimony.--Expert testimony is required to
25 determine whether the procedure constituted the type of
26 procedure set forth in subsection (a) and to identify the risks
27 of that procedure, the alternatives to that procedure and the
28 risks of these alternatives.
29 (d) Liability.--
30 (1) A physician is liable for failure to obtain the
20010H1802B3326 - 28 -
1 informed consent only if the patient proves that receiving
2 such information would have been a substantial factor in the
3 patient's decision whether to undergo a procedure set forth
4 in subsection (a).
5 (2) A physician may be held liable for failure to seek a
6 patient's informed consent if the physician knowingly
7 misrepresents to the patient his or her professional
8 credentials, training or experience.
9 Section 505. Punitive damages.
10 (a) Award.--Punitive damages may be awarded for conduct that
11 is the result of the health care provider's willful or wanton
12 conduct or reckless indifference to the rights of others. In
13 assessing punitive damages, the trier of fact can properly
14 consider the character of the health care provider's act, the
15 nature and extent of the harm to the patient that the health
16 care provider caused or intended to cause and the wealth of the
17 health care provider.
18 (b) Gross negligence.--A showing of gross negligence is
19 insufficient to support an award of punitive damages.
20 (c) Vicarious liability.--Punitive damages shall not be
21 awarded against a health care provider who is only vicariously
22 liable for the actions of its agent that caused the injury
23 unless it can be shown by a preponderance of the evidence that
24 the party knew of and allowed the conduct by its agent that
25 resulted in the award of punitive damages.
26 (d) Total amount of damages.--Except in cases alleging
27 intentional misconduct, punitive damages against an individual
28 physician shall not exceed 200% of the compensatory damages
29 awarded. Punitive damages, when awarded, shall not be less than
30 $100,000 unless a lower verdict amount is returned by the trier
20010H1802B3326 - 29 -
1 of fact.
2 (e) Allocation.--Upon the entry of a verdict including an
3 award of punitive damages, the punitive damages portion of the
4 award shall be allocated as follows:
5 (1) 75% shall be paid to the prevailing party; and
6 (2) 25% shall be paid to the Medical Care Availability
7 and Reduction of Error Fund.
8 Section 506. Affidavit of noninvolvement.
9 (a) General provisions.--Any health care provider named as a
10 defendant in a medical professional liability action may cause
11 the action against that provider to be dismissed upon the filing
12 of an affidavit of noninvolvement with the court. The affidavit
13 of noninvolvement shall set forth, with particularity, the facts
14 which demonstrate that the provider was misidentified or
15 otherwise not involved, individually or through its servants or
16 employees, in the care and treatment of the claimant, and was
17 not obligated, either individually or through its servants or
18 employees, to provide for the care and treatment of the
19 claimant.
20 (b) Statute of limitations.--The filing of an affidavit of
21 noninvolvement by a health care provider shall have the effect
22 of tolling the statute of limitations as to that provider with
23 respect to the claim at issue as of the date of the filing of
24 the original pleading.
25 (c) Challenge.--A codefendant or claimant shall have the
26 right to challenge an affidavit of noninvolvement by filing a
27 motion and submitting an affidavit which contradicts the
28 assertions of noninvolvement made by the health care provider in
29 the affidavit of noninvolvement.
30 (d) False or inaccurate filing or statement.--If the court
20010H1802B3326 - 30 -
1 determines that a health care provider named as a defendant
2 falsely files or makes false or inaccurate statements in an
3 affidavit of noninvolvement, the court, upon motion or upon its
4 own initiative, shall immediately reinstate the claim against
5 that provider. In any action where the health care provider is
6 found by the court to have knowingly filed a false or inaccurate
7 affidavit of noninvolvement, the court shall impose upon the
8 person who signed the affidavit or represented the party, or
9 both, an appropriate sanction, including, but not limited to, an
10 order to pay to the other party or parties the amount of the
11 reasonable expenses incurred because of the filing of the false
12 affidavit, including a reasonable attorney fee.
13 Section 507. Advance payments.
14 No advance payment made by the health care provider or the
15 provider's basic coverage insurance carrier to or for the
16 claimant shall be construed as an admission of liability for
17 injuries or damages suffered by the claimant. Notwithstanding
18 section 508, evidence of an advance payment shall not be
19 admissible by a claimant in a medical professional liability
20 action.
21 Section 508. Collateral sources.
22 (a) General rule.--Except as set forth in subsection (d), a
23 claimant in a medical professional liability action is precluded
24 from recovering damages for past medical expenses or past lost
25 earnings incurred to the time of trial to the extent that the
26 loss is covered by a private or public benefit or gratuity that
27 the claimant has received prior to trial.
28 (b) Option.--The claimant has the option to introduce into
29 evidence at trial the amount of medical expenses actually
30 incurred, but the claimant shall not be permitted to recover for
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1 such expenses as part of any verdict except to the extent that
2 the claimant remains legally responsible for such payment.
3 (c) No subrogation.--Except as set forth in subsection (d),
4 there shall be no right of subrogation or reimbursement from a
5 claimant's tort recovery with respect to a public or private
6 benefit covered in subsection (a).
7 (d) Exceptions.--The collateral source provisions set forth
8 in subsection (a) shall not apply to the following:
9 (1) Life insurance, pension or profit-sharing plans or
10 other deferred compensation plans, including agreements
11 pertaining to the purchase or sale of a business.
12 (2) Social Security benefits.
13 (3) Cash or medical assistance benefits which are
14 subject to repayment to the Department of Public Welfare.
15 (4) Public benefits paid or payable under a program
16 which, under Federal statute, provides for right of
17 reimbursement which supersedes State law for the amount of
18 benefits paid from a verdict or settlement.
19 Section 509. Payment of damages.
20 (a) General rule.--At the option of any party to a medical <--
21 professional liability action, the THE trier of fact shall make <--
22 a determination with separate findings for each claimant
23 specifying the amount of all of the following:
24 (1) Except as provided for under section 508, past
25 damages for:
26 (i) medical and other related expenses in a lump
27 sum;
28 (ii) loss of earnings in a lump sum; and
29 (iii) noneconomic losses in a lump sum.
30 (2) Future damages for:
20010H1802B3326 - 32 -
1 (i) medical and other related expenses by year;
2 (ii) loss of earnings or earning capacity in a lump
3 sum; and
4 (iii) noneconomic loss in a lump sum AND IN A LUMP <--
5 SUM REDUCED TO PRESENT VALUE BASED UPON EQUALIZED
6 PAYMENTS OVER THE LIFE EXPECTANCY OF THE CLAIMANT.
7 (b) Future damages.--
8 (1) Except as set forth in paragraph (8), future damages
9 for medical and other related expenses shall be paid as
10 periodic payments after payment of the proportionate share of
11 counsel fees and costs based upon the present value of the
12 future damages awarded pursuant to this subsection. The trier
13 of fact may vary the amount of periodic payments for future
14 damages as set forth in subsection (a)(2)(i) from year to
15 year for the expected life of the claimant to account for
16 different annual expenditure requirements, including the
17 immediate needs of the claimant. The trier of fact shall also
18 provide for purchase and replacement of medically necessary
19 equipment in the years that expenditures will be required as
20 may be necessary.
21 (2) The trier of fact may incorporate into any future
22 medical expense award adjustments to account for reasonably
23 anticipated inflation and medical care improvements as
24 presented by competent evidence.
25 (3) Future damages as set forth in subsection (a)(2)(i)
26 shall be paid in the years that the trier of fact finds they
27 will accrue. Unless the court orders or approves a different
28 schedule for payment, the annual amounts due must be paid in
29 equal quarterly installments, rounded to the nearest dollar.
30 Each installment is due and payable on the first day of the
20010H1802B3326 - 33 -
1 month in which it accrues.
2 (4) Interest does not accrue on a periodic payment
3 before payment is due. If the payment is not made on or
4 before the due date, the legal rate of interest accrues as of
5 that date.
6 (5) Liability to a claimant for periodic payments not
7 yet due for medical expenses terminates upon the claimant's
8 death. LIABILITY TO A CLAIMANT FOR PERIODIC PAYMENTS NOT YET <--
9 DUE FOR NONECONOMIC LOSS SHALL NOT TERMINATE UPON THE
10 CLAIMANT'S DEATH.
11 (6) Each party liable for all or a portion of the
12 judgment shall provide funding for the awarded periodic
13 payments, separately or jointly with one or more others, by
14 means of an annuity contract, trust or other qualified
15 funding plan, which is approved by the court. The
16 commissioner shall annually publish a list of insurers
17 designated by the commissioner as qualified to participate in
18 the funding of periodic payment judgments. No annuity
19 contractor may be placed on the commissioner's list of
20 insurers, unless the insurer has received the highest rating
21 for solvency by two independent financial services within the
22 last 12 months.
23 (7) If an insurer defaults on a required periodic
24 payment due to insolvency, the claimant shall be entitled to
25 receive the payment from the Medical Care Availability and
26 Reduction of Error Fund or, if the fund has ceased operations
27 from the Pennsylvania Life and Health Insurance Guaranty
28 Association or the Property and Casualty Insurance Guaranty
29 Association, whichever is applicable.
30 (8) Future damages for medical and other related
20010H1802B3326 - 34 -
1 expenses shall not be awarded in periodic payments if the
2 claimant objects and stipulates that the total amount of the
3 future damages for medical and other related expenses,
4 without reduction to present value, does not exceed $100,000.
