PRINTER'S NO. 908
No. 805 Session of 1975
INTRODUCED BY SHANE, SALVATORE, A. P. KELLY, GALLAGHER, HAMMOCK,
McCLATCHY, FAWCETT, CRAWFORD, HILL, TOLL AND WAGNER,
MARCH 18, 1975
REFERRED TO COMMITTEE ON JUDICIARY, MARCH 19, 1975
AN ACT
1 Relating to the promotion of the health, safety and welfare of
2 the people of the Commonwealth by defining medical
3 malpractice, prohibiting medical treatment without consent,
4 creating a Patients Compensation Board and providing for
5 recovery for malpractice, requiring bond or insurance
6 coverage, establishing the period of limitations for
7 malpractice suits, providing for counterclaims, limiting
8 discovery and establishing standards for witnesses in
9 malpractice cases.
10 The General Assembly of the Commonwealth of Pennsylvania
11 hereby enacts as follows:
12 Section 1. Short Title.--This act shall be known and may be
13 cited as the "Pennsylvania Medical Malpractice Reform and
14 Patient Compensation Act."
15 Section 2. Findings and Policy.--It is hereby determined and
16 declared as a matter of legislative finding that--
17 (1) The health, safety and welfare of the people of the
18 Commonwealth are endangered by the threatened and imminent
19 unavailability of medical malpractice insurance coverage for
20 physicians. The danger includes the addition of substantial new
21 costs of health care, inflated by increased insurance rates,
1 where available; the increased reliance on the practice of
2 defensive medicine; the costly and potentially hazardous use of
3 unnecessary medical procedures to protect against malpractice
4 suits; the inability to obtain new physicians to begin practice
5 in physician-shortage areas because of the malpractice threat;
6 the unwillingness of physicians to undertake treatment of
7 difficult cases; the reduction or elimination of medical
8 innovation; and the ultimate sterilization of the art of
9 medicine and surgery.
10 (2) The threatened unavailability of medical malpractice
11 insurance and the dangerous inhibitions imposed on the practice
12 of medicine and surgery results substantially from recently
13 developing legal theories that tend to convert the nature of
14 malpractice cases from recovery for negligent or incompetent
15 treatment to social compensation for any disability or
16 unfortunate medical result, regardless of fault.
17 (3) Therefore, it is hereby declared to be the policy of the
18 Commonwealth of Pennsylvania to promote the health safety and
19 welfare of its inhabitants by defining the legal obligations of
20 physicians so as to eliminate burdensome, unfair and
21 discriminatory doctrines in malpractice cases.
22 Section 3. Definitions.--As used in this act, the following
23 terms shall have the following meanings ascribed to them unless
24 the context clearly determines otherwise.
25 "Board" means the Patients Compensation Board created by this
26 act.
27 "Health care provider" means any person, partnership,
28 association, corporation, facility or institution duly licensed
29 or regulated by the Commonwealth of Pennsylvania to provide
30 health care or professional services as a physician, registered
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1 nurse or hospital.
2 "Hospital" means any institution fully accredited by the
3 Joint Commission of Accreditation of Hospitals or regulated by
4 the Commonwealth of Pennsylvania to render health care.
5 "Malpractice" means any act, omission, breach or failure,
6 whether negligent, tortious, or a breach of a contractual or
7 legal duty, occurring in furnishing medical treatment causing
8 personal injury or death as a result of a physician's departure
9 from, or failure to conform to, the accepted standard of medical
10 practice among physicians with similar training and experience
11 in the same or similar medical community.
12 "Medical consent" means the consent actually given, or
13 implied, in any of the following circumstances:
14 the physician has made a reasonable disclosure of the nature
15 and probable consequences of the suggested or recommended
16 medical treatment; and the patient, or legal representative,
17 agrees; or
18 the physician has offered to make a reasonable disclosure of
19 the nature and probable consequences of the suggested or
20 recommended medical treatment, and the patient refuses or waives
21 such disclosure; or
22 in the event of a medical emergency, or the discovery during
23 the course of medical treatment of unforeseen conditions under
24 circumstances in which it is unreasonable to obtain actual
25 consent, the consent will be implied if a reasonably prudent
26 person would have consented to the medical treatment.
27 "Medical emergency" means any unexpected, unforeseen or
28 unavoidable situation involving the injury, disease, condition,
29 or illness of an individual and requiring medical treatment
30 which good medical practice requires to be undertaken despite
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1 the inability of the patient to give consent, or the inability
2 to contact and obtain consent from the patient's legal
3 representative when, in the physician's judgment, an attempt to
4 secure such consent would result in delay of treatment which
5 would increase the risk to the individual's life or health.
