PRINTER'S NO. 1428
No. 1198 Session of 2003
INTRODUCED BY LEACH, THOMAS, MANN, CAPPELLI, BARD, BUNT,
FRANKEL, MELIO, WASHINGTON AND YOUNGBLOOD, APRIL 16, 2003
REFERRED TO COMMITTEE ON INSURANCE, APRIL 16, 2003
AN ACT
1 Amending the act of March 20, 2002 (P.L.154, No.13), entitled
2 "An act reforming the law on medical professional liability;
3 providing for patient safety and reporting; establishing the
4 Patient Safety Authority and the Patient Safety Trust Fund;
5 abrogating regulations; providing for medical professional
6 liability informed consent, damages, expert qualifications,
7 limitations of actions and medical records; establishing the
8 Interbranch Commission on Venue; providing for medical
9 professional liability insurance; establishing the Medical
10 Care Availability and Reduction of Error Fund; providing for
11 medical professional liability claims; establishing the Joint
12 Underwriting Association; regulating medical professional
13 liability insurance; providing for medical licensure
14 regulation; providing for administration; imposing penalties;
15 and making repeals," further providing for punitive damages;
16 providing for rates and for health care malpractice
17 arbitration; and further providing for applicability.
18 The General Assembly of the Commonwealth of Pennsylvania
19 hereby enacts as follows:
20 Section 1. Section 505 of the act of March 20, 2002
21 (P.L.154, No.13), known as the Medical Care Availability and
22 Reduction of Error (Mcare) Act, is amended to read:
23 Section 505. Punitive damages.
24 [(a) Award.--Punitive damages may be awarded for conduct
25 that is the result of the health care provider's willful or
1 wanton conduct or reckless indifference to the rights of others.
2 In assessing punitive damages, the trier of fact can properly
3 consider the character of the health care provider's act, the
4 nature and extent of the harm to the patient that the health
5 care provider caused or intended to cause and the wealth of the
6 health care provider.
7 (b) Gross negligence.--A showing of gross negligence is
8 insufficient to support an award of punitive damages.
9 (c) Vicarious liability.--Punitive damages shall not be
10 awarded against a health care provider who is only vicariously
11 liable for the actions of its agent that caused the injury
12 unless it can be shown by a preponderance of the evidence that
13 the party knew of and allowed the conduct by its agent that
14 resulted in the award of punitive damages.
15 (d) Total amount of damages.--Except in cases alleging
16 intentional misconduct, punitive damages against an individual
17 physician shall not exceed 200% of the compensatory damages
18 awarded. Punitive damages, when awarded, shall not be less than
19 $100,000 unless a lower verdict amount is returned by the trier
20 of fact.
21 (e) Allocation.--Upon the entry of a verdict including an
22 award of punitive damages, the punitive damages portion of the
23 award shall be allocated as follows:
24 (1) 75% shall be paid to the prevailing party; and
25 (2) 25% shall be paid to the Medical Care Availability
26 and Reduction of Error Fund.]
27 Notwithstanding any other provision of law to the contrary,
28 punitive damages may not be pleaded or awarded against a health
29 care provider in a medical professional liability action.
30 Section 2. The act is amended by adding a section to read:
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1 Section 745.1. Rates.
2 (a) Discount.--Notwithstanding any other provision of law to
3 the contrary, the following shall apply to medical professional
4 liability insurance rates:
5 (1) In 2004, the Insurance Commissioner shall not
6 approve a rate for medical professional liability insurance
7 which is not at least 20% below the average rate in effect on
8 the effective date of this section unless the insurance
9 company is insolvent.
10 (2) For each subsequent year, up to and including 2006,
11 the commissioner shall not approve a rate for medical
12 professional liability insurance which is not at least 20%
13 below the average rate in effect on the effective date of
14 this section unless the commissioner has determined, after
15 holding a hearing, that the insurer is substantially
16 threatened by insolvency, subject to escalation of the
17 average rate in accordance with the Consumer Price Index for
18 All Urban Consumers of the Bureau of Labor Statistics.
19 (3) After 2006, the commissioner shall hold public
20 hearings for any rate increase greater than 15% of the
21 current rate. The commissioner shall give public notice of
22 these hearings and provide health care providers subject to
23 the proposed rate increase access to appropriate documents at
24 least 30 days before the hearings.
25 (4) After 2006, the insurance company shall not increase
26 the rate of a health care provider solely because the health
27 care provider has been sued. A rate may only be increased in
28 this situation if:
29 (i) there was a finding of negligence by a court of
30 competent jurisdiction on behalf of the health care
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1 provider or a reported settlement between the parties; or
2 (ii) the rate is being increased pursuant to
3 paragraph (2).