5 (9) FUTURE DAMAGES FOR NONECONOMIC LOSS AFTER PAYMENT OF <--
6 THE PROPORTIONATE SHARE OF COUNSEL FEES AND COSTS SHALL, AT
7 THE OPTION OF THE CLAIMANT, BE PAYABLE:
8 (I) THROUGH PERIODIC PAYMENTS NOT IN EXCESS OF 20
9 YEARS IN DURATION; OR
10 (II) IN A LUMP SUM REDUCED TO PRESENT VALUE BASED ON
11 EQUALIZED PAYMENTS OVER THE LIFE EXPECTANCY OF THE
12 CLAIMANT.
13 (c) Effect of full funding.--If full funding of an award
14 pursuant to this section has been provided, the judgment is
15 discharged and any outstanding liens as a result of the judgment
16 are released.
17 (d) Retained jurisdiction.--The court which enters judgment
18 shall retain jurisdiction to enforce the judgment and to resolve
19 related disputes.
20 Section 510. Reduction to present value.
21 Future damages for loss of earnings or earning capacity shall
22 be reduced to present value based upon the return that the
23 claimant can earn on a reasonably secure fixed income
24 investment. These damages shall be presented with competent
25 evidence of the effect of productivity and inflation over time.
26 The trier of fact shall determine the applicable discount rate
27 based upon competent evidence.
28 Section 511. Preservation and accuracy of medical records.
29 (a) Timing.--Entries in patient charts concerning care
30 rendered shall be made contemporaneously or as soon as
20010H1802B3326 - 35 -
1 practicable. Except as otherwise provided for in this section,
2 it shall be considered unprofessional conduct and a violation of
3 the applicable licensing statute to make alterations to a
4 patient's chart.
5 (b) Corrections and disposal of records.--It shall not be
6 considered unprofessional conduct or a violation of the
7 applicable licensing statute for a health care provider to:
8 (1) Correct information on a patient's chart, where
9 information has been entered erroneously, or where it is
10 necessary to clarify entries made on the chart, provided that
11 such corrections or additions shall be clearly identified as
12 subsequent entries by a date and time.
13 (2) Add information to a patient's chart where it was
14 not available at the time the record was first created,
15 provided that:
16 (i) Such additions shall be clearly dated as
17 subsequent entries.
18 (ii) A health care provider may add supplemental
19 information within a reasonable time.
20 (3) Routinely dispose of medical records as permitted by
21 law.
22 (c) Alteration of records.--In any medical professional
23 liability action in which the claimant proves by a preponderance
24 of the evidence that there has been an intentional alteration or
25 destruction of medical records, the court, in its discretion,
26 may instruct the jury to consider whether such intentional
27 alteration or destruction constitutes an adverse inference.
28 (d) Licensure sanction.--Alteration or destruction of
29 medical records for the purpose of eliminating information that
30 would give rise to a medical professional liability action on
20010H1802B3326 - 36 -
1 the part of a health care provider shall constitute a ground for
2 suspension. A health care provider who is aware of alteration or
3 destruction in violation of this section shall report any party
4 suspected of such conduct to the appropriate licensure board.
5 Section 512. Expert qualifications.
6 (a) General rule.--No person shall be competent to offer an
7 expert medical opinion in a medical professional liability
8 action against a physician unless that person possesses
9 sufficient education, training, knowledge and experience to
10 provide credible, competent testimony and fulfills the
11 additional qualifications set forth in this section as
12 applicable.
13 (b) Medical testimony.--An expert testifying on a medical
14 matter, including the standard of care, risks and alternatives,
15 causation and the nature and extent of the injury, must meet the
16 following qualifications:
17 (1) Possess an unrestricted physician's license to
18 practice medicine in any state or the District of Columbia.
19 (2) Be engaged in, or retired within the previous five
20 years from, active clinical practice or teaching.
21 Provided, however, the court may waive the requirements of this
22 subsection for an expert on a matter other than the standard of
23 care if the court determines that the expert is otherwise
24 competent to testify about medical or scientific issues by
25 virtue of education, training or experience.
26 (c) Standard of care.--In addition to the requirements set
27 forth in subsections (a) and (b), an expert testifying as to a
28 physician's standard of care also must meet the following
29 qualifications:
30 (1) Be substantially familiar with the applicable
20010H1802B3326 - 37 -
1 standard of care for the specific care at issue as of the
2 time of the alleged breach of the standard of care.
3 (2) Practice in the same subspecialty as the defendant
4 physician or in a subspecialty which has a substantially
5 similar standard of care for the specific care at issue,
6 except as provided in subsection (d) or (e).
7 (3) In the event the defendant physician is certified by
8 an approved board, be board certified by the same or a
9 similar approved board, except as provided in subsection (e).
10 (d) Care outside specialty.--A court may waive the same
11 subspecialty requirement for an expert testifying on the
12 standard of care for the diagnosis or treatment of a condition
13 if the court determines that:
14 (1) the expert is trained in the diagnosis or treatment
15 of the condition, as applicable; and
16 (2) the defendant physician provided care for that
17 condition and such care was not within the physician's
18 specialty or competence.
19 (e) Otherwise adequate training, experience and knowledge.--
20 A court may waive the same specialty and board certification
21 requirements for an expert testifying as to a standard of care
22 if the court determines that the expert possesses sufficient
23 training, experience and knowledge to provide the testimony as a
24 result of active involvement in or full-time teaching of
25 medicine in the applicable subspecialty or a related field of
26 medicine within the previous five-year time period.
27 Section 513. Statute of limitations.
28 All claims for recovery pursuant to this act must be
29 commenced within the existing applicable statutes of limitation.
30 Section 514. Interbranch Commission on Venue.
20010H1802B3326 - 38 -
1 (a) Declaration of policy.--The General Assembly further
2 recognizes that recent changes in the health care delivery
3 system have necessitated a revamping of the corporate structure
4 for various medical facilities and hospitals across this
5 Commonwealth. This has unduly expanded the reach and scope of
6 existing venue rules. Training of new physicians in many
7 geographic regions has also been severely restricted by the
8 resultant expansion of venue applicability rules. These
9 physicians and health care institutions are essential to
10 maintaining the high quality of health care that our citizens
11 have come to expect.
12 (b) Establishment of Interbranch Commission on Venue.--The
13 Interbranch Commission on Venue for actions relating to medical
14 professional liability is established as follows:
15 (1) The commission shall consist of the following
16 members:
17 (i) The Chief Justice of the Supreme Court or a
18 designee of the Chief Justice.
19 (ii) The chairperson of the Civil Procedural Rules
20 Committee, who shall serve as the chairperson of the
21 commission.
22 (iii) A judge of a court of common pleas appointed
23 by the Chief Justice.
24 (iv) The Attorney General or a designee of the
25 Attorney General.
26 (v) The General Counsel.
27 (vi) Two attorneys at law, appointed by the
28 Governor.
29 (vii) Four individuals, one each appointed by the:
30 (A) President pro tempore of the Senate;
20010H1802B3326 - 39 -
1 (B) Minority Leader of the Senate;
2 (C) Speaker of the House of Representatives; and
3 (D) Minority Leader of the House of
4 Representatives.
5 (2) The commission has the following functions:
6 (i) To review and analyze the issue of venue as it
7 relates to medical professional liability actions filed
8 in this Commonwealth.
9 (ii) To report, by September 1, 2002, to the General
10 Assembly and the Supreme Court on the results of the
11 review and analysis. The report shall include
12 recommendations for such legislative action or the
13 promulgation of rules of court on the issue of venue as
14 the commission shall determine to be appropriate.
15 (3) The commission shall expire September 1, 2002.
16 CHAPTER 7
17 INSURANCE
18 SUBCHAPTER A
19 PRELIMINARY PROVISIONS
20 Section 701. Scope.
21 This chapter relates to medical professional liability
22 insurance.
23 Section 702. Definitions.
24 The following words and phrases when used in this chapter
25 shall have the meanings given to them in this section unless the
26 context clearly indicates otherwise:
27 "Basic insurance coverage." The limits of medical
28 professional liability insurance required under section 711(d).
29 "Claims made." Medical professional liability insurance that
30 insures those claims made or reported during a period which is
20010H1802B3326 - 40 -
1 insured and excludes coverage for a claim reported subsequent to
2 the period even if the claim resulted from an occurrence during
3 the period which was insured.
4 "Claims period." The period from September 1 to the
5 following August 31.
6 "Deficit." A joint underwriting association loss which
7 exceeds the sum of earned premiums collected by the joint
8 underwriting association and investment income.
9 "Department." The Insurance Department of the Commonwealth.
10 "Fund." The Medical Care Availability and Reduction of Error
11 (Mcare) Fund established in section 712.
12 "Fund coverage limits." The coverage provided by the Medical
13 Care Availability and Reduction of Error Fund under section 712.
14 "Government." The Government of the United States, any
15 state, any political subdivision of a state, any instrumentality
16 of one or more states, or any agency, subdivision, or department
17 of any such government, including any corporation or other
18 association organized by a government for the execution of a
19 government program and subject to control by a government, or
20 any corporation or agency established under an interstate
21 compact or international treaty.