6 "Medical treatment" means the performance of medicine and
7 surgery by any procedure, surgical operation, examination,
8 therapy, or use of medication or medical instruments intended to
9 treat or diagnose human ailments, disease, pain, injury,
10 deformity, or mental or physical condition by any means which
11 may include, but are not limited to, radiology, the
12 administration of drugs, blood transfusions, the use of
13 anesthetics, laboratory or other diagnostic procedures, or
14 reduction of fractures.
15 "Patient" means any individual who receives or is supposed to
16 receive pursuant to contract, express or implied, health care
17 from a health care provider.
18 "Permanent impairment" means the permanent loss of bodily
19 function of the individual as a whole or in part.
20 "Reasonable disclosure" means the explanation in accordance
21 with the accepted standard of medical practice among physicians
22 with similar training and experience in the same or similar
23 medical community of the risks and hazards inherent in the
24 proposed medical treatment and of the reasonable alternatives to
25 the proposed medical treatment. If, applying such accepted
26 standard of medical practice, full disclosure may generate
27 harmful anxiety, apprehension or fear, to the detriment of the
28 patient, the withholding of such potentially harmful information
29 shall be deemed to be reasonable.
30 "Representative" means the spouse, parent, guardian, trustee,
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1 attorney or legal agent of the patient.
2 "Tort" means any legal wrong, or negligent or unlawful act or
3 omission causing bodily injury or death.
4 Section 4. Medical Consent Necessary.--No medical treatment
5 shall be permitted without the patient's medical consent.
6 Section 5. Claim for Compensation.--Any patient, personal
7 representative, or in the case of a minor, parent or guardian,
8 having any claim for compensation or benefits under this act for
9 bodily injury or death on account of malpractice, or a tort, or
10 breach of contract committed by any health care provider may
11 file a complaint for same with the secretary of the board as
12 herein provided.
13 Notice of the filing of such claim shall be served on all
14 named defendants by the secretary of the board by registered
15 mail, with return receipt requested, to the address of all
16 defendants as designated by the plaintiff.
17 Section 6. Disciplinary Proceedings.--In the event the board
18 shall find that the injury or damage to the patient was caused
19 in whole or in part by the wilful or wanton misconduct of one or
20 more of the defendants, the board shall, in addition to awarding
21 compensatory damages as hereinafter provided, refer the case
22 with recommendations to the State Board of Medical Education and
23 Licensure or other appropriate Commonwealth licensing or
24 regulatory agency for disciplinary proceedings.
25 Section 7. Disciplinary Investigations and Hearings.--The
26 State Board of Medical Education and Licensure shall employ such
27 investigators and attorneys as are necessary to fully implement
28 its authority to revoke, suspend, limit, or otherwise restrict
29 the licenses of physicians, issue reprimands, or require
30 licensees to submit to medical treatment. The State Board of
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1 Medical Education and Licensure shall appoint, with the approval
2 of the Governor, such hearing examiners as shall be necessary to
3 conduct hearings in accordance with the disciplinary authority
4 granted by the act of July 20, 1974 (No.190), known as the
5 "Medical Practice Act of 1974." Such hearing examiners shall
6 have the power to issue subpoenas requiring the attendance and
7 testimony of, or the production of, pertinent books and papers
8 by persons whom they believe to have information relevant to any
9 matter pending before the examiner. Such examiner shall also
10 have the power to administer oaths. All fees and fines collected
11 under the provisions of the "Medical Practice Act of 1974" are
12 hereby specifically appropriated for the exclusive use by the
13 State Board of Medical Education and Licensure in carrying out
14 the provisions of that act.
15 Section 8. Board Procedure Presumed.--From and after the
16 effective date of the act, every patient and every health care
17 provider shall be conclusively presumed to have accepted the
18 provisions of this act with respect to claims to the board for
19 compensation and to be bound thereby, except as herein otherwise
20 provided.
21 The patient health care provider relationship is also
22 conclusively presumed to be based upon a contract, either
23 express or implied, and every such contractual arrangement
24 between those parties shall therefore be conclusively presumed
25 to contain the full provisions of this act, and the rights and
26 remedies provided herein, shall, from and after the effective
27 date hereof, exclude all other rights and remedies of such
28 patient, his personal representative, parent, guardian, spouse,
29 dependent or next of kin, at common law or otherwise, on account
30 of injury or death as set forth in this act.
