SENATE AMENDED
PRIOR PRINTER'S NOS. 2317, 2788, 3202 PRINTER'S NO. 3320
No. 1802 Session of 2001
INTRODUCED BY MICOZZIE, DeLUCA, ADOLPH, BEBKO-JONES, BUXTON,
FICHTER, GANNON, GODSHALL, LAWLESS, McGILL, MELIO, PIPPY,
SATHER, SCHRODER, WASHINGTON, ZUG, ALLEN, ARGALL, M. BAKER,
BARD, BROWNE, BUTKOVITZ, CAPPELLI, CIVERA, L. I. COHEN,
COLAFELLA, COLEMAN, CORRIGAN, COY, DALEY, DALLY, FAIRCHILD,
FEESE, FRANKEL, GABIG, GORDNER, HARHAI, HASAY, HERMAN, HESS,
HORSEY, JAMES, LAUGHLIN, LEH, LESCOVITZ, MACKERETH, MAHER,
MARKOSEK, McCALL, McILHATTAN, McILHINNEY, S. MILLER,
READSHAW, ROBINSON, ROHRER, RUBLEY, SAINATO, SAYLOR, SCHULER,
SEMMEL, SHANER, SOLOBAY, STEIL, STERN, T. STEVENSON,
E. Z. TAYLOR, THOMAS, TIGUE, TRICH, WATSON, J. WILLIAMS,
WILT, WOGAN, M. WRIGHT, YOUNGBLOOD, FLICK, C. WILLIAMS,
BENNINGHOFF, WOJNAROSKI, GEIST, ARMSTRONG, GEORGE, LEWIS,
BASTIAN, ROBERTS, TURZAI AND J. BAKER, JUNE 19, 2001
SENATOR THOMPSON, APPROPRIATIONS, IN SENATE, RE-REPORTED AS
AMENDED, FEBRUARY 12, 2002
AN ACT
1 Amending the act of October 15, 1975 (P.L.390, No.111), entitled <--
2 "An act relating to medical and health related malpractice
3 insurance, prescribing the powers and duties of the Insurance
4 Department; providing for a joint underwriting plan; the
5 Arbitration Panels for Health Care, compulsory screening of
6 claims; collateral sources requirement; limitation on
7 contingent fee compensation; establishing a Catastrophe Loss
8 Fund; and prescribing penalties," further providing for
9 definitions and for statute of limitations; establishing the
10 Medical Professional Liability Catastrophe Loss Fund
11 Authority and the Medical Professional Liability Catastrophe
12 Loss Fund; providing for jurisdiction, for change of venue,
13 for contracts for limitation of noneconomic damages, for
14 joint and several liability, for expert witness
15 qualifications, for liability for misrepresentation to seek
16 informed consent, for loss of pleasures of life, for pretrial
17 disposition of frivolous medical professional liability
18 claims, for collateral sources, for periodic payment of
19 future damages, for permissible argument as to damages at
20 trial; further providing for mandatory reporting, for
1 investigations, for reporting to licensure boards and for
2 duty to notify licensing board about certain arrests; further
3 providing for hearings; providing for confidentiality of
4 certain records; further providing for review by State
5 licensing boards; providing for continuing medical education,
6 for board-imposed civil penalties and for mandatory referral
7 for claims history; adding provisions relating to patient
8 safety; establishing the Patient Safety Authority; and
9 providing for preservation and accuracy of medical records
10 and for the powers and duties of the authority and the