4 (b) Consumer participation.--The following shall apply
5 concerning consumer participation:
6 (1) Any person may initiate or intervene in any
7 proceeding permitted or established pursuant to this section,
8 challenge any action of the commissioner under this section
9 or enforce any provision of this section.
10 (2) The commissioner or a court of competent
11 jurisdiction shall award reasonable advocacy and witness fees
12 and expenses to any person who demonstrates all of the
13 following:
14 (i) The person represents the interest of consumers.
15 (ii) That he has made a substantial contribution to
16 the adoption of any order, regulation or decision by the
17 commissioner or a court of competent jurisdiction.
18 Where advocacy occurs in response to a rate application, the
19 award shall be paid by the applicant.
20 (3) The commissioner shall:
21 (i) Require every insurance company to enclose
22 notices in every policy or renewal premium bill for
23 medical malpractice liability insurance informing
24 policyholders of the opportunity to join an independent,
25 nonprofit corporation which shall advocate the interests
26 of medical malpractice insurance consumers. This
27 organization shall be established by an interim board of
28 public members designated by the commissioner and
29 operated by individuals who are democratically elected
30 from its membership. The corporation shall
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1 proportionately reimburse insurance companies for any
2 additional costs incurred by insertion of the enclosure,
3 except no postage shall be charged for any enclosure
4 weighing less than one-third of an ounce.
5 (ii) Determine the content of the enclosure and
6 other procedures necessary for implementation of this
7 paragraph.
8 Section 3. The act is amended by adding a chapter to read:
9 CHAPTER 8
10 HEALTH CARE MALPRACTICE ARBITRATION
11 SUBCHAPTER A
12 PRELIMINARY PROVISIONS
13 Section 801. Declaration of policy.
14 The General Assembly finds and declares as follows:
15 (1) The purpose of this chapter is to streamline
16 procedures for the arbitration and adjudication of health
17 care malpractice lawsuits in this Commonwealth so that
18 patients who have sustained injuries as a result of the
19 malpractice of a health care provider may obtain a prompt and
20 efficient adjudication of their claims.
21 (2) The compulsory arbitration system described in this
22 chapter is designed to reduce frivolous claims and expedite
23 the disposition of nonmeritorious or nuisance suits against
24 health care providers.
25 Section 802. Definitions.
26 The following words and phrases when used in this chapter
27 shall have the meanings given to them in this section unless the
28 context clearly indicates otherwise:
29 "Administrator." The Office of Administrator for Health Care
30 Arbitration Panels.
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1 "Arbitration panel." A health care arbitration panel.
2 "Fund." The Health Care Arbitration Panel Fund established
3 in section 812.
4 "Malpractice." Any of the following:
5 (1) A tort or breach of contract caused by an act or the
6 failure to act of a health care provider which results in an
7 injury to a patient.
8 (2) A failure of a health care provider, in rendering
9 health care or professional services, to use the reasonable
10 care, skill or knowledge ordinarily used under similar
11 circumstances.
12 "Patient." An individual who receives or should have
13 received a health care service from a licensed health care
14 provider. The term includes a representative of a deceased,
15 incompetent or incapacitated patient.
16 Section 803. Liability of nonqualifying health care providers.
17 Any person or entity rendering services to a patient normally
18 rendered by a health care provider that fails to qualify as a
19 health care provider under this chapter is subject to liability
20 under the law without regard to the provisions of this chapter.
21 SUBCHAPTER B
22 OFFICE OF ADMINISTRATOR FOR
23 HEALTH CARE ARBITRATION PANELS
24 Section 811. Administrator.
25 (a) Establishment.--There is established within the Office
26 of Attorney General the Office of Administrator for Health Care
27 Arbitration Panels, to be appointed by the Attorney General
28 subject to the approval of a majority of the elected members to
29 the Senate. The administrator shall be an administrative officer
30 under the act of April 9, 1929 (P.L.177, No.175), known as The
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1 Administrative Code of 1929, and shall serve for a term of
2 office as provided by section 208(c) of The Administrative Code
3 of 1929. The salary of the administrator shall be set by the
4 Executive Board.
5 (b) Employees.--The administrator shall appoint a secretary
6 and other employees as required to administer this chapter.
7 (c) Powers and duties.--The administrator has the following
8 powers and duties:
9 (1) To consult with the president judges of the courts
10 of common pleas and the Civil Procedure Rules Committee to
11 develop appropriate and efficient rules of procedure for the
12 transfer of cases from the arbitration panels to the courts
13 of common pleas.
14 (2) To establish health care arbitration centers in each
15 county. The administrator shall utilize existing facilities
16 of the courts of the Commonwealth whenever feasible.