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1 A like presumption shall exist equally in the case of all
2 minors, or other persons under legal disability, except as
3 herein provided.
4 Every express written contract between a patient and health
5 care provider in existence on the effective date of this act
6 containing provisions inconsistent with the terms and provisions
7 of this act, shall remain unimpaired and shall be binding and
8 effective as to all parties thereto as to any inconsistent
9 provision, unless and until said contract expires or is
10 rescinded by law or the mutual agreement of the parties thereto
11 following which the terms and provisions of this act shall
12 become binding and effective as to any such parties.
13 Section 9. Rejection of Board Claims Procedure.--The
14 exclusive method for patient rejection of the provisions of this
15 act with respect to claims to the board for compensation shall
16 be by written notice by said patient or his representative to
17 the health care provider, duly acknowledged, in the form and
18 manner provided by the board, specifically rejecting the terms
19 of this act with respect to claims to the board for compensation
20 delivered prior to any medical treatment resulting in injury or
21 damage giving rise to a potential patient claim. In the event
22 such written notice of rejection is so given, then all parties
23 shall exist without regard to the provisions of this act
24 regarding claims to the board for compensation.
25 No health care provider shall be liable, except as provided
26 in this act, for any health care or service provided in an
27 emergency prior to the time when the patient, or his legal
28 representative, shall have reasonable opportunity to reject the
29 provisions of this act with respect to claims to the board for
30 compensation: Provided, however, That in the event the patient
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1 or his legal representative shall duly notify the health care
2 provider of his rejection within a reasonable time after
3 provision of said emergency health care or service, the health
4 care provider may thereafter decline to provide any further or
5 additional health care or service.
6 Any health care provider who fails to qualify under this act
7 as herein provided, shall be subject to liability under the law
8 without regard to the provisions of this act with respect to
9 proceedings before the board.
10 Rejection of the provisions of this act with respect to
11 claims to the board for compensation by a patient or his
12 representative shall not be permitted or effective as to any
13 health care which is provided under compulsion of law.
14 Section 10. Prior Injuries.--The provisions of this act with
15 respect to claims to the board for compensation shall not apply
16 to injuries or death nor services rendered which occurred prior
17 to the effective date of this act.
18 Section 11. Burden of Proof Regarding Medical Consent.--In
19 any action before the board or in any court in the Commonwealth
20 against a physician for medical treatment performed by the
21 physician without medical consent, the plaintiff shall have the
22 burden to prove by a preponderance of the evidence the absence
23 of medical consent, the patient's lack of knowledge of the
24 hazards involved, the adverse effects upon the patient which
25 resulted from such lack of medical consent, and that a
26 reasonable person would not have consented to the medical
27 treatment if that person had been aware of the risk of those
28 adverse effects.
29 Section 12. Medical Treatment With Consent.--No recovery
30 shall be allowed in any action before the board or court in the
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1 Commonwealth against a physician for medical treatment
2 performed, in accordance with the accepted standard of medical
3 practice among physicians with similar training and experience
4 in the same or similar medical community, by the physician with
5 medical consent.
6 Section 13. Written Consent.--A consent to medical treatment
7 which discloses in general terms the treatment or course of
8 treatment in connection with which it is given, or which waives
9 such disclosure, and which is duly evidenced in writing and
10 signed by the patient or legal representative authorized to
11 consent, shall be conclusively presumed to be a valid medical
12 consent in the absence of fraudulent misrepresentations of
13 material facts.
14 Section 14. Agreements Concerning Results.--No action before
15 the board or in any court in the Commonwealth shall be brought
16 against any physician upon any guarantee, warranty, promise,
17 agreement, contract or assurance as to the results or the safety
18 of any medical treatment unless the guarantee, warranty,
19 promise, agreement, contract or assurance upon such action shall
20 be brought, or some memorandum or note thereof, shall be in
21 writing, and signed by the party to be charged therewith, or
22 some other person by such party authorized.
23 Section 15. Expert Medical Testimony.--In any action before
24 the board or in any court in the Commonwealth against a
25 physician for personal injury or death for any act, or omission
26 or failure by the physician in the practice of medicine and
27 surgery giving rise to the cause of action, no expert medical
28 testimony shall be introduced to establish that the physician
29 negligently carried out professional duties and departed from
30 the accepted standard of medical practice among physicians with
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1 similar training and experience in the same or similar medical
2 community, except by the testimony of a witness who is a
3 specialist in the same speciality involved in the suit or who
4 has demonstrated familiarity with the medical or surgical
5 technique involved in the suit.