11 Department of Health.
12 REFORMING THE LAW ON MEDICAL PROFESSIONAL LIABILITY; PROVIDING <--
13 FOR PATIENT SAFETY AND REPORTING; ESTABLISHING THE PATIENT
14 SAFETY AUTHORITY AND THE PATIENT SAFETY TRUST FUND;
15 ABROGATING REGULATIONS; PROVIDING FOR MEDICAL PROFESSIONAL
16 LIABILITY INFORMED CONSENT, DAMAGES, EXPERT QUALIFICATIONS,
17 LIMITATIONS OF ACTIONS AND MEDICAL RECORDS; ESTABLISHING THE
18 INTERBRANCH COMMISSION ON VENUE; PROVIDING FOR MEDICAL
19 PROFESSIONAL LIABILITY INSURANCE; ESTABLISHING THE MEDICAL
20 CARE AVAILABILITY AND REDUCTION OF ERROR FUND; PROVIDING FOR
21 MEDICAL PROFESSIONAL LIABILITY CLAIMS; ESTABLISHING THE JOINT
22 UNDERWRITING ASSOCIATION; REGULATING MEDICAL PROFESSIONAL
23 LIABILITY INSURANCE; PROVIDING FOR MEDICAL LICENSURE
24 REGULATION; PROVIDING FOR ADMINISTRATION; IMPOSING PENALTIES;
25 AND MAKING REPEALS.
26 TABLE OF CONTENTS
27 CHAPTER 1. PRELIMINARY PROVISIONS
28 SECTION 101. SHORT TITLE.
29 SECTION 102. DECLARATION OF POLICY.
30 SECTION 103. DEFINITIONS.
31 SECTION 104. LIABILITY OF NONQUALIFYING HEALTH CARE PROVIDERS.
32 SECTION 105. PROVIDER NOT A WARRANTOR OR GUARANTOR.
33 CHAPTER 3. PATIENT SAFETY
34 SECTION 301. SCOPE.
35 SECTION 302. DEFINITIONS.
36 SECTION 303. ESTABLISHMENT OF PATIENT SAFETY AUTHORITY.
37 SECTION 304. POWERS AND DUTIES.
38 SECTION 305. PATIENT SAFETY TRUST FUND.
39 SECTION 306. DEPARTMENT RESPONSIBILITIES.
40 SECTION 307. PATIENT SAFETY PLANS.
41 SECTION 308. REPORTING AND NOTIFICATION.
42 SECTION 309. PATIENT SAFETY OFFICER.
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1 SECTION 310. PATIENT SAFETY COMMITTEE.
2 SECTION 311. CONFIDENTIALITY AND COMPLIANCE.
3 SECTION 312. PATIENT SAFETY DISCOUNT.
4 SECTION 313. MEDICAL FACILITY REPORTS AND NOTIFICATIONS.
5 SECTION 314. EXISTING REGULATIONS.
6 CHAPTER 5. MEDICAL PROFESSIONAL LIABILITY
7 SECTION 501. SCOPE.
8 SECTION 502. DECLARATION OF POLICY.
9 SECTION 503. DEFINITIONS.
10 SECTION 504. INFORMED CONSENT.
11 SECTION 505. PUNITIVE DAMAGES.
12 SECTION 506. AFFIDAVIT OF NONINVOLVEMENT.
13 SECTION 507. ADVANCE PAYMENTS.
14 SECTION 508. COLLATERAL SOURCES.
15 SECTION 509. PAYMENT OF DAMAGES.
16 SECTION 510. REDUCTION TO PRESENT VALUE.
17 SECTION 511. PRESERVATION AND ACCURACY OF MEDICAL RECORDS.
18 SECTION 512. EXPERT QUALIFICATIONS.
19 SECTION 513. STATUTE OF LIMITATIONS.
20 SECTION 514. INTERBRANCH COMMISSION ON VENUE.
21 CHAPTER 7. INSURANCE
22 SUBCHAPTER A. PRELIMINARY PROVISIONS
23 SECTION 701. SCOPE.
24 SECTION 702. DEFINITIONS.
25 SUBCHAPTER B. FUND
26 SECTION 711. MEDICAL PROFESSIONAL LIABILITY INSURANCE.
27 SECTION 712. MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR
28 FUND.
29 SECTION 713. ADMINISTRATION OF FUND.
30 SECTION 714. MEDICAL PROFESSIONAL LIABILITY CLAIMS.
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1 SECTION 715. EXTENDED CLAIMS.