22 "Health care business or practice." The number of patients
23 to whom health care services are rendered by a health care
24 provider within an annual period.
25 "Health care provider." A participating health care provider
26 or nonparticipating health care provider.
27 "Joint underwriting association." The Pennsylvania
28 Professional Liability Joint Underwriting Association
29 established in section 731.
30 "Joint underwriting association loss." The sum of the
20010H1802B3326 - 41 -
1 administrative expenses, taxes, losses, loss adjustment
2 expenses, unearned premiums and reserves, including reserves for
3 losses incurred and losses incurred but not reported, of the
4 joint underwriting association.
5 "Licensure authority." The State Board of Medicine, the
6 State Board of Osteopathic Medicine, the State Board of
7 Podiatry, the Department of Public Welfare and the Department of
8 Health.
9 "Medical professional liability insurance." Insurance
10 against liability on the part of a health care provider arising
11 out of any tort or breach of contract causing injury or death
12 resulting from the furnishing of medical services which were or
13 should have been provided.
14 "Nonparticipating health care provider." A health care
15 provider as defined in section 103 that conducts 20% or less of
16 its health care business or practice within this Commonwealth.
17 "Participating health care provider." A health care provider
18 as defined in section 103 that conducts more than 20% of its
19 health care business or practice within this Commonwealth or a
20 nonparticipating health care provider who chooses to participate
21 in the fund.
22 "Prevailing primary premium." The schedule of occurrence
23 rates approved by the commissioner for the joint underwriting
24 association.
25 SUBCHAPTER B
26 FUND
27 Section 711. Medical professional liability insurance.
28 (a) Requirement.--A health care provider providing health
29 care services in this Commonwealth shall:
30 (1) purchase medical professional liability insurance
20010H1802B3326 - 42 -
1 from an insurer which is licensed or approved by the
2 department; or
3 (2) provide self-insurance.
4 (b) Proof of insurance.--A health care provider required by
5 subsection (a) to purchase medical professional liability
6 insurance or provide self-insurance shall submit proof of
7 insurance or self-insurance to the department within 60 days of
8 the policy being issued.
9 (c) Failure to provide proof of insurance.--If a health care
10 provider fails to submit the proof of insurance or self-
11 insurance required by subsection (b), the department shall,
12 after providing the health care provider with notice, notify the
13 health care provider's licensing authority. A health care
14 provider's license shall be suspended or revoked by its
15 licensure board or agency if the health care provider fails to
16 comply with any of the provisions of this chapter.
17 (d) Basic coverage limits.--A health care provider shall
18 insure or self-insure medical professional liability in
19 accordance with the following:
20 (1) For policies issued or renewed in the calendar year
21 2002, the basic insurance coverage shall be:
22 (i) $500,000 per occurrence or claim and $1,500,000
23 per annual aggregate for a health care provider who
24 conducts more than 50% of its health care business or
25 practice within this Commonwealth and that is not a
26 hospital.
27 (ii) $500,000 per occurrence or claim and $1,500,000
28 per annual aggregate for a health care provider who
29 conducts 50% or less of its health care business or
30 practice within this Commonwealth.
20010H1802B3326 - 43 -
1 (iii) $500,000 per occurrence or claim and
2 $2,500,000 per annual aggregate for a hospital.
3 (2) For policies issued or renewed in the calendar years
4 2003, 2004 and 2005, the basic insurance coverage shall be:
5 (i) $500,000 per occurrence or claim and $1,500,000
6 per annual aggregate for a participating health care
7 provider that is not a hospital.
8 (ii) $1,000,000 per occurrence or claim and
9 $3,000,000 per annual aggregate for a nonparticipating
10 health care provider.
11 (iii) $500,000 per occurrence or claim and
12 $2,500,000 per annual aggregate for a hospital.
13 (3) Unless the commissioner finds pursuant to section
14 745(a) that additional basic insurance coverage capacity is
15 not available, for policies issued or renewed in calendar
16 year 2006, and each year thereafter subject to paragraph (4),
17 the basic insurance coverage shall be:
18 (i) $750,000 per occurrence or claim and $2,250,000
19 per annual aggregate for a participating health care
20 provider that is not a hospital.
21 (ii) $1,000,000 per occurrence or claim and
22 $3,000,000 per annual aggregate for a nonparticipating
23 health care provider.
24 (iii) $750,000 per occurrence or claim and
25 $3,750,000 per annual aggregate for a hospital.
26 If the commissioner finds pursuant to section 745(a) that
27 additional basic insurance coverage capacity is not
28 available, the basic insurance coverage requirements shall
29 remain at the level required by paragraph (2); and the
30 commissioner shall conduct a study every two years until the
20010H1802B3326 - 44 -
1 commissioner finds that additional basic insurance coverage
2 capacity is available, at which time the commissioner shall
3 increase the required basic insurance coverage in accordance
4 with this paragraph.
5 (4) Unless the commissioner finds pursuant to section
6 745(b) that additional basic insurance coverage capacity is
7 not available, for policies issued or renewed three years
8 after the increase in coverage limits required by paragraph
9 (3), and for each year thereafter, the basic insurance
10 coverage shall be:
11 (i) $1,000,000 per occurrence or claim and
12 $3,000,000 per annual aggregate for a participating
13 health care provider that is not a hospital.
14 (ii) $1,000,000 per occurrence or claim and
15 $3,000,000 per annual aggregate for a nonparticipating
16 health care provider.
17 (iii) $1,000,000 per occurrence or claim and
18 $4,500,000 per annual aggregate for a hospital.
19 If the commissioner finds pursuant to section 745(b) that
20 additional basic insurance coverage capacity is not
21 available, the basic insurance coverage requirements shall
22 remain at the level required by paragraph (3); and the
23 commissioner shall conduct a study every two years until the
24 commissioner finds that additional basic insurance coverage
25 capacity is available, at which time the commissioner shall
26 increase the required basic insurance coverage in accordance
27 with this paragraph.
28 (e) Fund participation.--A participating health care
29 provider shall be required to participate in the fund.
30 (f) Self-insurance.--
20010H1802B3326 - 45 -
1 (1) If a health care provider self-insures its medical
2 professional liability, the health care provider shall submit
3 its self-insurance plan, such additional information as the
4 department may require and the examination fee to the
5 department for approval.
6 (2) The department shall approve the plan if it
7 determines that the plan constitutes protection equivalent to
8 the insurance required of a health care provider under
9 subsection (d).
10 (g) Basic insurance liability.--
11 (1) An insurer providing medical professional liability
12 insurance shall not be liable for payment of a claim against
13 a health care provider for any loss or damages awarded in a
14 medical professional liability action in excess of the basic
15 insurance coverage required by subsection (d) unless the
16 health care provider's medical professional liability
17 insurance policy or self-insurance plan provides for a higher
18 limit.
19 (2) If a claim exceeds the limits of a participating
20 health care provider's basic insurance coverage or self-
21 insurance plan, the fund shall be responsible for payment of
22 the claim against the participating health care provider up
23 to the fund liability limits.
24 (h) Excess insurance.--
25 (1) No insurer providing medical professional liability
26 insurance with liability limits in excess of the fund's
27 liability limits to a participating health care provider
28 shall be liable for payment of a claim against the
29 participating health care provider for a loss or damages in a
30 medical professional liability action, except the losses and
20010H1802B3326 - 46 -
1 damages in excess of the fund coverage limits.
2 (2) No insurer providing medical professional liability
3 insurance with liability limits in excess of the fund's
4 liability limits to a participating health care provider
5 shall be liable for any loss resulting from the insolvency or
6 dissolution of the fund.
7 (i) Governmental entities.--A governmental entity may
8 satisfy its obligations under this chapter, as well as the
9 obligations of its employees to the extent of their employment,
10 by either purchasing medical professional liability insurance or
11 assuming an obligation as a self-insurer, and paying the
12 assessments under this chapter.
13 (j) Exemptions.--The following participating health care
14 providers shall be exempt from this chapter:
15 (1) A physician who exclusively practices the specialty
16 of forensic pathology.
17 (2) A participating health care provider who is a member
18 of the Pennsylvania military forces while in the performance
19 of the member's assigned duty in the Pennsylvania military
20 forces under orders.
21 (3) A retired licensed participating health care
22 provider who provides care only to the provider or the
23 provider's immediate family members.
24 Section 712. Medical Care Availability and Reduction of Error
25 Fund.
26 (a) Establishment.--There is hereby established within the
27 State Treasury a special fund to be known as the Medical Care
28 Availability and Reduction of Error Fund. Money in the fund
29 shall be used to pay claims against participating health care
30 providers for losses or damages awarded in medical professional
20010H1802B3326 - 47 -
1 liability actions against them in excess of the basic insurance
2 coverage required by section 711(d), liabilities transferred in
3 accordance with subsection (b) and for the administration of the
4 fund.
5 (b) Transfer of assets and liabilities.--
6 (1) (i) The money in the Medical Professional Liability
7 Catastrophe Loss Fund established under section 701(d) of
8 the former act of October 15, 1975 (P.L.390, No.111),
9 known as the Health Care Services Malpractice Act, is
10 transferred to the fund.
11 (ii) The rights of the Medical Professional
12 Liability Catastrophe Loss Fund established under section
13 701(d) of the former Health Care Services Malpractice Act
14 are transferred to and assumed by the fund.
