THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY GODSHALL, BAKER, BARRAR, BENNINGHOFF, BEYER, BOYD, CLYMER, CREIGHTON, EVERETT, FAIRCHILD, GROVE, HORNAMAN, HUTCHINSON, KILLION, KORTZ, MOUL, MUSTIO, O'NEILL, PAYNE, PYLE, REED, REICHLEY, SAYLOR, STERN, SWANGER, TURZAI AND GINGRICH, FEBRUARY 2, 2009

REFERRED TO COMMITTEE ON INSURANCE, FEBRUARY 2, 2009  

AN ACT

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

"An act reforming the law on medical professional liability;

providing for patient safety and reporting; establishing the

Patient Safety Authority and the Patient Safety Trust Fund;

abrogating regulations; providing for medical professional

liability informed consent, damages, expert qualifications,

limitations of actions and medical records; establishing the

Interbranch Commission on Venue; providing for medical

professional liability insurance; establishing the Medical

Care Availability and Reduction of Error Fund; providing for

medical professional liability claims; establishing the Joint

Underwriting Association; regulating medical professional

liability insurance; providing for medical licensure

regulation; providing for administration; imposing penalties;

and making repeals,"providing for hospital care or assistance

necessitated by traumatic injury immunity.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

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

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

Act, is amended by adding a section to read:

Section 517.  Hospital care or assistance necessitated by

traumatic injury immunity.

(a)  General rule.--Except as provided in subsection (b), a

hospital that in good faith renders care or assistance

necessitated by a traumatic injury demanding immediate medical

attention, for which the patient enters the hospital through its

emergency room or trauma center, may not be held liable for

noneconomic and punitive damages to or for the benefit of any

claimant arising out of any act or omission in rendering that

care or assistance if the care or assistance is rendered in good

faith and in a manner not amounting to gross negligence or

reckless, willful or wanton conduct.

(b)  Exception.--The limitation on liability provided

pursuant to this section does not apply to any act or omission

in rendering care or assistance:

(1)  which occurs after the patient is stabilized and is

capable of receiving medical treatment as a nonemergency

patient, unless surgery is required as a result of the

emergency within a reasonable time after the patient is

stabilized, in which case the limitation on liability

provided by subsection (a) applies to any act or omission in

rendering care or assistance which occurs before the

stabilization of the patient following the surgery; or

(2)  unrelated to the original traumatic injury.

(c)  Rebuttable presumption.--There is a rebuttable

presumption that a medical condition that arises during the

course of follow-up care was the result of the original

traumatic injury and that the limitation on liability provided

by subsection (a) applies with respect to the medical condition

that arises during the course of the follow-up care if:

(1)  a physician provides follow-up care to a patient to

whom he rendered care or assistance pursuant to subsection

(a);

(2)  a medical condition arises during the course of the

follow-up care that is directly related to the original

traumatic injury for which care or assistance was rendered

pursuant to subsection (a); and

(3)  the patient files medical professional liability

action based on the medical condition that arises during the

course of the follow-up care.

(d)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection:

"Hospital."  The term includes any of the following:

(1)  A hospital accredited as a Level I or Level II or

pediatric trauma center by the Pennsylvania Trauma Systems

Foundation under the act of July 3, 1985 (P.L.164, No.45),

known as the Emergency Medical Services Act, and which is a

nonprofit organization.

(2)  An employee of a hospital described in paragraph (1)

who renders care or assistance to patients.

(3)  A physician who renders care or assistance in a

hospital described in paragraph (1), whether or not the care

or assistance was rendered gratuitously or for a fee.

(4)  A physician who renders care or assistance in a

hospital of a governmental entity that has been designated as

a center for the treatment of traumatic injuries, whether or

not the care or assistance was rendered gratuitously or for a

fee.

(5)  A hospital as defined in section 103.

"Reckless, willful or wanton conduct."  That conduct which a

person knew or should have known at the time he rendered the

care or assistance would be likely to result in injury so as to

affect the life or health of another person, taking into

consideration to the extent applicable:

(1)  the extent or serious nature of the prevailing

circumstances;

(2)  the lack of time or ability to obtain appropriate

consultation;

(3)  the lack of a prior medical relationship with the

patient;

(4)  the inability to obtain an appropriate medical

history of the patient; and

(5)  the time constraints imposed by coexisting

emergencies.

"Traumatic injury."  Any acute injury which, according to

standardized criteria for triage in the field, involves a

significant risk of death or the precipitation of complications

or disabilities.

Section 2.  All acts and parts of acts are repealed insofar

as they are inconsistent with the provisions of this act.

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