17 (3) To select qualified individuals to serve as
18 arbitration members and, when necessary, require
19 participation by licensed health care providers.
20 (4) To promulgate uniform regulations as necessary to
21 carry out the provisions of this chapter.
22 (d) Removal of administrator for cause.--The administrator
23 may be removed by the Attorney General only for incompetence,
24 neglect of duty, misconduct in office or other good cause to be
25 stated in writing in the order of removal.
26 Section 812. Fund.
27 (a) Establishment.--The Health Care Arbitration Panel Fund
28 is established. The administrator shall administer the fund to
29 compensate panelists, provide training and otherwise implement
30 the provisions of this chapter. The administrator shall
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1 promulgate regulations necessary for the collection of filing
2 fees and premiums for the fund.
3 (b) Funding.--The administrator has the authority to draw on
4 the following sources of funding for the proper administration
5 of the fund:
6 (1) The existing funding sources for the administration
7 of this act.
8 (2) The filing fees under section 827.
9 (3) Whenever necessary, a fee based upon a surcharge of
10 the malpractice premiums paid by health care providers in
11 this Commonwealth.
12 Section 813. Training and selection of panelists.
13 The administrator shall promulgate regulations necessary to
14 provide for the selection and reimbursement of panelists for the
15 efficient administration of this chapter. The administrator is
16 authorized to make payments from the fund to provide
17 compensation to panelists for their services. The administrator
18 is authorized to make payments for the training of panelists and
19 judges of the courts of the Commonwealth, or other individuals
20 where appropriate, for the administration of this chapter.
21 Section 814. Submission of annual report.
22 The administrator shall submit to the Governor, the General
23 Assembly and the Attorney General annually, by March 1, a report
24 of the work of the administrator during the preceding calendar
25 year.
26 SUBCHAPTER C
27 ARBITRATION PANELS
28 Section 821. Establishment.
29 (a) Pool.--The administrator shall establish and maintain a
30 pool from which to select arbitration panelists to hear claims
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1 made under this chapter. Appointments to the pool of panel
2 members shall be made by the administrator with consideration
3 given to individuals recommended by appropriate recognized
4 professional or lay organizations.
5 (b) Composition.--Each arbitration panel shall be composed
6 of three members, including one attorney, who shall be
7 designated as chairperson and who shall determine questions of
8 law once the panel has been convened; one health care provider;
9 and one lay person who is neither a health care provider nor an
10 attorney. The administrator shall select a physician, hospital
11 administrator, podiatrist, osteopathic physician or surgeon,
12 physician assistant, nurse practitioner or nurse-midwife as the
13 health care provider panel member if the claim involves a member
14 of one of those classes of health care providers.
15 (c) Challenge.--Any arbitration panel member selected by the
16 administrator shall be subject to challenge for cause by any
17 party under sections 822(d) and 832. All challenges for cause
18 shall be determined by the administrator.
19 (d) Party selection.--The parties shall not be restricted to
20 arbitration panels drawn from the pool. If all parties mutually
21 agree upon an arbitration panelist or panelists who are
22 otherwise qualified to serve under this chapter, the panelist or
23 panelists shall be invited to serve by the administrator.
24 However, any panel mutually agreed upon by the parties must be
25 composed of three members: one attorney, one health care
26 provider and one lay person.
27 Section 822. Qualifications of panelists.
28 (a) Health care providers.--A health care provider member of
29 the pool under section 821(a) must be a licensed health care
30 provider in this Commonwealth with a minimum of five years'
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1 experience as a licensed health care professional.
2 (b) Attorneys.--The attorney member of the pool under
3 section 821(a) must be admitted to practice before the Supreme
4 Court of the Commonwealth for at least five years, have tried at
5 least one civil case in this Commonwealth, be currently engaged
6 in the practice of law in this Commonwealth and have attended a
7 seminar, approved by the administrator, on health care
8 arbitration practices and procedures.
9 (c) Lay members.--The lay members of the pool under section
10 821(a) must be drawn from the jury lists of the county in which
11 the claim for malpractice was originally filed.
12 (d) Conflicts of interest.--The administrator has the
13 authority to promulgate regulations to define and prevent
14 potential and actual conflict of interests of panelists. The
15 administrator shall decide if and when there is a conflict of
16 interest in an individual case.
17 Section 823. Authority of administrator to compel participation
18 by qualified panelists.
19 The administrator has the authority to compel the
20 participation of health care providers in the arbitration panels
21 when necessary, as set forth in section 811(c)(3). Availability
22 for participation in arbitration panels shall be a condition of
23 licensure for health care providers in this Commonwealth.