15 (2) The liabilities and obligations of the Medical
16 Professional Liability Catastrophe Loss Fund established
17 under section 701(d) of the former Health Care Services
18 Malpractice Act are transferred to and assumed by the fund.
19 (c) Fund liability limits.--
20 (1) For calendar year 2002, the limit of liability of
21 the fund created in section 701(d) of the former Health Care
22 Services Malpractice Act, for each health care provider that
23 conducts more than 50% of its health care business or
24 practice within this Commonwealth and for each hospital shall
25 be $700,000 for each occurrence and $2,100,000 per annual
26 aggregate.
27 (2) The limit of liability of the fund for each
28 participating health care provider shall be as follows:
29 (i) For calendar year 2003, and each year
30 thereafter, the limit of liability of the fund shall be
20010H1802B3326 - 48 -
1 $500,000 for each occurrence and $1,500,000 per annual
2 aggregate.
3 (ii) If the basic insurance coverage requirement is
4 increased in accordance with section 711(d)(3) and,
5 notwithstanding subparagraph (i), for each calendar year
6 following the increase in the basic insurance coverage
7 requirement, the limit of liability of the fund shall be
8 $250,000 for each occurrence and $750,000 per annual
9 aggregate.
10 (iii) If the basic insurance coverage requirement is
11 increased in accordance with section 711(d)(4) and,
12 notwithstanding subparagraphs (i) and (ii), for each
13 calendar year following the increase in the basic
14 insurance coverage requirement, the limit of liability of
15 the fund shall be zero.
16 (d) Assessments.--
17 (1) For calendar year 2003, and for each year
18 thereafter, the fund shall be funded by an assessment on each
19 participating health care provider. Assessments shall be
20 levied by the department on or after January 1 of each year.
21 The assessment shall be based on the prevailing primary
22 premium for each participating health care provider and
23 shall, in the aggregate, produce an amount sufficient to do
24 all of the following:
25 (i) Reimburse the fund for the payment of reported
26 claims which became final during the preceding claims
27 period.
28 (ii) Pay expenses of the fund incurred during the
29 preceding claims period.
30 (iii) Pay principal and interest on moneys
20010H1802B3326 - 49 -
1 transferred into the fund in accordance with section
2 713(c).
3 (iv) Provide a reserve that shall be 10% of the sum
4 of subparagraphs (i), (ii) and (iii).
5 (2) The department shall notify all basic insurance
6 coverage insurers and self-insured participating health care
7 providers of the assessment by November 1 for the succeeding
8 calendar year.
9 (3) Any appeal of the assessment shall be filed with the
10 department.
11 (e) Discount on surcharges and assessments.--
12 (1) For calendar year 2002, the department shall
13 discount the aggregate surcharge imposed under section
14 701(e)(1) of the Health Care Services Malpractice Act for the
15 calendar year by 5% of the aggregate surcharge imposed under
16 the section for calendar year 2001. The department shall
17 issue a credit to a participating health care provider who
18 has paid the surcharge imposed under section 701(e)(1) of the
19 Health Care Services Malpractice Act for calendar year 2002,
20 prior to the effective date of this section.
21 (2) For calendar years 2003 and 2004, the department
22 shall discount the aggregate assessment imposed under
23 subsection (d) for each calendar year by 10% of the aggregate
24 surcharge imposed under section 701(e)(1) of the Health Care
25 Services Malpractice Act for calendar year 2001.
26 (f) Updated rates.--The joint underwriting association shall
27 file updated rates for all health care providers with the
28 commissioner by May 1 of each year. The department shall review
29 and may adjust the prevailing primary premium in line with any
30 applicable changes which have been approved by the commissioner.
20010H1802B3326 - 50 -
1 (g) Additional adjustments of the prevailing primary
2 premium.--Using the class system of the joint underwriting <--
3 association, the department shall adjust the prevailing primary
4 premium to reduce the number of classes to no more than eight
5 for purposes of calculating the assessment. The department shall
6 adjust the applicable prevailing primary premium of each
7 participating health care provider in accordance with the
8 following:
9 (1) The applicable prevailing primary premium of a
10 participating health care provider which is not a hospital
11 may be adjusted through an increase in the individual
12 participating health care provider's prevailing primary
13 premium not to exceed 20%. Any adjustment shall be based upon
14 the frequency of claims paid by the fund on behalf of the
15 individual participating health care provider during the past
16 five most recent claims periods and shall be in accordance
17 with the following:
18 (i) If three claims have been paid during the past
19 five most recent claims periods by the fund, a 10%
20 increase shall be charged.
21 (ii) If four or more claims have been paid during
22 the past five most recent claims periods by the fund, a
23 20% increase shall be charged.
24 (2) The applicable prevailing primary premium of a
25 participating health care provider which is not a hospital
26 and which has not had an adjustment under paragraph (1) may
27 be adjusted through an increase in the individual
28 participating health care provider's prevailing primary
29 premium not to exceed 20%. Any adjustment shall be based upon
30 the severity of at least two claims paid by the fund on
20010H1802B3326 - 51 -
1 behalf of the individual participating health care provider
2 during the past five most recent claims periods.
3 (3) The applicable prevailing primary premium of a
4 participating health care provider not engaged in direct
5 clinical practice on a full-time basis may be adjusted
6 through a decrease in the individual participating health
7 care provider's prevailing primary premium not to exceed 10%.
8 Any adjustment shall be based upon the lower risk associated
9 with the less-than-full-time direct clinical practice.
10 (4) The applicable prevailing primary premium of a
11 hospital may be adjusted through an increase or decrease in
12 the individual hospital's prevailing primary premium not to
13 exceed 20%. Any adjustment shall be based upon the frequency
14 and severity of claims paid by the fund on behalf of other
15 hospitals of similar class, size, risk and kind within the
16 same defined region during the past five most recent claims
17 periods.
18 (h) Self-insured health care providers.--A participating
19 health care provider that has an approved self-insurance plan
20 shall be assessed an amount equal to the assessment imposed on a
21 participating health care provider of like class, size, risk and
22 kind as determined by the department.
23 (i) Change in basic insurance coverage.--If a participating
24 health care provider changes the term of its medical
25 professional liability insurance coverage, the assessment shall
26 be calculated on an annual basis and shall reflect the
27 assessment percentages in effect for the period over which the
28 policies are in effect.
29 (j) Payment of claims.--Claims which became final during the
30 preceding claims period shall be paid on or before December 31
20010H1802B3326 - 52 -
1 following the August 31 on which they became final.
2 (k) Termination.--Upon satisfaction of all liabilities of
3 the fund, the fund shall terminate. Any balance remaining in the
4 fund upon such termination shall be returned by the department
5 to the participating health care providers who participated in
6 the fund in proportion to their assessments in the preceding
7 calendar year.
8 (l) Sole and exclusive source of funding.--Except as
9 provided in subsection (m), the surcharges imposed under section
10 701(e)(1) of the Health Care Services Malpractice Act and
11 assessments on participating health care providers and any
12 income realized by investment or reinvestment shall constitute
13 the sole and exclusive sources of funding for the fund. Nothing
14 in this subsection shall prohibit the fund from accepting
15 contributions from nongovernmental sources. A claim against or a
16 liability of the fund shall not be deemed to constitute a debt
17 or liability of the Commonwealth or a charge against the General
18 Fund.
19 (m) Supplemental funding.--Notwithstanding the provisions of
20 75 Pa.C.S. § 6506(b) (relating to surcharge) to the contrary,
21 beginning January 1, 2004, and for a period of nine calendar
22 years thereafter, all surcharges levied and collected under 75
23 Pa.C.S. § 6506(a) by any division of the unified judicial system
24 shall be remitted to the Commonwealth for deposit in the Medical
25 Care Availability and Restriction of Error Fund. Beginning
26 January 1, 2014, and each year thereafter, the surcharges levied
27 and collected under 75 Pa.C.S. § 6506(a) shall be deposited into
28 the General Fund.
29 (n) Waiver of right to consent to settlement.--A
30 participating health care provider may maintain the right to
20010H1802B3326 - 53 -
1 consent to a settlement in a basic insurance coverage policy for
2 medical professional liability insurance upon the payment of an
3 additional premium amount.
4 Section 713. Administration of fund.
5 (a) General rule.--The fund shall be administered by the
6 department. The department shall contract with an entity or
7 entities for the administration of claims against the fund in
8 accordance with 62 Pa.C.S. (relating to procurement) and, to the
9 fullest extent practicable, the department shall contract with
10 entities that:
11 (1) Are not writing, underwriting or brokering medical
12 professional liability insurance for participating health
13 care providers, however, the department may contract with a
14 subsidiary or affiliate of any writer, underwriter or broker
15 of medical professional liability insurance.
16 (2) Are not trade organizations or associations
17 representing the interests of participating health care
18 providers in this Commonwealth.
19 (3) Have demonstrable knowledge of and experience in the
20 handling and adjusting of professional liability or other
21 catastrophic claims.
22 (4) Have developed, instituted and utilized best
23 practice standards and systems for the handling and adjusting
24 of professional liability or other catastrophic claims.
25 (5) Have demonstrable knowledge of and experience with
26 the professional liability marketplace and the judicial
27 systems of this Commonwealth.