6 Section 16. Proof of Negligence.--In any action before the
7 board or in any court in the Commonwealth against a physician
8 for personal injury or death for any act, or omission or failure
9 by the physician in the practice of medicine and surgery giving
10 rise to the cause of action, there shall be no presumption or
11 inference of negligence or malpractice on the part of the
12 physician; and the jury shall be instructed that the plaintiff
13 has the burden of proving, by a preponderance of the competent
14 evidence, that the plaintiff sustained the injury as a result of
15 the negligence of the physician, and that the injury alone does
16 not raise either a presumption or inference of negligence.
17 Section 17. Counterclaims.--In any action before the board
18 or in any court in the Commonwealth for damages for personal
19 injury or death, whether based on tort or contract law, or
20 otherwise, a counterclaim for damages for abuse of process in
21 filing such action may be filed and litigated in the same action
22 provided that the counterclaim is based upon substantial
23 allegations of material facts.
24 Section 18. Discovery of Insurance Coverage.--In any action
25 before the board or in any court in the Commonwealth against a
26 physician for personal injury or death resulting from
27 malpractice by the physician giving rise to the cause of action,
28 neither the fact that the physician is insured by a policy of
29 liability insurance nor the amount of the liability policy
30 limits shall be discoverable by oral examination, written
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1 interrogatories, inspection, written request for admissions,
2 subpoena, or any other form of pre-trial deposition or
3 discovery.
4 Section 19. Limitation of Actions.--Notwithstanding any
5 other provision of law, no action before the board or in any
6 court in the Commonwealth against a physician for malpractice,
7 whether based in assumpsit or trespass, may be commenced more
8 than two years after the act or omission or failure giving rise
9 to the cause of action: Provided, That if the cause of action is
10 not discovered and could not reasonably have been discovered
11 within such period, then the action may be commenced within one
12 year from the date of such discovery or the date of discovery of
13 the facts which would reasonably lead to such discovery,
14 whichever is earlier: Provided, further, That in no event may
15 the action be commenced more than three years after such act.
16 Section 20. Patients Compensation Board.--There is hereby
17 created the Patients Compensation Board, which shall consist of
18 six full-time members, appointed by the Governor by and with the
19 advice and consent of the Senate, one of whom he shall designate
20 as the first chairman. The chairmanship of the board shall
21 thereafter be rotated annually among the members of the board.
22 Two of the members shall be physicians licensed for the
23 practice of medicine in Pennsylvania, two shall be attorneys
24 admitted to practice by the Supreme Court of Pennsylvania and
25 two shall be laymen not engaged in the active practice of
26 medicine and surgery or law. The two lay members of the board
27 shall not be members of the same political party.
28 The full board shall be divided into two hearing panels, each
29 of which shall consist of one attorney, one physician and one
30 layman. In any and all cases in which a defendant shall be a
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1 physician, hospital, or registered nurse, one of such panels
2 shall take evidence and determine whether or not the claim is
3 valid.
4 Each members of the board, except those first appointed,
5 shall hold office for four years and until his successor is
6 appointed and qualified: Provided, however, That on or before
7 the effective date of this act the Governor shall appoint two
8 members to a term of one year; and two members to a term of two
9 years and two members to a term of three years: Provided,
10 further, That future appointments to fill expired terms shall be
11 for a period of four years.
12 No physician, attorney or lay member of the board shall be
13 otherwise generally employed or hold any other general position
14 of trust or profit or engage in the practice of medicine and
15 surgery or law. Any member of said board may be removed by the
16 Governor at any time for incompetency, neglect or duty,
17 misconduct in office, or other good cause to be stated in
18 writing in the order of removal.
19 In case of a vacancy in the membership of the said board, the
20 Governor shall appoint for the unexpired term in the same manner
21 as for original appointments.
22 Section 21. Board Administration.--All members of the board,
23 and the secretary of the board, shall be paid salaries fixed by
24 the Executive Board of the Commonwealth with the approval of the
25 Governor.
26 All members of the board and its employes shall be entitled
27 to receive their actual and necessary expenses while traveling
28 on the business of the board but such expenses shall be approved
29 by the chairman of the board before payment is made.
30 The board shall appoint a secretary and may remove such
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1 secretary. The secretary shall have authority to administer
2 oaths and issue subpoenas in connection with the administration
3 of this act.
4 The board, subject to the approval of the Governor and the
5 Commonwealth Executive Board may employ and fix the compensation
6 of such clerical and other assistants as it may deem necessary.