2 SECTION 716. PODIATRIST LIABILITY.
3 SUBCHAPTER C. JOINT UNDERWRITING ASSOCIATION
4 SECTION 731. JOINT UNDERWRITING ASSOCIATION.
5 SECTION 732. MEDICAL PROFESSIONAL LIABILITY INSURANCE.
6 SECTION 733. DEFICIT.
7 SUBCHAPTER D. REGULATION OF MEDICAL PROFESSIONAL
8 LIABILITY INSURANCE
9 SECTION 741. APPROVAL.
10 SECTION 742. APPROVAL OF POLICIES ON "CLAIMS MADE" BASIS.
11 SECTION 743. REPORTS TO COMMISSIONER AND CLAIMS INFORMATION.
12 SECTION 744. PROFESSIONAL CORPORATIONS, PROFESSIONAL
13 ASSOCIATIONS AND PARTNERSHIPS.
14 SECTION 745. ACTUARIAL DATA.
15 SECTION 746. MANDATORY REPORTING.
16 SECTION 747. CANCELLATION OF INSURANCE POLICY.
17 SECTION 748. REGULATIONS.
18 CHAPTER 9. ADMINISTRATIVE PROVISIONS
19 SECTION 901. SCOPE.
20 SECTION 902. DEFINITIONS.
21 SECTION 903. REPORTING.
22 SECTION 904. COMMENCEMENT OF INVESTIGATION AND ACTION.
23 SECTION 905. ACTION ON NEGLIGENCE.
24 SECTION 906. CONFIDENTIALITY AGREEMENTS.
25 SECTION 907. CONFIDENTIALITY OF RECORDS OF LICENSURE BOARDS.
26 SECTION 908. LICENSURE BOARD-IMPOSED CIVIL PENALTY.
27 SECTION 909. LICENSURE BOARD REPORT.
28 SECTION 910. CONTINUING MEDICAL EDUCATION.
29 CHAPTER 51. MISCELLANEOUS PROVISIONS
30 SECTION 5101. OVERSIGHT.
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1 SECTION 5102. PRIOR FUND.
2 SECTION 5103. NOTICE.
3 SECTION 5104. REPEALS.
4 SECTION 5105. APPLICABILITY.
5 SECTION 5106. CONTINUATION.
6 SECTION 5107. EFFECTIVE DATE.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. The title of the act of <--
10 October 15, 1975 (P.L.390, No.111),
11 known as the Health Care Services Malpractice Act,
12 is amended to read:
13 AN ACT
14 Relating to medical and health related malpractice insurance,
15 prescribing the powers and duties of the Insurance
16 Department; providing for a joint underwriting plan; the
17 Arbitration Panels for Health Care, compulsory screening of
18 claims; collateral sources requirement; limitation on
19 contingent fee compensation; establishing [a] Medical
20 Professional Liability Catastrophe Loss Authority Fund;
21 establishing the Medical Professional Liability Catastrophe
22 Loss Authority; adding provisions relating to patient safety;
23 establishing the Patient Safety Authority and Patient Safety
24 Trust Fund; and providing for the powers and duties of the
25 Department of Health; and prescribing penalties.
26 Section 2. Sections 103 and 605 of the act, amended November
27 26, 1996 (P.L.776, No.135), are amended to read:
28 Section 103. Definitions.--As used in this act:
29 "Birth center" means an entity licensed under the act of July
30 19, 1979 (P.L.130, No.48), known as the "Health Care Facilities
20010H1802B3320 - 5 -
1 Act," as a birth center.
2 "Claimant" means a patient and includes a patient's immediate
3 family, guardian, personal representative or estate.
4 "Claims made" means [a policy of] medical professional
5 liability insurance that [would limit or restrict the liability
6 of the insurer under the policy to only] insures those claims
7 made or reported during the [currency of the policy period and
8 would exclude] period which is insured and excludes coverage for
9 [claims] a claim reported subsequent to the [termination even
10 when such claims resulted from occurrences during the currency
11 of the policy] period even if the claim resulted from an
12 occurrence during the period which was insured.