28 (b) Reinsurance.--The department may purchase, on behalf of
29 and in the name of the fund, as much insurance or reinsurance as
30 is necessary to preserve the fund or retire the liabilities of
20010H1802B3326 - 54 -
1 the fund.
2 (c) Transfers.--The Governor may transfer to the fund from
3 the Catastrophic Loss Benefits Continuation Fund, or such other
4 funds as may be appropriate, such money as is necessary in order
5 to pay the liabilities of the fund until sufficient revenues are
6 realized by the fund. Any Transfer made under this subsection
7 shall be repaid pursuant to section 2 of the act of August 22,
8 1961 (P.L.1049, No.479), entitled "An act authorizing the State
9 Treasurer under certain conditions to transfer sums of money
10 between the General Fund and certain funds and subsequent
11 transfers of equal sums between such funds, and making
12 appropriations necessary to effect such transfers."
13 (d) Confidentiality.--Information provided to the department
14 or maintained by the department regarding a claim or adjustments
15 to an individual participating health care provider's assessment
16 shall be confidential, notwithstanding the act of June 21, 1957
17 (P.L.390, No.212), referred to as the Right-to-Know Law, or 65
18 Pa.C.S. Ch. 7 (relating to open meetings).
19 Section 714. Medical professional liability claims.
20 (a) Notification.--A basic coverage insurer or self-insured
21 participating health care provider shall promptly notify the
22 department in writing of any medical professional liability
23 claim.
24 (b) Failure to notify.--If a basic coverage insurer or self-
25 insured participating health care provider fails to notify the
26 department as required under subsection (a) and the department
27 has been prejudiced by the failure of notice, the insurer or
28 provider shall be solely responsible for the payment of the
29 entire award or verdict that results from the medical
30 professional liability claim.
20010H1802B3326 - 55 -
1 (c) Defense.--A basic coverage insurer or self-insured
2 participating health care provider shall provide a defense to a
3 medical professional liability claim, including a defense of any
4 potential liability of the fund, except as provided for in
5 section 715. The department may join in the defense and be
6 represented by counsel.
7 (d) Responsibilities.--In accordance with section 713, the
8 department may defend, litigate, settle or compromise any
9 medical professional liability claim payable by the fund.
10 (e) Releases.--In the event that a basic coverage insurer or
11 self-insured participating health care provider enters into a
12 settlement with a claimant to the full extent of its liability
13 as provided in this chapter, it may obtain a release from the
14 claimant to the extent of its payment, which payment shall have
15 no effect upon any claim against the fund or its duty to
16 continue the defense of the claim.
17 (f) Adjustment.--The department may adjust claims.
18 (g) Mediation.--Upon the request of a party to a medical
19 professional liability claim within the fund coverage limits,
20 the department may provide for a mediator in instances where
21 multiple carriers disagree on the disposition or settlement of a
22 case. Upon the consent of all parties, the mediation shall be
23 binding. Proceedings conducted and information provided in
24 accordance with this section shall be confidential and shall not
25 be considered public information subject to disclosure under the
26 act of June 21, 1957 (P.L.390, No.212), referred to as the
27 Right-to-Know Law or 65 Pa.C.S. Ch. 7 (relating to open
28 meetings).
29 (h) Delay damages and postjudgment interest.--Delay damages
30 and postjudgment interest applicable to the fund's liability on
20010H1802B3326 - 56 -
1 a medical professional liability claim shall be paid by the fund
2 and shall not be charged against the participating health care
3 provider's annual aggregate limits. The basic coverage insurer
4 or self-insured participating health care provider shall be
5 responsible for its proportionate share of delay damages and
6 postjudgment interest.
7 Section 715. Extended claims.
8 (a) General rule.--If a medical professional liability claim
9 against a health care provider who was required to participate
10 in the Medical Professional Liability Catastrophe Loss Fund
11 under section 701(d) of the act of October 15, 1975 (P.L.390,
12 No.111), known as the Health Care Services Malpractice Act, is
13 made more than four years after the breach of contract or tort
14 occurred and if the claim is filed within the applicable statute
15 of limitations, the claim shall be defended by the department if
16 the department received a written request for indemnity and
17 defense within 180 days of the date on which notice of the claim
18 is first given to the participating health care provider or its
19 insurer. Where multiple treatments or consultations took place
20 less than four years before the date on which the health care
21 provider or its insurer received notice of the claim, the claim
22 shall be deemed, for purposes of this section, to have occurred
23 less than four years prior to the date of notice and shall be
24 defended by the insurer in accordance with this chapter.
25 (b) Payment.--If a health care provider is found liable for
26 a claim defended by the department in accordance with subsection
27 (a), the claim shall be paid by the fund. The limit of liability
28 of the fund for a claim defended by the department under
29 subsection (a) shall be $1,000,000 per occurrence.
30 (c) Concealment.--If a claim is defended by the department
20010H1802B3326 - 57 -
1 under subsection (a) or paid under subsection (b), and the claim
2 is made after four years because of the willful concealment by
3 the health care provider or its insurer, the fund shall have the
4 right to full indemnity including the department's defense costs
5 from the health care provider or its insurer.
6 (d) Extended coverage required.--Notwithstanding subsections
7 (a), (b) and (c), all medical professional liability insurance
8 policies issued on or after January 1, 2006, shall provide
9 indemnity and defense for claims asserted against a health care
10 provider for a breach of contract or tort which occurs four or
11 more years after the breach of contract or tort occurred and
12 after December 31, 2005.
13 Section 716. Podiatrist liability.
14 Within two years of the effective date of this chapter, the
15 department shall calculate the amount necessary to arrange for
16 the separate retirement of the fund's liabilities associated
17 with podiatrists. Any arrangement shall be on terms and
18 conditions proportionate to the individual liability of the
19 class of health care provider. The arrangement may result in
20 assessments for podiatrists different from the assessments for
21 other health care providers. Upon satisfaction of the
22 arrangement, podiatrists shall not be required to contribute to
23 or be entitled to participate in the fund. In cases where the
24 class rejects an arrangement, the department shall present to
25 the provider class new term arrangements at least once in every
26 two-year period. All costs and expenses associated with the
27 completion and implementation of the arrangement shall be paid
28 by podiatrists and may be charged in the form of an addition to
29 the assessment.
30 SUBCHAPTER C
20010H1802B3326 - 58 -
1 JOINT UNDERWRITING ASSOCIATION
2 Section 731. Joint underwriting association.
3 (a) Establishment.--There is established a nonprofit joint
4 underwriting association to be known as the Pennsylvania
5 Professional Liability Joint Underwriting Association. The joint
6 underwriting association shall consist of all insurers
7 authorized to write insurance in accordance with section
8 202(c)(4) and (11) of the act of May 17, 1921 (P.L.682, No.284),
9 known as The Insurance Company Law of 1921, and shall be
10 supervised by the department. The powers and duties of the joint
11 underwriting association shall be vested in and exercised by a
12 board of directors.
13 (b) Duties.--The joint underwriting association shall do all
14 of the following:
15 (1) Submit a plan of operation to the commissioner for
16 approval.
17 (2) Submit rates and any rate modification to the
18 department for approval in accordance with the act of June
19 11, 1947 (P.L.538, No.246), known as The Casualty and Surety
20 Rate Regulatory Act.
21 (3) Offer medical professional liability insurance to
22 health care providers in accordance with section 732.
23 (4) File with the department the information required in
24 section 712.
25 (c) Liabilities.--A claim against or a liability of the
26 joint underwriting association shall not be deemed to constitute
27 a debt or liability of the Commonwealth or a charge against the
28 General Fund.
29 Section 732. Medical professional liability insurance.
30 (a) Insurance.--The joint underwriting association shall
20010H1802B3326 - 59 -
1 offer medical professional liability insurance to health care
2 providers and professional corporations, professional
3 associations and partnerships which are entirely owned by health
4 care providers who cannot conveniently obtain medical
5 professional liability insurance through ordinary methods at
6 rates not in excess of those applicable to similarly situated
7 health care providers, professional corporations, professional
8 associations or partnerships.
9 (b) Requirements.--The joint underwriting association shall
10 ensure that the medical professional liability insurance it
11 offers does all of the following:
12 (1) Is conveniently and expeditiously available to all
13 health care providers required to be insured under section
14 711.
15 (2) Is subject only to the payment or provisions for
16 payment of the premium.
17 (3) Provides reasonable means for the health care
18 providers it insures to transfer to the ordinary insurance
19 market.
20 (4) Provides sufficient coverage for a health care
21 provider to satisfy its insurance requirements under section
22 711 on reasonable and not unfairly discriminatory terms.
23 (5) Permits a health care provider to finance its
24 premium or allows installment payment of premiums subject to
25 customary terms and conditions.
26 Section 733. Deficit.
27 (a) Filing.--In the event the joint underwriting association
28 experiences a deficit in any calendar year, the board of
29 directors shall file with the commissioner the deficit.
30 (b) Approval.--Within 30 days of receipt of the filing, the
20010H1802B3326 - 60 -
1 commissioner shall approve or deny the filing. If approved, the
2 joint underwriting association is authorized to borrow funds
3 sufficient to satisfy the deficit.