7 The board shall be provided with adequate offices in the
8 Capitol or some other suitable building in the City of
9 Harrisburg in which the records shall be kept and its official
10 business be transacted and hearings held during regular business
11 hours; it shall also be provided with necessary office
12 furniture, stationery and other supplies.
13 Board panel hearings shall be conducted in the county where
14 the tort or breach of contract allegedly occurred, but may,
15 within the sound discretion of such panel, be held in any other
16 county if said panel deems it necessary or advisable. All full
17 board hearings shall be held in Harrisburg unless the chairman
18 of the board orders otherwise.
19 Section 22. Parties.--The parties to any original
20 proceedings before the board shall be designated as the
21 plaintiff and the defendant. The party filing the complaint or
22 other original proceeding before the board shall be designated
23 as the plaintiff and the adverse party as the defendant.
24 Section 23. Joinder of Parties.--All persons may be joined
25 as plaintiffs in whom any right to any relief, under this act,
26 arising out of the same transaction, is alleged to exist.
27 If any such person should refuse to join as a plaintiff, that
28 person may then be joined as a defendant, and the fact of
29 refusal to join as plaintiff shall be stated in the complaint.
30 All persons may be joined as defendants against whom the
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1 right to any relief under this act is alleged to exist.
2 The board, at any time, upon a proper showing, or of its own
3 motion, may order, with appropriate notice, that any additional
4 party plaintiff or defendant be joined when it deems the
5 presence of such party necessary and proper to a just
6 determination of any claim under this act.
7 Section 24. Expedited Proceedings.--To the end that all
8 proceedings before the board shall be conducted with the least
9 possible expense and with the greatest practical dispatch,
10 notice of all hearings and proceedings before the board, unless
11 otherwise directed herein, may be given by registered mail, with
12 return receipt requested, and proof of the mailing of any such
13 notice shall be conclusive evidence of the service thereof.
14 Section 25. Defenses.--A defendant may file an answer of
15 denial to the complaint of the plaintiff, and may file any other
16 special defense, not prohibited by this act, recognized under
17 the law to a tort or breach of contract action, at any time
18 before the date set for the hearing, but no such answer is
19 required, and if none is filed, the allegations contained in the
20 complaint will be deemed to be denied. The filing of any special
21 defense after the cause is set for hearing may be by written
22 leave only, granted by a member of the panel or board scheduled
23 to hear the cause.
24 Section 26. Pleadings.--All pleadings must be printed or
25 typewritten and may be filed on a form prescribed by the board,
26 if any, and must be filed in triplicate.
27 After filing the original complaint with the board, all
28 subsequent pleadings or briefs filed with the said board shall
29 contain a certification that on or before the day of filing a
30 copy of said document was served on opposing counsel, or on the
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1 party or parties if there is no counsel of record. The
2 certification may show service by registered mail, with return
3 receipt requested, or by personal service.
4 The board shall prepare and cause to be printed, and upon
5 request furnish free of charge, such blank forms and literature
6 as it shall deem requisite to facilitate or promote the
7 efficient administration of this act. Any report, deposition or
8 recorded testimony of attending or examining physicians shall be
9 in the private records of the board, which shall be open to the
10 inspection of the parties and their legal representatives, but
11 not to the general public unless, in the opinion of the board,
12 the public interest shall so require.
13 The board shall make to the Governor annually, on or before
14 December 1, a report of its work during the preceding fiscal
15 year, in such form as it may determine, with the approval of the
16 Governor.
17 Section 27. Board Decisions.--The board or any hearing panel
18 shall hear evidence submitted and arguments of counsel, if any,
19 with reasonable dispatch, and shall promptly record its
20 decision, supported by findings of fact, and a copy thereof
21 shall immediately be sent to counsel of record, or the parties,
22 if not represented.
23 Section 28. Vote of Board.--A majority vote of the hearing
24 panel or full board shall be sufficient upon which to base an
25 award. In the event of an even vote in a case heard by a hearing
26 panel, the case shall be referred to the full board for
27 decision. If the vote of the full board shall result in a tie
28 vote, the vote of the chairman shall control.
29 Section 29. Substantive and Procedural Laws and Rules.--
30 Except as herein provided, the board will be bound by the common
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1 and statutory law; the act of June 4, 1945 (P.L.1388, No.442),
2 known as the "Administrative Agency Law," and by the
3 Pennsylvania Rules of Civil Procedure; but will conduct such
4 hearings and make such investigations in reference to the
5 questions at issue in such manner as in its judgment are best
6 adapted to ascertain and determine the substantial rights of the
7 parties expeditiously and accurately and to carry out justly the
8 spirit of this act.