13 "Claims period" means the period from September 1 to the
14 following August 31.
15 "Commissioner" means the Insurance Commissioner of this
16 Commonwealth.
17 "Department" means the Insurance Department of the
18 Commonwealth.
19 ["Director" means the Director of the Medical Professional
20 Liability Catastrophe Loss Fund.]
21 "Fund" means the Medical Professional Liability Catastrophe
22 Loss Fund [created in Article VII] established in section 702-A.
23 "Fund coverage limits" means the coverage provided by the
24 [Medical Professional Liability Catastrophe Loss Fund under
25 section 701(a)] fund under section 702-A.
26 "Government" means the Government of the United States, any
27 state, any political subdivision of a state, any instrumentality
28 of one or more states, or any agency, subdivision, or department
29 of any such government, including any corporation or other
30 association organized by a government for the execution of a
20010H1802B3320 - 6 -
1 government program and subject to control by a government, or
2 any corporation or agency established under an interstate
3 compact or international treaty.
4 "Guardian" means a fiduciary who has the care and management
5 of the estate or person of a minor or an incapacitated person.
6 "Health care business or practice" means the number of
7 patients to whom health care services are rendered by a health
8 care provider within an annual period.
9 "Health care provider" means a primary health center or a
10 person, including a corporation, university or other educational
11 institution, [facility, institution or other entity] licensed or
12 approved by the Commonwealth to provide health care or
13 professional medical services as a physician, a certified nurse
14 midwife, a podiatrist, hospital, nursing home, birth center, and
15 except as to section [701(a)] 701-A, an officer, employee or
16 agent of any of them acting in the course and scope of
17 employment.
18 "Hospital" means an entity licensed under the act of July 19,
19 1979 (P.L.130, No.48), known as the "Health Care Facilities
20 Act," as a hospital.
21 "Immediate family" means a parent, spouse or child or an
22 adult sibling residing in the same household.
23 "Informed consent" means for the purposes of this act and of
24 any proceedings arising under the provisions of this act, the
25 consent of a patient to the performance of a procedure in
26 accordance with section 811-A.
27 "Interest" means interest at the rate prescribed in section
28 806 of the act of April 9, 1929 (P.L.343, No.176), known as "The
29 Fiscal Code."
30 "Licensure Board" means the State Board of Medicine, the
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1 State Board of Osteopathic Medicine, the State Board of
2 Podiatry, the Department of Public Welfare and the Department of
3 Health.
4 "Medical professional liability insurance" means the same as
5 professional liability insurance.
6 "Nonresident health care provider" means a health care
7 provider that conducts 20% or less of its health care business
8 or practice within this Commonwealth.
9 "Nursing home" means an entity licensed under the act of July
10 19, 1979 (P.L.130, No.48), known as the "Health Care Facilities
11 Act," as a nursing home.
12 "Patient" means a natural person who receives or should have
13 received health care from a health care provider.
14 "Personal representative" means an executor or administrator
15 of a patient's estate.
16 "Prevailing primary premium" means the schedule of occurrence
17 rates approved by the [Insurance Commissioner] commissioner for
18 the Joint Underwriting Association.
19 "Primary health center" means a community-based nonprofit
20 corporation meeting standards prescribed by the Department of
21 Health, which provides preventive, diagnostic, therapeutic, and
22 basic emergency health care by licensed practitioners who are
23 employees of the corporation or under contract to the
24 corporation.
25 "Payable claims" means a claim which arises from an
26 occurrence which occurs on or before December 31, 2002, or a
27 claim reported to the Insurance Department on or before December
28 31, 2008.
29 "Professional liability insurance" means insurance against
30 liability on the part of a health care provider arising out of
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1 any tort or breach of contract causing injury or death resulting
2 from the furnishing of medical services which were or should
3 have been provided.
4 "Resident health care provider" means a health care provider
5 that conducts more than 20% of its health care business or
6 practice within this Commonwealth.