24 Section 824. Compensation for panelists.
25 Arbitration panel members shall be paid at a daily or annual
26 salary rate fixed by the administrator, plus actual and
27 necessary expenses incurred in the performance of their official
28 duties. The administrator shall provide for all other necessary
29 expenses of the arbitration panels.
30 Section 825. Jurisdiction and authority.
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1 (a) Establishment of jurisdiction.--An arbitration panel
2 shall have original exclusive jurisdiction to hear and decide
3 any claim brought by patients or their representatives for loss
4 or damages resulting from malpractice. An arbitration panel
5 shall also have original exclusive jurisdiction to hear and
6 decide any claim for malpractice asserted against a nonhealth
7 care provider who is made a party defendant with a health care
8 provider.
9 (b) Loss of jurisdiction.--If an arbitration panel fails to
10 render a decision within 240 days of service of the complaint,
11 any party may file a motion to transfer jurisdiction to the
12 court of common pleas of the judicial district in which the
13 complaint was originally filed. Grant of this motion shall be
14 automatic if a party has demonstrated that 240 days have passed
15 since the filing of the complaint. The administrator shall
16 promulgate regulations to assure the prompt return of filing
17 fees to parties who have not received a hearing within 240 days
18 and who opt to transfer out of the arbitration system.
19 (c) Authority.--In the conduct of arbitration hearings, an
20 arbitration panel has the general powers of a court, including
21 the power to determine the admissibility of evidence, to permit
22 testimony to be offered by depositions and to decide the law and
23 the facts of the case submitted.
24 Section 826. Complaint.
25 (a) Court.--A patient having a claim for loss or damages
26 resulting from malpractice must file a complaint in a court of
27 competent jurisdiction. Complaints for malpractice must state in
28 the upper right hand corner in capital letters: "This is a
29 health care malpractice case." No fee shall be charged for this
30 initial filing.
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1 (b) Administrator.--A patient having a claim for loss or
2 damages resulting from malpractice must also file a copy of the
3 complaint with the administrator. The administrator shall time-
4 stamp the complaint and select a date and time for a health care
5 arbitration hearing for the claim. The hearing shall be
6 scheduled no more than 210 days after the filing of the
7 complaint with the administrator, and the date of the hearing
8 shall be clearly written on the time-stamped copy of the
9 complaint. This is the only notice of the hearing which the
10 parties will receive.
11 (c) Service.--The patient shall serve copies of the time-
12 stamped complaint with the notice of hearing date on all parties
13 in compliance with the Pennsylvania Rules of Civil Procedure and
14 the local rules of the court in which the original complaint was
15 filed.
16 (d) Content.--The complaint must contain a clear and concise
17 statement of the facts of the case, showing the persons involved
18 and the dates and circumstances, so far as known, of the alleged
19 instance of malpractice.
20 (e) Notice to court.--No more than three days after a
21 complaint has been filed with the administrator under subsection
22 (b), the administrator shall notify the court where the
23 complaint was filed under subsection (a) that the case has been
24 scheduled for a health care arbitration hearing. The court, upon
25 receiving a notice from the arbitrator, shall mark the case
26 "Transferred to an Arbitration Panel" on the docket but shall
27 consider the case as filed on the date of the original filing
28 with the court for purposes of reserving a spot for the case on
29 the trial list.
30 (f) Limitation of actions.--The original filing of the
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1 complaint under subsection (a) shall toll the statute of
2 limitations.
3 (g) Pleading deadlines.--For purposes of calculating the
4 pleading deadlines described in this chapter, the administrator
5 shall refer to the date the complaint was filed with the
6 administrator under subsection (b).
7 (h) Limitation of action.--
8 (1) Except as provided in paragraph (2), a civil action
9 for malpractice must be commenced within four years from the
10 date the breach of contract or tort occurred. This subsection
11 shall apply even though the alleged malpractice is not
12 discovered until after four years from the date.
13 (2) If a civil action for malpractice is based upon any
14 of the following, the action must be commenced within four
15 years from the date that the patient knows or, with
16 reasonable diligence, should know that medical negligence has
17 occurred:
18 (i) Injuries resulting from radiation treatment or
19 therapy.
20 (ii) Injuries resulting from the ingestion of
21 medications and therapeutic drugs.
22 (iii) Injuries resulting from the retention of a
23 foreign substance in the body of the patient as a result
24 of a surgical or other invasive procedure or as a result
25 of any injury received by the patient prior to treatment
26 by the provider.
27 (iv) Injuries the cause of which or the nature of
28 which were fraudulently concealed from the patient.
29 (v) Injuries occurring prior to the date the injured
30 patient attains majority.
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1 Section 827. Filing fees.
2 (a) Plaintiff.--The patient shall pay the administrator a
3 $50 filing fee to process the complaint.