9 The board is hereby authorized to adopt such rules as may be
10 necessary to carry into effect the provisions of this act, and
11 to prescribe the means, methods and practices necessary to
12 effectuate such provisions; to approve settlement agreements
13 between plaintiffs and defendants; to order physical
14 examinations; to subpoena witnesses, administer oaths; apply to
15 the appropriate court of competent jurisdiction to enforce the
16 attendance and testimony of witnesses and the production and
17 examination of books, papers and records, and to exercise all
18 other powers and duties conferred upon it by law. The express
19 mention of the foregoing powers and duties shall not be
20 construed as limiting said board with regard to any other powers
21 and duties provided in this act or which may hereafter be
22 conferred on said board.
23 The board may, upon the application of either party or upon
24 its own motion, appoint a disinterested and duly qualified
25 physician or other professional person or expert to make any
26 necessary professional or expert examination of the claimant or
27 relevant evidentiary matter and to report and/or testify as a
28 witness in respect thereto. Said witness shall be allowed
29 traveling expenses and a reasonable fee to be fixed by the board
30 and taxes as costs.
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1 Section 30. Evidence.--In all hearings proof may be made by
2 oral testimony or by deposition or interrogatories. Such
3 depositions shall be taken in the manner and upon the notice
4 required by the rules for taking depositions in civil cases and
5 may be introduced into evidence without regard to the
6 availability of the witness to testify at the time of trial. Any
7 witness, however, may be subpoenaed by any party to the
8 controversy to testify pursuant to the rules appropriate to
9 civil actions and shall be considered to be the witness of the
10 party who offered his deposition.
11 The appropriate county sheriff may also serve any process
12 issued by the board, upon prepayment of his fees. Witnesses
13 before the board shall receive for attendance, the fees and
14 mileage allowed for witnesses as in civil cases.
15 Section 31. Costs.--In all proceedings before a hearing
16 panel or the board under the terms of this act, the costs shall
17 be awarded and taxes as provided by the panel or the board.
18 Section 32. Review of Full Board.--If application for review
19 is made to the board within 20 days from the date of the award
20 made by a hearing panel, the full board shall review the
21 evidence, and if deemed advisable by the board, hear argument
22 and additional evidence.
23 As soon as practicable, the board shall make an award and
24 shall file the same with its finding of the facts on which it is
25 based and send a copy thereof to each of the parties in dispute.
26 Section 33. Judgment.--After the passage of time for review
27 or appeal of any award of a hearing panel or the full board, any
28 party in interest may file in the court of common pleas of the
29 county of residency of the defendant, a certified copy of the
30 award of the board, or of an award of the board affirmed upon an
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1 appeal, whereupon said court shall render judgment in accordance
2 therewith and notify such defendant. Such judgment shall have
3 the same force and effect, and all proceedings in relation
4 thereto shall thereafter be the same, as though said judgment
5 has been rendered in a suit duly heard and determined by said
6 court.
7 Section 34. Appeals.--An award by the full board shall be
8 conclusive and binding as to all questions of fact, but either
9 party to the dispute may with 30 days from the date of such
10 award appeal to the Superior Court of Pennsylvania for errors of
11 law under the same terms and conditions as cover appeals in
12 ordinary civil actions.
13 An assignment of errors that the award of the full board is
14 contrary to law shall be sufficient to present both the
15 sufficiency of the facts found to sustain the award and the
16 sufficiency of the evidence to sustain the findings of facts.
17 Section 35. Limits on Compensation.--Whenever the board
18 shall determine that the plaintiff has suffered bodily injury or
19 has suffered damage from the death or bodily injury of another
20 as a result of a tort or breach of contract on the part of a
21 health care provider, the board shall award compensation and
22 benefits within the following limits:
23 (1) For death of a minor without dependents, the
24 compensation recoverable shall not exceed the sum of $25,000.
25 This sum shall be the reasonable value of the minor's services
26 to its parents or legal guardian, less the reasonable cost of
27 the maintenance of said minor, which compensation shall enure to
28 the exclusive benefit of said parent or guardian, plus any and
29 all reasonable medical, hospital, funeral, burial or related
30 expense, plus an amount which the board may determine reasonable
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1 for the cost of prosecuting such claim. The sole right to
2 institute the claim or claims provided for in this paragraph
3 shall be the personal representative of the deceased, for the
4 exclusive benefit of: (i) such parent or parents, or legal
5 guardian; and (ii) the persons incurring such medical, hospital,
6 funeral, burial and related expense.