7 Section 605. Statute of Limitations.--(a) All claims for
8 recovery pursuant to this act must be commenced within the
9 existing applicable statutes of limitation. A filing pursuant to
10 section 401 shall toll the running of the limitations contained
11 in this section.
12 (b) If a [In the event that any] claim is made against a
13 health care provider [subject to the provisions of Article VII]
14 required to participate in the fund more than four years after
15 the breach of contract or tort occurred [which] and the claim is
16 filed within the applicable statute of limitations, [such] the
17 claim shall be defended [and paid by the fund if the fund has]
18 by the department if the department received a written request
19 for indemnity and defense within 180 days of the date on which
20 notice of the claim is given to the health care provider or his
21 insurer. Where multiple treatments or consultations took place
22 less than four years before the date on which the health care
23 provider or his insurer received notice of the claim, the claim
24 shall be deemed, for purposes of this section, to have occurred
25 less than four years prior to the date of notice and shall be
26 defended by the insurer [pursuant to section 702(d). If such
27 claim is made after four years because of the willful
28 concealment by the health care provider or his insurer, the fund
29 shall have the right of full indemnity including defense costs
30 from such health care provider or his insurer. A filing pursuant
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1 to section 401 shall toll the running of the limitations
2 contained herein.] in accordance with Article VII-A.
3 (c) If a health care provider is found liable for a claim
4 defended by the department in accordance with subsection (b),
5 the claim shall be paid by the fund up to the limit of liability
6 of the fund. The limit of liability of the fund for a claim
7 defended by the department under subsection (b) shall be
8 $1,000,000 for each occurrence.
9 (d) If a claim is defended by the department under
10 subsection (b) or paid under subsection (c), and the claim is
11 made after four years because of the willful concealment by the
12 health care provider or his insurer, the fund shall have the
13 right of full indemnity including the department's defense costs
14 from the health care provider or his insurer.
15 (e) Notwithstanding subsections (b), (c) and (d), all
16 professional liability insurance policies providing coverage in
17 accordance with Article VII-A which are issued on or after
18 January 1, 2003, shall provide a defense of and insurance
19 coverage for claims asserted against a health care provider
20 required to participate in the fund more than four years after a
21 breach of contract or tort occurs if the breach of contract or
22 tort occurs after December 31, 2002.
23 Section 3. Article VII of the act is repealed.
24 Section 4. The act is amended by adding an article to read:
25 ARTICLE VII-A
26 MEDICAL PROFESSIONAL LIABILITY INSURANCE
27 Section 701-A. Medical professional liability insurance.
28 (a) A health care provider providing health care services in
29 this Commonwealth shall:
30 (1) purchase medical professional liability insurance
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1 from an insurer which is licensed or approved by the
2 department; or
3 (2) provide self-insurance.
4 (b) A health care provider required by subsection (a) to
5 purchase medical professional liability insurance or provide
6 self-insurance shall submit proof of insurance or self-insurance
7 to the department within 60 days of the policy being issued.
8 (c) If a health care provider fails to submit the proof of
9 insurance or self-insurance required by subsection (b), the
10 department shall, after providing the health care provider with
11 notice, notify the health care provider's licensing authority. A
12 health care provider's license shall be suspended or revoked by
13 its licensure board or agency if the health care provider fails
14 to comply with any of the provisions of this act.
15 (d) A health care provider shall insure or self-insure
16 medical professional liability in accordance with the following:
17 (1) For policies issued or renewed in calendar year
18 2002, the basic insurance coverage shall be:
19 (i) $500,000 per occurrence or claim and $1,500,000
20 per annual aggregate for a health care provider that is
21 not a hospital, conducts more than 50% of its health care
22 business or practice within this Commonwealth and
23 participates in the fund.
24 (ii) $500,000 per occurrence or claim and $1,500,000
25 per annual aggregate for a health care provider that is
26 not a hospital and conducts 50% or less of its health
27 care business or practice within this Commonwealth.