4 (c) Rate filing.--Within 30 days of receiving approval of
5 its filing in accordance with subsection (b), the joint
6 underwriting association shall file a rate filing with the
7 department. The commissioner shall approve the filing if the
8 premiums generate sufficient income for the joint underwriting
9 association to avoid a deficit during the following 12 months
10 and to repay principal and interest on the money borrowed in
11 accordance with subsection (b).
12 SUBCHAPTER D
13 REGULATION OF MEDICAL PROFESSIONAL
14 LIABILITY INSURANCE
15 Section 741. Approval.
16 In order for an insurer to issue a policy of medical
17 professional liability insurance to a health care provider or to
18 a professional corporation, professional association or
19 partnership which is entirely owned by health care providers,
20 the insurer must be authorized to write medical professional
21 liability insurance in accordance with the act of May 17, 1921
22 (P.L.682, No.284), known as The Insurance Company Law of 1921.
23 Section 742. Approval of policies on "claims made" basis.
24 The commissioner shall not approve a medical professional
25 liability insurance policy written on a "claims made" basis by
26 any insurer doing business in this Commonwealth unless the
27 insurer shall guarantee to the commissioner the continued
28 availability of suitable liability protection for a health care
29 provider subsequent to the discontinuance of professional
30 practice by the health care provider or the termination of the
20010H1802B3326 - 61 -
1 insurance policy by the insurer or the health care provider for
2 so long as there is a reasonable probability of a claim for
3 injury for which the health care provider may be held liable.
4 Section 743. Reports to commissioner and claims information.
5 (a) Duty to report.--By October 15 of each year, basic
6 insurance coverage insurers and self-insured participating
7 health care providers shall report to the department the claims
8 information specified in subsection (b).
9 (b) Department report.--Sixty days after the end of each
10 calendar year, the department shall prepare a report. The report
11 shall contain the total amount of claims paid and expenses
12 incurred during the preceding calendar year, the total amount of
13 reserve set aside for future claims, the date and place in which
14 each claim arose, the amounts paid, if any, and the disposition
15 of each claim, judgment of court, settlement or otherwise. For
16 final claims at the end of any calendar year, the report shall
17 include details by basic insurance coverage insurers and self-
18 insured participating health care providers of the amount of
19 assessment collected, the number of reimbursements paid and the
20 amount of reimbursements paid.
21 (c) Submission of report.--A copy of the report prepared
22 pursuant to this section shall be submitted to the chairman and
23 minority chairman of the Banking and Insurance Committee of the
24 Senate and the chairman and minority chairman of the Insurance
25 Committee of the House of Representatives.
26 Section 744. Professional corporations, professional
27 associations and partnerships.
28 A professional corporation, professional association or
29 partnership which is entirely owned by health care providers and
30 which elects to purchase basic insurance coverage in accordance
20010H1802B3326 - 62 -
1 with section 711 from the joint underwriting association or from
2 an insurer licensed or approved by the department shall be
3 required to participate in the fund and, upon payment of the
4 assessment required by section 712, be entitled to coverage from
5 the fund.
6 Section 745. Actuarial data.
7 (a) Initial study.--The following shall apply:
8 (1) No later than April 1, 2005, each insurer providing
9 medical professional liability insurance in this Commonwealth
10 shall file loss data as required by the commissioner. For
11 failure to comply, the commissioner shall impose an
12 administrative penalty of $1,000 for every day that this data
13 is not provided in accordance with this paragraph.
14 (2) By July 1, 2005, the commissioner shall conduct a
15 study regarding the availability of additional basic
16 insurance coverage capacity. The study shall include an
17 estimate of the total change in medical professional
18 liability insurance loss-cost resulting from implementation
19 of this act prepared by an independent actuary. The fee for
20 the independent actuary shall be borne by the fund. In
21 developing the estimate, the independent actuary shall
22 consider all of the following:
23 (i) The most recent accident year and ratemaking
24 data available.
25 (ii) Any other relevant factors within or outside
26 this Commonwealth in accordance with sound actuarial
27 principles.
28 (b) Additional study.--The following shall apply:
29 (1) Three years following the increase of the basic
30 insurance coverage requirement in accordance with section
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1 711(d)(3), each insurer providing medical professional
2 liability insurance in this Commonwealth shall file loss data
3 with the commissioner upon request. For failure to comply,
4 the commissioner shall impose an administrative penalty of
5 $1,000 for every day that this data is not provided in
6 accordance with this paragraph.
7 (2) Three months following the request made under
8 paragraph (1), the commissioner shall conduct a study
9 regarding the availability of additional basic insurance
10 coverage capacity. The study shall include an estimate of the
11 total change in medical professional liability insurance
12 loss-cost resulting from implementation of this act prepared
13 by an independent actuary. The fee for the independent
14 actuary shall be borne by the fund. In developing the
15 estimate, the independent actuary shall consider all of the
16 following:
17 (i) The most recent accident year and ratemaking
18 data available.
19 (ii) Any other relevant factors within or outside
20 this Commonwealth in accordance with sound actuarial
21 principles.
22 Section 746. Mandatory reporting.
23 (a) General provisions.--Each medical professional liability
24 insurer and each self-insured health care provider, including
25 the fund established by this chapter, which makes payment in
26 settlement, or in partial settlement of, or in satisfaction of a
27 judgment in a medical professional liability action or claim
28 shall provide to the appropriate licensure board a true and
29 correct copy of the report required to be filed with the Federal
30 Government by section 421 of the Health Care Quality Improvement
20010H1802B3326 - 64 -
1 Act of 1986 (Public Law 99-660, 42 U.S.C. § 11131). The copy of
2 the report required by this section shall be filed
3 simultaneously with the report required by section 421 of the
4 Health Care Quality Improvement Act of 1986. The department
5 shall monitor and enforce compliance with this section. The
6 Bureau of Professional and Occupational Affairs and the
7 licensure boards shall have access to information pertaining to
8 compliance.
9 (b) Immunity.--A medical professional liability insurer or
10 person who reports under subsection (a) in good faith and
11 without malice shall be immune from civil or criminal liability
12 arising from the report.
13 (c) Public information.--Information received under this
14 section shall not be considered public information for the
15 purposes of the act of June 21, 1957 (P.L.390, No.212), referred
16 to as the Right-to-Know Law or 65 Pa.C.S. Ch. 7 (relating to
17 open meetings), until used in a formal disciplinary proceeding.
18 Section 747. Cancellation of insurance policy.
19 A termination of a medical professional liability insurance
20 policy by cancellation, except for suspension or revocation of
21 the insured's license or for reason of nonpayment of premium, is
22 not effective against the insured, unless notice of cancellation
23 was given within 60 days after the issuance of the policy to the
24 insured and no cancellation shall take effect unless a written
25 notice stating the reasons for the cancellation and the date and
26 time upon which the termination becomes effective has been
27 received by the commissioner. Mailing of the notice to the
28 commissioner at the commissioner's principal office address
29 shall constitute notice to the commissioner.
30 Section 748. Regulations.
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1 The commissioner may promulgate regulations to implement and
2 administer this chapter.
3 CHAPTER 9
4 ADMINISTRATIVE PROVISIONS
5 Section 901. Scope.
6 (a) General rule.--
7 (1) Except as set forth in subsection (b), this chapter
8 is in pari materia with:
9 (i) the act of October 5, 1978 (P.L.1109, No.261),
10 known as the Osteopathic Medical Practice Act; and
11 (ii) the act of December 20, 1985 (P.L.457, No.112),
12 known as the Medical Practice Act of 1985.
13 (2) No duplication of procedure is required between this
14 chapter and either:
15 (i) the Osteopathic Medical Practice Act; or
16 (ii) the Medical Practice Act of 1985.
17 (b) Conflict.--This chapter shall prevail if there is a
18 conflict between this chapter and either:
19 (1) the Osteopathic Medical Practice Act; or
20 (2) the Medical Practice Act of 1985.
21 Section 902. Definitions.
22 The following words and phrases when used in this chapter
23 shall have the meanings given to them in this section unless the
24 context clearly indicates otherwise:
25 "Licensure board." Either or both of the following,
26 depending on the licensure of the affected individual:
27 (1) The State Board of Medicine.
28 (2) The State Board of Osteopathic Medicine.
29 "Physician." An individual licensed under the laws of this
30 Commonwealth to engage in the practice of:
20010H1802B3326 - 66 -
1 (1) medicine and surgery in all its branches, within the
2 scope of the act of December 20, 1985 (P.L.457, No.112),
3 known as the Medical Practice Act of 1985; or
4 (2) osteopathic medicine and surgery, within the scope
5 of the act of October 5, 1978 (P.L.1109, No.261), known as
6 the Osteopathic Medical Practice Act.
7 Section 903. Reporting.
8 A physician shall report to the State Board of Medicine or
9 the State Board of Osteopathic Medicine, as appropriate, within
10 60 days of the occurrence of any of the following:
11 (1) Notice of a complaint in a medical professional
12 liability action that is filed against the physician. The
13 physician shall provide the docket number of the case, where
14 the case is filed and a description of the allegations in the
15 complaint.
16 (2) Information regarding disciplinary action taken
17 against the physician by a health care licensing authority of
18 another state.
19 (3) Information regarding sentencing of the physician
20 for an offense as provided in section 15 of the act of
21 October 5, 1978 (P.L.1109, No.261), known as the Osteopathic
22 Medical Practice Act, or section 41 of the act of December
23 20, 1985 (P.L.457, No.112), known as the Medical Practice Act
24 of 1985.