7 (2) For death of an adult without dependents, the
8 compensation recoverable shall not exceed the sum of $50,000.
9 This sum shall be the reasonable value of the last hospital,
10 medical or other related expense, plus the reasonable cost of
11 funeral and burial, plus an amount which the board may determine
12 reasonable for the costs of prosecuting such claim. The sole
13 right to institute the claim under this paragraph shall be the
14 personal representative of the deceased for the exclusive
15 benefit of those incurring such expense.
16 (3) For the death of a minor or adult with dependents, the
17 compensation recoverable shall not exceed the sum of $100,000.
18 This sum may include the actual or prospective loss of earnings
19 for the working life expectancy of such deceased during the
20 dependency of the claimant, less the reasonable cost of the
21 maintenance of such deceased, plus the reasonable cost of the
22 deceased's medical, hospital, funeral and burial expense, plus
23 an amount the board may determine reasonable for the cost of
24 prosecuting such claim. The sole right to institute the claim
25 provided for in this paragraph shall be in the personal
26 representative of the deceased for the exclusive benefit of the
27 deceased's dependents and for those incurring such expense.
28 (4) For bodily injury to an adult or minor not resulting in
29 death it shall be the duty of the board to determine the
30 percentage of permanent impairment of the body of the injured
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1 person as a whole, if any, for which the board shall allow an
2 amount not to exceed $50,000 for 100% permanent impairment. For
3 a lesser percent of permanent impairment, the board shall allow
4 a proportionate lesser amount. In addition to the allowance for
5 permanent impairment, the board may allow for any and all other
6 injury or damage, general or special, including temporary total
7 disability, temporary partial disability, loss of earnings,
8 past, present and future, the reasonable medical, hospital and
9 related expense, past, present and future, and an amount the
10 board may determine reasonable for the cost of prosecuting such
11 claim, a sum not to exceed $50,000. The sole right to institute,
12 maintain and recover a claim for the compensation and benefits
13 provided in this paragraph shall be in the injured party, or in
14 the event of his legal disability, his parent, legal guardian,
15 trustee, or other representative.
16 The compensation and benefits awarded under this act, shall
17 not be reduced by any collateral source of compensation
18 benefits, public or private. No right of subrogation shall be
19 enforcible against any benefit or compensation awarded under
20 this act.
21 The award or judgment, if any, shall be payable in equal
22 shares by each defendant found liable therefor.
23 Section 36. Proof of Financial Responsibility.--Every health
24 care provider subject to the terms of this act shall within 90
25 days after the effective date of this act, file with the board
26 on a form prescribed by it, proof of financial responsibility.
27 Every health care provider subject to the provisions of this
28 act, shall either insure and keep insured his liability
29 hereunder in some insurance company licensed to write casualty
30 insurance in the Commonwealth, or furnish to the board a cash or
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1 surety bond as herein provided. The submission of a cash or
2 surety bond shall be subject to the approval of the board and
3 shall be valid only when approved by the board.
4 Such insurance, cash or surety bond shall be in an amount
5 sufficient to cover the total potential liability of the health
6 care provider under the terms and provisions of this act.
7 While such insurance or surety bond approved by the board
8 remains in force, said health care provider and those conducting
9 their business, including their patient's compensation insurance
10 carrier, shall be liable to any patient, his personal
11 representative, parent, spouse, dependents or next of kin, for
12 personal injury or death, only to the extent and in the manner
13 specified in this act.
14 Section 37. Policies of Insurance.--No insurer shall enter
15 into or issue any policy of insurance under this act until its
16 policy form shall have been submitted to and approved by the
17 Insurance Commissioner. The filing of a policy form by any
18 insurer with the Insurance Commissioner for approval shall
19 constitute, on the part of such insurer, a conclusive and
20 unqualified acceptance of each and all of the provisions of this
21 act (including punitive damages provisions), and an agreement by
22 it to be bound thereby, as to any policy issued by it to any
23 health care provider.
24 Any provisions in any such policy attempting to limit or
25 modify the liability of the insurer issuing same shall be wholly
26 void.
27 Every policy issued under this act shall be deemed to include
28 the following provisions, and any change therein which may be
29 occasioned by any legislation hereafter adopted by the General
30 Assembly of the State as fully as if they were written therein:
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1 (a) The insurer hereby assumes in full all of the
2 obligations to pay in full any award imposed against its insured
3 under the provisions of this act with respect to an award by the
4 board.
5 (b) Any termination of this policy by cancellation shall not
6 be effective as to patients claiming against the insured covered
7 hereby, unless at least ten days prior to the taking effect of
8 such cancellation, a written notice giving the date upon which
9 such termination is to become effective has been received by the
10 board at its offices.