4 (b) Defendant.--Any defendant named in the patient's
5 complaint or otherwise made a party to the lawsuit before the
6 arbitration panel shall pay a filing fee of $350 upon the filing
7 of an answer to the complaint.
8 (c) Refunds.--The administrator shall promulgate regulations
9 and establish procedures for the refund of filing fees to
10 defendants who are improperly or mistakenly named in a lawsuit
11 before an arbitration panel.
12 (d) Exclusive fee.--There shall be no other filing fees for
13 an arbitration panel.
14 Section 828. Pleadings.
15 (a) General rule.--Except as otherwise provided in this
16 chapter, the Pennsylvania Rules of Civil Procedure shall apply
17 to all pleadings, motions and petitions before an arbitration
18 panel.
19 (b) Time requirement.--Notwithstanding the provisions of
20 subsection (a), the administrator shall not accept for
21 consideration any motion or petition filed less than 45 days
22 before the scheduled hearing. The administrator shall rule on
23 all outstanding pleadings, motions and petitions at least 15
24 days before the scheduled hearing.
25 (c) Discovery.--In ruling on discovery motions, the
26 administrator shall encourage the prompt compliance with
27 requests for discovery. The administrator shall establish a
28 strict policy against any party's failure to comply with a
29 discovery request.
30 (d) Expert opinions.--
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1 (1) No more than 90 days after the filing of a
2 complaint, a patient must serve on all parties one or more
3 expert opinions which must, at a minimum, state that the
4 expert has reviewed the available relevant evidence,
5 including the patient's medical records, and concluded that,
6 to a reasonable degree of medical certainty, malpractice by
7 the health care provider occurred. A patient must submit at
8 least one expert opinion which meets the requirements of this
9 paragraph in order for the action to proceed to arbitration.
10 (2) Within 15 days after receipt of an expert opinion, a
11 party may file a motion with the administrator to contest the
12 sufficiency of the expert opinion under paragraph (1).
13 (3) Within 15 days after receipt of a motion from any
14 party, the administrator shall rule on the sufficiency of the
15 patient's expert opinion under paragraph (1). In ruling on
16 the sufficiency of the expert opinion, the administrator
17 shall consider whether the person rendering the expert
18 opinion would qualify as an expert witness under the rules of
19 evidence and the Pennsylvania Rules of Civil Procedure.
20 (4) If the administrator rules that the expert opinion
21 is not sufficient, the patient may file an amended complaint
22 and expert opinion with the administrator and serve all
23 parties within 30 days.
24 (5) The administrator shall rule on the sufficiency of
25 an amended expert opinion within 15 days of the date upon
26 which it is filed.
27 (6) If the administrator rules that the expert opinion
28 is sufficient, the administrator shall begin the processes of
29 convening an arbitration panel to hear the patient's case.
30 (7) If the administrator rules that the expert opinion
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1 is not sufficient, the patient's case shall be dismissed from
2 the arbitration system. The arbitrator's decision under this
3 paragraph shall be final and appealable to the court of
4 common pleas in the judicial district where the case was
5 originally filed. In filing for an appeal, the patient shall
6 be entitled to a trial de novo, but must pay for the
7 defendant's filing fees in the court of common pleas.
8 Section 829. Joinder of necessary party.
9 (a) Motion.--A motion for joinder of a necessary party must
10 be filed with the administrator and served on all parties no
11 more than 120 days after the filing of the complaint.
12 (b) Ruling.--The administrator shall rule on the motion
13 within ten days of service on all parties.
14 Section 830. Continuance.
15 The administrator shall establish a strict policy against
16 continuances of arbitration cases. Regulations for the
17 continuance of a hearing date shall include the following
18 provisions:
19 (1) No continuance will be granted if requested at any
20 time less than 14 days prior to the date of the arbitration
21 hearing except for an emergency situation. An emergency
22 situation consists exclusively and solely of circumstances of
23 which counsel could not have reasonably been aware. In an
24 emergency situation, counsel requesting a continuance must
25 state the nature of the emergency and justify with
26 particularity the reason why the situation could not have
27 been foreseen. An application which does not comply with this
28 paragraph shall not be accepted, and the hearing shall
29 proceed as scheduled.
30 (2) (i) All applications for continuances submitted at
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1 a date at least 14 days prior to the date of the
2 arbitration hearing must in writing define the basis for
3 the request for continuance, certify that all counsel
4 have been notified of the application, state the position
5 of all other counsel and offer an alternative date and
6 time which is mutually convenient to all counsel. The
7 alternative hearing date must be within 14 days of the
8 original listing. Any application lacking the required
9 specificity and detail shall not be accepted and the
10 hearing shall proceed as scheduled.