25 (4) Information regarding an arrest of the physician for
26 any of the following offenses in this Commonwealth or another
27 state:
28 (i) 18 Pa.C.S. Ch. 25 (relating to criminal
29 homicide);
30 (ii) 18 Pa.C.S. § 2702 (relating to aggravated
20010H1802B3326 - 67 -
1 assault); or
2 (iii) 18 Pa.C.S. Ch. 31 (relating to sexual
3 offenses).
4 (iv) A violation of the act of April 14, 1972
5 (P.L.233, No.64), known as The Controlled Substance,
6 Drug, Device and Cosmetic Act.
7 Section 904. Commencement of investigation and action.
8 (a) Investigations by licensure board.--With regard to
9 notices of complaints received pursuant to section 903(1), or a
10 complaint filed with the licensure board, the licensure board
11 shall develop criteria and standards for review based on the
12 frequency and severity of complaints filed against a physician.
13 Any investigation of a physician based upon a complaint must be
14 commenced no more than four years from the date notice of the
15 complaint is received under section 903(1).
16 (b) Action by licensure board.--Unless an investigation has
17 already been initiated pursuant to subsection (a), an action
18 against a physician must be commenced by the licensure board no
19 more than four years from the time the licensure board receives
20 the earliest of any of the following:
21 (1) Notice that a payment against the physician has been
22 reported to the National Practitioner Data Bank.
23 (2) Notice that a payment in a medical professional
24 liability action against the physician has been reported to
25 the licensure board by an insurer.
26 (3) Notice of a report made pursuant to section 903(2),
27 (3) or (4).
28 (c) Laches.--The defense of laches is unavailable if the
29 licensure board complies with this section.
30 (d) Applicability.--This section shall apply to actions
20010H1802B3326 - 68 -
1 against a physician initiated on or after the effective date of
2 this chapter.
3 Section 905. Action on negligence.
4 If the licensure board determines, based on actions taken
5 pursuant to section 904, that a physician has practiced
6 negligently, the licensure board may impose disciplinary
7 sanctions or corrective measures.
8 Section 906. Confidentiality agreements.
9 (a) Confidentiality agreements.--Upon settlement of a
10 medical professional liability action containing a
11 confidentiality agreement or upon a court order sealing the
12 settlement and related records for purposes of confidentiality,
13 the agreement or order shall not be operable against the
14 licensure board to obtain copies of medical records of the
15 patient on whose behalf the action is commenced. Prior to
16 obtaining medical records under this subsection, the licensure
17 board must obtain the consent of the patient or the patient's
18 legal representative.
19 (b) Applicability.--The addition of subsection (a) shall
20 apply to settlements entered into and court orders issued on or
21 after the effective date of this chapter.
22 Section 907. Confidentiality of records of licensure boards.
23 (a) General rule.--All documents, materials or information
24 utilized solely for an investigation undertaken by the State
25 Board of Medicine or State Board of Osteopathic Medicine or
26 concerning a complaint filed with the State Board of Medicine or
27 State Board of Osteopathic Medicine shall be confidential and
28 privileged. No person who has investigated or has access to or
29 custody of documents, materials or information which are
30 confidential and privileged under this subsection shall be
20010H1802B3326 - 69 -
1 required to testify in any judicial or administrative proceeding
2 without the written consent of the State Board of Medicine or
3 State Board of Osteopathic Medicine. This subsection shall not
4 preclude or limit introduction of the contents of an
5 investigative file or related witness testimony in a hearing or
6 proceeding held before the State Board of Medicine or State
7 Board of Osteopathic Medicine. This subsection shall not apply
8 to letters to a licensee that disclose the final outcome of an
9 investigation or to final adjudications or orders issued by the
10 licensure board.
11 (b) Certain disclosure permitted.--Except as provided in
12 subsection (a), this section shall not prevent disclosure of any
13 documents, materials or information pertaining to the status of
14 a license, permit or certificate issued or prepared by the State
15 Board of Medicine or State Board of Osteopathic Medicine or
16 relating to a public disciplinary proceeding or hearing.
17 Section 908. Licensure board-imposed civil penalty.
18 In addition to any other civil remedy or criminal penalty
19 provided for in this act, the act of December 20, 1985 (P.L.457,
20 No.112), known as the Medical Practice Act of 1985 or the act of
21 October 5, 1978 (P.L.1109, No.261), known as the Osteopathic
22 Medical Practice Act, the State Board of Medicine and the State
23 Board of Osteopathic Medicine, by a vote of the majority of the
24 maximum number of the authorized membership of each board as
25 provided by law, or by a vote of the majority of the duly
26 qualified and confirmed membership or a minimum of five members,
27 whichever is greater, may levy a civil penalty of up to $10,000
28 on any current licensee who violates any provision of this act,
29 the Medical Practice Act of 1985 or the Osteopathic Medical
30 Practice Act or on any person who practices medicine or
20010H1802B3326 - 70 -
1 osteopathic medicine without being properly licensed to do so
2 under the Medical Practice Act of 1985 or the Osteopathic
3 Medical Practice Act. The boards shall levy this penalty only
4 after affording the accused party the opportunity for a hearing,
5 as provided in 2 Pa.C.S. (relating to administrative law and
6 procedure).
7 Section 909. Licensure board report.
8 (a) Annual report.--Each licensure board shall submit a
9 report not later than March 1 of each year to the chair and the
10 minority chair of the Consumer Protection and Professional
11 Licensure Committee of the Senate and to the chair and minority
12 chair of the Professional Licensure Committee of the House of
13 Representatives. The report shall include:
14 (1) The number of complaint files against board
15 licensees that were opened in the preceding five calendar
16 years.
17 (2) The number of complaint files against board
18 licensees that were closed in the preceding five calendar
19 years.
20 (3) The number of disciplinary sanctions imposed upon
21 board licensees in the preceding five calendar years.
22 (4) The number of revocations, automatic suspensions,
23 immediate temporary suspensions and stayed and active
24 suspensions imposed, voluntary surrenders accepted, license
25 applications denied and license reinstatements denied in the
26 preceding five calendar years.
27 (5) The range of lengths of suspensions, other than
28 automatic suspensions and immediate temporary suspensions,
29 imposed during the preceding five calendar years.
30 (b) Posting.--The report shall be posted on each licensure
20010H1802B3326 - 71 -
1 board's publicly accessible World Wide Web site.
2 Section 910. Continuing medical education.
3 (a) Rules and regulations.--Each licensure board shall
4 promulgate and enforce regulations consistent with the act of
5 October 5, 1978 (P.L.1109, No.261), known as the Osteopathic
6 Medical Practice Act, or the act of December 20, 1985 (P.L.457,
7 No.112), known as the Medical Practice Act of 1985, as
8 appropriate, in establishing requirements of continuing medical
9 education for individuals licensed to practice medicine and
10 surgery without restriction as a condition for renewal of their
11 licenses. Such regulations shall include any fees necessary for
12 the licensure board to carry out its responsibilities under this
13 section.
14 (b) Required completion.--Beginning with the licensure
15 period commencing January 1, 2003, and following written notice
16 to licensees by the licensure board, individuals licensed to
17 practice medicine and surgery without restriction shall be
18 required to enroll and complete 100 hours of mandatory
19 continuing education during each two-year licensure period. As
20 part of the 100-hour requirement, the licensure board shall
21 establish a minimum number of hours that must be completed in
22 improving patient safety and risk management subject areas.
23 (c) Review.--The licensure board shall review and approve
24 continuing medical education providers or accrediting bodies who
25 shall be certified to offer continuing medical education credit
26 hours.
27 (d) Exemption.--Licensees shall be exempt from the
28 provisions of this section as follows:
29 (1) An individual applying for licensure in this
30 Commonwealth for the first time shall be exempt from the
20010H1802B3326 - 72 -
1 continuing medical education requirement for the biennial
2 renewal period following initial licensure.
3 (2) An individual holding a current temporary training
4 license shall be exempt from the continuing medical education
5 requirement.
6 (3) A retired physician who provides care only to
7 immediate family members shall be exempt from the continuing
8 medical education requirement.
9 (e) Waiver.--The licensure board may waive all or a portion
10 of the continuing education requirement for biennial renewal to
11 a licensee who shows to the satisfaction of the licensure board
12 that he or she was unable to complete the requirements due to
13 serious illness, military service or other demonstrated
14 hardship. A waiver request shall be made in writing, with
15 appropriate documentation, and shall include a description of
16 circumstances sufficient to show why compliance is impossible. A
17 waiver request shall be evaluated by the licensure board on a
18 case-by-case basis. The licensure board shall send written
19 notification of its approval or denial of a waiver request.
20 (f) Reinstatement.--A licensee seeking to reinstate an
21 inactive or lapsed license shall show proof of compliance with
22 the continuing education requirement for the preceding biennium.
23 (g) Board approval.--An individual shall retain official
24 documentation of attendance for two years after renewal, and
25 shall certify completed courses on a form provided by the
26 licensure board for that purpose to be filed with the biennial
27 renewal form. Official documentation proving attendance shall be
28 produced upon licensure board demand, pursuant to random audits
29 of reported credit hours. Electronic submission of documentation
30 is permissible to prove compliance with this subsection.