11 (c) If any insurer shall fail or refuse to pay any final
12 award or judgment (except during the pendency of an appeal)
13 rendered against it, or its insured, or if it shall fail or
14 refuse to comply with any provisions of this act, the board
15 shall revoke the approval of its policy form, and the board
16 shall not accept any further proofs of financial responsibility
17 until it shall have paid said award or judgment or complied with
18 the violated provisions of this act and shall have resubmitted
19 its policy form and received the approval thereof by the
20 Insurance Commissioner.
21 Section 38. Assigned Risks.--From and after the effective
22 date of this act, it shall be the duty of all insurance
23 companies whose policy forms have been approved by the Insurance
24 Commissioner as set forth in section 37 of this act, to accept
25 and insure any health care provider who has applied for and been
26 rejected in writing by two of such companies, all as herein
27 provided.
28 When any such rejected risk is called to the attention of the
29 board, and it appears to the board, after investigation as
30 herein provided, that said health care provider is, in fact and
19750H0805B0908 - 22 -
1 in the board's sound judgment, duly qualified as a health
2 provider, said board shall certify such fact to the Insurance
3 Commissioner who shall thereupon conduct such inquiry and
4 hearing as he deems appropriate relative to the insurability of
5 said risk. If upon such inquiry the Insurance Commissioner shall
6 find and believe said risk to be insurable, he shall assign said
7 risk to one of the companies aforesaid and order the issuance of
8 a policy, for a period of one year, containing the usual and
9 customary provisions found in such policy, but for which
10 undertaking all insurance companies whose policy forms have been
11 approved by the board shall be reinsurers as among themselves in
12 the pro rata amount that their outstanding patients compensation
13 insurance bears to the total amount of such insurance written in
14 this State at the time of the assignment of said risk.
15 In determining the qualifications of rejected risk, the board
16 shall cause same to be carefully reviewed under rules and
17 standards to be promulgated by the board, by a peer review group
18 of three or more members of the particular profession of said
19 rejected health care provider. The peer review group so selected
20 by the board shall act in an advisory capacity with the ultimate
21 determination to be made by the board whether as qualified, all
22 of which shall be taken into consideration by the Insurance
23 Commissioner in deciding whether or not to assign said risk as
24 aforesaid.
25 The premium to be charged for any and all assigned risks
26 shall be at the highest rate the company to which such risk is
27 assigned charges for the same class of risk when issuing a
28 policy on a voluntary basis.
29 Any and all evidence and testimony submitted to and heard by
30 the board and/or the Insurance Commissioner, relative to the
19750H0805B0908 - 23 -
1 qualifications and insurability of said rejected risk shall be
2 considered confidential as to any and everyone except health
3 care providers, the board, Insurance Commissioner, and their
4 respective attorneys, representatives and staff. No such
5 evidence or testimony presented in any such hearing may or shall
6 be used by a health care provider, or anyone else as a basis for
7 any claim for damages for libel, slander, malicious prosecution
8 or any other potential cause of action, but all such testimony
9 shall be treated for all purposes other than herein provided as
10 privileged.
11 Section 39. Fees.--The administration of this act shall be
12 funded from license fees charged as herein provided.
13 A fee of $25 shall be charged annually to each physician.
14 A fee of $25 shall be charged to, and paid by, each attorney
15 representing each claimant pursuant to the provisions of this
16 act.
17 An annual fee shall be charged to each hospital at a rate of
18 $150 for each 100 beds or fraction thereof.
19 Such fees from physicians and hospitals shall be collected by
20 the board annually at the time of the filing of evidence of
21 financial responsibility under this act. Such fees from
22 attorneys shall be paid at time the complaint is filed, or
23 thereafter as soon as the attorney appears of record.
24 The fund created by the collection of these fees shall be set
25 aside for the sole purpose of financing the annual requirements
26 of the administration of this act. Such additional funds, if
27 any, as may be required for the administration of this act shall
28 be appropriated from the General Fund.
29 Section 40. Repeals.--(a) Section 13 of the act of July 20,
30 1974 (No.190), known as the "Medical Practice Act of 1974," is
19750H0805B0908 - 24 -
1 repealed absolutely.
2 (b) All other acts and parts of acts inconsistent herewith
3 are repealed to the extent of such inconsistency.
4 Section 41. Effective Date.--This act shall take effect
5 January 1, 1976, or six months from the date of final enactment,
6 whichever is later.
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