11 (ii) An arbitration hearing may be rescheduled, by
12 expressed approval of all counsel, for a date and time
13 not later than two weeks subsequent to the originally
14 scheduled hearing. The date and time of the hearing, as
15 rescheduled, must be communicated by the parties to the
16 administrator not later than two weeks prior to the
17 originally scheduled hearing.
18 (3) If any of the following reasons for the requested
19 continuance apply, the party shall bring the information
20 stated after each of the following to the attention of the
21 administrator:
22 (i) A material witness or party has not yet been
23 produced or submitted to a deposition even though a
24 motion to compel deposition has already been filed of
25 record.
26 (ii) Service has not been effected upon a defendant
27 or additional defendant. The appropriate party shall
28 describe with particularity facts supporting the
29 contention that due diligence has been exercised in
30 attempting service on another party but that service
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1 could not have been obtained prior to the date of the
2 arbitration hearing.
3 (iii) A party or material witness or counsel is
4 confined to home, bed or a hospital due to illness; is
5 under the care of a physician or hospital; and will be
6 available for attendance at the arbitration hearing in
7 less than 20 days.
8 Section 831. Prearbitration conference.
9 (a) Timing.--The administrator shall schedule a
10 prearbitration conference after the certification of the expert
11 opinion under section 828(d)(6), but not more than 180 days
12 after the filing of the complaint. For good cause shown, the
13 administrator may continue the prearbitration conference once,
14 for a period of not more than seven days.
15 (b) Purposes.--The primary purposes of the prearbitration
16 conference are to resolve any disputes regarding the identity or
17 qualifications of panelists and to see whether a settlement of
18 the claim may be reached. The administrator has the power and
19 duty to rule on outstanding motions or petitions at the
20 prearbitration conference.
21 (c) Other issues.--The administrator shall determine the
22 following issues:
23 (1) Whether the matter can be settled.
24 (2) Whether all parties have acted in accordance with
25 this chapter.
26 (3) Whether there are any outstanding motions.
27 (4) Whether there is just cause for permitting
28 additional time for discovery.
29 Section 832. Selection of arbitration panel.
30 (a) Procedure.--The parties shall notify the administrator
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1 as soon as possible if they have been able to mutually agree to
2 the selection of an arbitration panel. The administrator shall
3 hear motions to disqualify panelists at the prearbitration
4 conference. If the parties cannot agree to a list of panelists
5 within seven days of the prearbitration conference, the
6 administrator has the authority to unilaterally select an
7 arbitration panel within five days.
8 (b) Notice.--
9 (1) The administrator shall notify the parties and the
10 members selected to serve on the arbitration panel as soon as
11 selections have been made. Copies of all pleadings, motions
12 and relevant evidence of record shall be made available to
13 each panelist.
14 (2) A selected panelist shall serve unless excused for
15 good cause shown. To show good cause for relief from serving,
16 the panelist must serve an affidavit upon the administrator.
17 The affidavit shall set out the facts showing that serving on
18 the panel would constitute an unreasonable burden or undue
19 hardship. If any member so selected is deemed unable to
20 serve, the administrator shall immediately select a
21 replacement from the list.
22 Section 833. Prearbitration memorandum.
23 (a) Summary of case.--Not less than ten days prior to the
24 arbitration hearing date, each party shall file a prearbitration
25 memorandum, which shall include, but shall not be limited to:
26 (1) Statement of facts.
27 (2) Brief statement of the applicable law.
28 (3) List of fact witnesses.
29 (4) List of expert witnesses.
30 (5) List of exhibits.
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1 (6) Statement of damages.
2 (b) Memorandum of law.--Each party shall also prepare a
3 short, written memorandum of law on any point of law which is
4 complex or unsettled which may arise during the conduct of the
5 hearing. A memorandum of law prepared for the arbitration panel
6 must be exchanged with opposing counsel at least five days in
7 advance of the hearing.
8 (c) Opening statement.--Each party shall also prepare a
9 brief opening statement which summarizes the nature of the
10 action the arbitration panel will be asked to consider.
11 Section 834. Prehearing documents procedure.
12 (a) Evidence.--The arbitration panel may receive into
13 evidence certain documents without further proof. These
14 documents include bills, records and reports of hospitals,
15 doctors and other health care providers; bills for drugs,
16 medical appliances and prostheses; reports of rate or earnings
17 and time lost from work or lost compensation prepared by an
18 employer; and expert witness reports.
19 (b) Notice.--At least 20 days prior to the first date
20 assigned for a hearing, each party must notify the opposing
21 party of the intention to offer into evidence a bill, record or
22 report, including the report of an expert, to be presented at
23 the hearing. A copy of a bill, record or report which the party
24 will offer into evidence must also be served upon the adverse
25 party at least 20 days prior to the hearing.