20010H1802B3326 - 73 -
1 Noncompliance with the requirements of this section may result
2 in disciplinary proceedings.
3 (h) Regulations.--The licensure board shall promulgate
4 regulations necessary to carry out the provisions of this
5 section within six months of the effective date of this section.
6 CHAPTER 11 <--
7 TORT REFORM
8 SECTION 1101. DEFINITIONS.
9 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
10 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
11 CONTEXT CLEARLY INDICATES OTHERWISE:
12 "ACTION." ANY ACTION BROUGHT TO RECOVER DAMAGES FOR
13 NEGLIGENCE RESULTING IN DEATH OR INJURY TO PERSON OR PROPERTY.
14 "ECONOMIC LOSS." INCLUDES, BUT IS NOT LIMITED TO, MEDICAL
15 BILLS AND EXPENSES, PROPERTY DAMAGE, LOST WAGES, LOSS OF
16 EARNINGS CAPACITY OR OTHER SIMILAR DAMAGES.
17 "NONECONOMIC LOSS." INCLUDES, BUT IS NOT LIMITED TO, PAIN
18 AND SUFFERING, MENTAL ANGUISH, EMOTIONAL DISTRESS, LOSS OF
19 CONSORTIUM, LOSS OF LIFE'S PLEASURES OR OTHER SIMILAR DAMAGES.
20 SECTION 1102. APPLICABILITY.
21 THIS CHAPTER SHALL APPLY TO ALL ACTIONS BROUGHT TO RECOVER
22 DAMAGES FOR NEGLIGENCE RESULTING IN DEATH OR INJURY TO PERSON OR
23 PROPERTY AND SHALL NOT BE LIMITED TO MEDICAL PROFESSIONAL
24 LIABILITY ACTIONS OR CLAIMS.
25 SECTION 1103. JOINT AND SEVERAL LIABILITY.
26 EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, WHEN RECOVERY
27 IS ALLOWED IN ANY ACTION AGAINST MORE THAN ONE DEFENDANT, EACH
28 DEFENDANT SHALL BE LIABLE FOR THAT PROPORTION OF THE TOTAL
29 DOLLAR AMOUNT AWARDED AS DAMAGES IN THE RATIO OF THE AMOUNT OF
30 HIS CAUSAL NEGLIGENCE TO THE AMOUNT OF CAUSAL NEGLIGENCE
20010H1802B3326 - 74 -
1 ATTRIBUTED TO ALL DEFENDANTS AGAINST WHOM RECOVERY IS ALLOWED.
2 THE PLAINTIFF MAY RECOVER FOR NONECONOMIC LOSS IN THE AMOUNT OF
3 $1,000,000, OR LESS AND FOR THE FULL AMOUNT OF ECONOMIC LOSS
4 FROM ANY DEFENDANT AGAINST WHOM THE PLAINTIFF IS NOT BARRED FROM
5 RECOVERY. ANY DEFENDANT WHO IS SO COMPELLED TO PAY MORE THAN HIS
6 PERCENTAGE SHARE OF THE PLAINTIFF'S ECONOMIC LOSS AND
7 NONECONOMIC LOSS MAY SEEK CONTRIBUTION. THE PLAINTIFF MAY ONLY
8 RECOVER NONECONOMIC LOSS FOR THAT PORTION OF THE NONECONOMIC
9 AWARD IN EXCESS OF $1,000,000 FROM EACH DEFENDANT IN AN AMOUNT
10 PROPORTIONAL TO EACH DEFENDANT'S SHARE OF CAUSAL NEGLIGENCE.
11 CHAPTER 51
12 MISCELLANEOUS PROVISIONS
13 Section 5101. Oversight.
14 (a) General rule.--The department has the authority and
15 shall assume oversight of the Medical Professional Liability
16 Catastrophe Loss Fund established in section 701(d) of the act
17 of October 15, 1975 (P.L.390, No.111), known as the Health Care
18 Services Malpractice Act. As part of its responsibilities, the
19 department shall do all of the following:
20 (1) Make all administrative decisions, including
21 staffing requirements, on behalf of that fund.
22 (2) Approve the adjustment, defense, litigation,
23 settlement or compromise of any claim payable by that fund.
24 (3) Collect the surcharges imposed in accordance with
25 section 701(e)(1) of the Health Care Services Malpractice
26 Act.
27 (b) Expiration.--This section shall expire September 1,
28 2002.
29 Section 5102. Prior fund.
30 (a) Administration.--Employees of the Medical Professional
20010H1802B3326 - 75 -
1 Liability Catastrophe Loss Fund on the effective date of this
2 section shall continue to administer that fund subject to the
3 authority and oversight of the department. This subsection shall
4 expire September 1, 2002.
5 (b) Employees.--If an employee of that fund on the effective
6 date of this section is subsequently furloughed and the employee
7 held a position not covered by a collective bargaining
8 agreement, the employee shall be given priority consideration
9 for employment to fill vacancies with executive agencies under
10 the Governor's jurisdiction.
11 Section 5103. Notice.
12 When the authority has established a Statewide reporting
13 system, the notice shall be transmitted to the Legislative
14 Reference Bureau for publication in the Pennsylvania Bulletin.
15 Section 5104. Repeals.
16 (a) Specific.--
17 (1) Section 6506(c) of Title 75 of the Pennsylvania
18 Consolidated Statutes is repealed.
19 (2) Except as set forth in paragraphs (3), (4) and (5),
20 the act of October 15, 1975 (P.L.390, No.111), known as the
21 Health Care Services Malpractice Act, is repealed.
22 (3) Section 103 of the Health Care Services Malpractice
23 Act is repealed.
24 (4) Except as provided in paragraph (5), Article VII of
25 the Health Care Services Malpractice Act is repealed.
26 (5) Section 701(e)(1) of the Health Care Services
27 Malpractice Act is repealed.
28 (b) Inconsistent.--
29 (1) Section 6506(b) of Title 75 of the Pennsylvania
30 Consolidated Statutes is repealed insofar as it is
20010H1802B3326 - 76 -
1 inconsistent with section 712(m).
2 (2) SECTION 7102 OF TITLE 42 OF THE PENNSYLVANIA <--
3 CONSOLIDATED STATUTES IS REPEALED INSOFAR AS IT IS
4 INCONSISTENT WITH CHAPTER 11.
5 (2) (3) All other acts and parts of acts are repealed <--
6 insofar as they are inconsistent with this act.
7 Section 5105. Applicability.
8 (a) Patient safety discount.--Section 312 shall apply to
9 policies issued or renewed after December 31, 2002.
10 (b) Actions.--Sections 504(d)(2), 505(e), 508, 509 and 510 <--
11 (B) ACTIONS.-- <--
12 (1) SECTIONS 504(D)(2), 505(E), 508, 509 AND 510 shall
13 apply to causes of action which arise on or after the
14 effective date of this section.
15 (2) CHAPTER 11 SHALL APPLY TO PENDING ACTIONS: <--
16 (I) WHICH ARE INITIATED ON OR AFTER THE EFFECTIVE
17 DATE OF THIS SECTION; AND
18 (II) IN WHICH THE VERDICT HAS NOT BEEN RENDERED ON
19 THE EFFECTIVE DATE OF THIS SECTION.
20 Section 5106. Continuation.
21 (a) Orders and regulations.--Orders and regulations which
22 were issued or promulgated under the former act of October 15,
23 1975 (P.L.390, No.111), known as the Health Care Services
24 Malpractice Act, and which are in effect on the effective date
25 of this section shall remain applicable and in full force and
26 effect until modified under this act.
27 (b) Administration and construction.--To the extent possible
28 under Subchapter C of Chapter 7, the joint underwriting
29 association is authorized to administer Subchapter C of Chapter
30 7 as a continuation of the former Article VIII of the Health
20010H1802B3326 - 77 -
1 Care Services Malpractice Act.
2 Section 5107. Effective date.
3 This act shall take effect as follows:
4 (1) The following provisions shall take effect
5 immediately:
6 (i) Chapter 1.
7 (ii) Section 501.
8 (iii) Section 502.
9 (iv) Section 503.
10 (v) Section 504.
11 (vi) Section 505.
12 (vii) Section 506.
13 (viii) Section 507.
14 (ix) Section 508.
15 (x) Section 509.
16 (xi) Section 510.
17 (xii) Section 513.
18 (xiii) Section 514.
19 (XIII.1) CHAPTER 11. <--
20 (xiv) Except as provided in paragraph (3)(i),
21 Chapter 7.
22 (xv) Section 5101.
23 (xvi) Section 5102.
24 (xvii) Section 5103.
25 (xviii) Section 5104(a)(1) and (2) and (b)(2) AND <--
26 (3).
27 (xix) Section 5105.
28 (xx) Section 5106.
29 (xxi) This section.
30 (2) The following provisions shall take effect 30 days
20010H1802B3326 - 78 -
1 after publication of the notice under section 5103:
2 (i) Section 313.
3 (ii) Section 314.
4 (3) The following provisions shall take effect September
5 1, 2002:
6 (i) Section 712(b) and (c)(1).
7 (ii) Section 5104(a)(4).
8 (4) Section 5104(a) (3) and (5) and (b)(1) shall take
9 effect January 1, 2004.
10 (5) The remainder of this act shall take effect in 60
11 days.
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