26 Section 835. Subpoena practice.
27 (a) General rule.--Subpoena practice before the health care
28 arbitration panels shall be conducted in essentially the same
29 fashion as that followed in nonarbitration cases. A subpoena to
30 testify or for the production of documents or things shall be
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1 substantially in the form provided by Pa.R.C.P. Nos. 234.1
2 through 234.9.
3 (b) Documentary evidence.--If a party chooses to offer into
4 evidence a bill, report or estimate under section 834 rather
5 than to present the testimony of the maker, any other party
6 shall have the right to subpoena to appear at the hearing the
7 person whose testimony is waived. Any adverse party may cross-
8 examine the subpoenaed witness as to the document prepared,
9 including an expert report, as though the witness were a witness
10 for the party offering the document.
11 (c) Fees and costs.--Any party who subpoenas a witness under
12 subsection (b) shall pay the witness fees and costs of the
13 witness for appearing before the arbitration panel.
14 Section 836. Hearings.
15 (a) Chairperson.--The attorney member of the arbitration
16 panel shall serve as the chairperson of the panel and shall make
17 all rulings regarding the rules of evidence and procedure during
18 the hearing. The attorney member shall explain the reasons for
19 decisions to the other panelists.
20 (b) Conduct.--All parties shall be allowed to present
21 testimony and evidence related to their pleadings before the
22 arbitration panel. The administrator shall promulgate
23 regulations necessary for the orderly and efficient conduct of
24 the hearings. No hearing may last more than five days.
25 (c) Evidence.--
26 (1) Hearings shall be conducted in accordance with the
27 established rules of evidence, liberally construed to promote
28 justice, except that expert witness reports and the evidence
29 permitted by Pa.R.C.P. No. 1305(b) shall be received in
30 evidence without further proof if at least 20 days' written
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1 notice, accompanied by a copy of the item, was given to the
2 adverse party.
3 (2) The arbitration panel shall consider all the
4 documentary material, including the complaint, answer and
5 response; health care records and records of a hospital or
6 office; and the testimony of any expert witnesses the panel
7 considers necessary. The arbitration panel shall determine
8 only from that evidence whether, by a preponderance of the
9 evidence, the acts complained of constitute malpractice.
10 (d) Decision.--The written findings of the arbitration panel
11 shall be based upon a vote of the members of the arbitration
12 panel made by written ballot, shall be rendered within five days
13 after the review and shall make at least one of the following
14 determinations:
15 (1) Based upon a review of the materials submitted by
16 the parties and the testimony of medical experts (if any were
17 called), we find by a preponderance of the evidence that
18 health care malpractice occurred and that the patient was
19 injured thereby.
20 (2) Based upon a review of the materials submitted by
21 the parties and the testimony of medical experts (if any were
22 called), we find by a preponderance of the evidence that no
23 health care malpractice occurred.
24 (3) Based upon a review of the materials submitted by
25 the parties and the testimony of medical experts (if any were
26 called), there should be no decision on the issue of health
27 care malpractice practice until more discovery is conducted.
28 (e) Voting.--A majority vote of the full arbitration panel
29 is required to decide all matters before it.
30 (f) Charge.--The arbitration chairperson shall request that
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1 the administrator provide appropriate jury instructions for a
2 panelist upon the request of a panelist before making any
3 decision on the merits of the case.
4 Section 837. Assessment of damages.
5 (a) General rule.--If the arbitration panel determines that
6 malpractice has occurred, the arbitration panel shall make a
7 determination as to the amount of damages awarded to the
8 patient.
9 (b) Collateral source rule.--In estimating the damages due
10 to the patient, the arbitration panel shall apply the collateral
11 source rule. In applying the collateral source rule, the
12 arbitration panel shall consider, where available, the medical
13 bills paid on the patient's behalf, the lost wages received by a
14 patient through private insurance, worker's compensation
15 insurance, employer-paid disability programs and Social Security
16 payments before estimating the total damages due to the patient.
17 (c) Pain and suffering.--In estimating the patient's total
18 damages, the arbitration panel may consider awarding damages for
19 pain and suffering and for punitive damages. The arbitration
20 panel's estimate of punitive damages shall bear a reasonable
21 relation to the patient's actual damages.
22 (d) Approval.--In accordance with section 836(e), a majority
23 of the arbitration panel members shall approve of a written
24 statement of the patient's damages.
25 (e) Advance payments.--In an action brought to recover
26 damages under this chapter, no advance payment made by the
27 defendant health care provider or a professional liability
28 insurer to or for the plaintiff shall be construed as an
29 admission of liability for injuries or damages suffered by the
30 plaintiff.
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1 Section 838. Appointment of expert witnesses.
2 The arbitration panel may, upon the application of either
3 party or upon its own motion, appoint a disinterested and
4 qualified expert to make any necessary professional or expert
5 examination of the claimant or relevant evidentiary matter and
6 to testify as a witness in respect thereto. The expert witness
7 shall be allowed necessary expenses and a reasonable fee to be
8 fixed and paid by the arbitration panel.
9 Section 839. Additional powers and duties of arbitration panel.
10 In addition to the powers and duties under sections 836, 837
11 and 838, the arbitration panel has the following powers and
12 duties:
13 (1) To make findings of fact.
14 (2) To take depositions and testimony where necessary to
15 make a determination.
16 (3) To subpoena witnesses and administer oaths.
17 (4) To apply to a court of competent jurisdiction to
18 enforce the attendance and testimony of witnesses and the
19 production and examination of books, papers and records.
20 (5) To exercise all other powers and duties necessary
21 for the execution of this chapter.
22 Section 840. Decisions.
23 Written copies of the arbitration panel's decision and
24 estimate of damages shall be sent to each party at the same time
25 it is submitted to the administrator.
26 Section 841. Duties of Court of Medical Claims.
27 The Court of Medical Claims shall have the duty to:
28 (1) Rule on questions regarding the sufficiency of
29 expert opinions as described in section 828(d).
30 (2) Prior to appointment of an arbitration panel
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1 chairperson, rule on all prearbitration pleadings, motions
2 and petitions.
3 (3) Rule on questions related to disputes, involving the
4 advancement and continuances of arbitration hearings and the
5 qualifications of any panel members.
6 (4) Rule on any other questions regarding interpretation
7 of this chapter and related regulations for purposes of
8 administering this chapter.
9 SUBCHAPTER D
10 APPEALS FROM AND ENFORCEMENT OF
11 DECISIONS OF ARBITRATION PANELS
12 Section 851. Judicial review.
13 Appeals from determinations made by an arbitration panel must
14 be made to the appropriate court of common pleas within 30 days
15 of receipt of the decision. The review shall be in the form of a
16 trial de novo in the appropriate court of common pleas.
17 Section 852. Record on appeal.
18 (a) Admissibility.--If an appeal is taken, the decision,
19 findings of fact and estimate of damages of the arbitration
20 panel shall be admissible as evidence before the court.
21 (b) Offer.--Although admissible, the decision and findings
22 of fact of the arbitration panel shall not be deemed conclusive
23 as a matter of law. The admission of an arbitration panel's
24 decision shall not create a presumption of validity and shall
25 not serve to shift the burden of going forward with the
26 evidence.
27 Section 853. Transfer and enforcement of judgment.
28 (a) Procedure.--If an appeal is not entered within the time
29 period set forth in section 851, the party in whose favor the
30 award has been made may request the administrator to transfer
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1 the record and judgment to the court of common pleas in the
2 judicial district where the complaint under section 826(a) was
3 filed. It shall be the duty of the prothonotary, at the request
4 of the party in whose favor the award was made and upon receipt
5 and filing of the arbitration award from the administrator, to
6 issue execution or such other process as necessary to carry into
7 effect the judgment entered upon the award, subject to the
8 provisions of law concerning the stay of execution upon
9 judgments.
10 (b) Effect.--The plaintiff may proceed upon the transferred
11 record and judgment for the collection of the judgment in the
12 same manner as if the judgment was from the court to which it
13 has been transferred. Upon a finding by the arbitration panel
14 that the defendant's conduct was tortious or constituted a
15 breach of contract, the plaintiff shall have the same rights of
16 recovery for damages as are now provided by law.
17 Section 4. Section 5105 of the act is amended to read:
18 Section 5105. Applicability.
19 (a) Patient safety discount.--Section 312 shall apply to
20 policies issued or renewed after December 31, 2002.
21 (b) Actions.--Sections 504(d)(2), [505(e),] 508, 509, 510,
22 513 and 516 shall apply to causes of action which arise on or
23 after the effective date of this section.
24 Section 5. The amendment of sections 505 and 5105 of the act
25 shall apply to causes of action the initial filing of which
26 occur on or after the effective date of this act.
27 Section 6. This act shall take effect as follows:
28 (1) The following provisions shall take effect upon
29 publication of regulations under section 811(c)(4) of the
30 act:
20030H1198B1428 - 26 -
1 (i) Sections 825 through 836 of the act.
2 (ii) Subchapter D of Chapter 8 of the act.
3 (2) The remainder of this act shall take effect
4 immediately.
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