28 (iii) $500,000 per occurrence or claim and
29 $2,500,000 per annual aggregate for a health care
30 provider which is a hospital located in this Commonwealth
20010H1802B3320 - 11 -
1 and participates in the fund.
2 (2) For policies issued or renewed in the calendar year
3 2003 and thereafter, the basic insurance coverage shall be:
4 (i) $500,000 per occurrence or claim and $1,500,000
5 per annual aggregate for a resident health care provider
6 that is not a hospital located in this Commonwealth.
7 (ii) $1,000,000 per occurrence or claim and
8 $3,000,000 per annual aggregate for a nonresident health
9 care provider.
10 (iii) $500,000 per occurrence or claim and
11 $2,500,000 per annual aggregate for a resident health
12 care provider which is a hospital located in this
13 Commonwealth.
14 (3) By July 1, 2005, the commissioner shall study the
15 availability of medical professional liability insurance in
16 this Commonwealth to determine if the basic insurance
17 coverage requirement should be increased. If the commissioner
18 determines that additional basic insurance coverage capacity
19 exists at an affordable cost, the commissioner shall place
20 notice thereof in the Pennsylvania Bulletin and require the
21 basic insurance coverage for policies issued or renewed in
22 calendar year 2006 and each year thereafter to be:
23 (i) $750,000 per occurrence or claim and $2,050,000
24 per annual aggregate for a resident health care provider
25 that is not a hospital located in this Commonwealth.
26 (ii) $1,000,000 per occurrence or claim and
27 $3,000,000 per annual aggregate for a nonresident health
28 care provider.
29 (iii) $750,000 per occurrence or claim and
30 $3,650,000 per annual aggregate for a resident health
20010H1802B3320 - 12 -
1 care provider which is a hospital located in this
2 Commonwealth.
3 If the commissioner determines that additional basic
4 insurance coverage may not be purchased at an affordable
5 cost, the commissioner shall conduct additional studies every
6 two years until the commissioner determines that additional
7 basic insurance coverage may be purchased at an affordable
8 cost, at which time the commissioner shall increase the
9 required basic insurance coverage in accordance with this
10 paragraph.
11 (4) Two years following the notice in the Pennsylvania
12 Bulletin required by paragraph (3), the commissioner shall
13 study the availability of medical professional liability
14 insurance in this Commonwealth to determine if the basic
15 insurance coverage requirement should be increased. If the
16 commissioner determines that additional basic insurance
17 coverage capacity exists at an affordable cost, the
18 commissioner shall place notice thereof in the Pennsylvania
19 Bulletin and require the basic insurance coverage for
20 policies issued or renewed in the next succeeding calendar
21 year to be:
22 (i) $1,000,000 per occurrence or claim and
23 $3,000,000 per annual aggregate for a resident health
24 care provider that is not a hospital located in this
25 Commonwealth.
26 (ii) $1,000,000 per occurrence or claim and
27 $3,000,000 per annual aggregate for a nonresident health
28 care provider.
29 (iii) $1,000,000 per occurrence or claim and
30 $4,500,000 per annual aggregate for a resident health
20010H1802B3320 - 13 -
1 care provider which is a hospital located in this
2 Commonwealth.
3 If the commissioner determines that additional basic
4 insurance coverage may not be purchased at an affordable
5 cost, the commissioner shall conduct additional studies every
6 two years until the commissioner determines that additional
7 basic insurance coverage may be purchased at an affordable
8 cost, at which time the commissioner shall increase the
9 required basic insurance coverage in accordance with this
10 paragraph.
11 (e) A resident health care provider shall participate in the
12 fund.
13 (f) (1) If a health care provider self-insures its medical
14 professional liability, the health care provider shall submit
15 its self-insurance plan, such additional information as the
16 department may require and the examination fee to the
17 department for approval.
18 (2) The department shall approve the plan if it
19 determines that the plan constitutes protection equivalent to
20 the insurance required of a health care provider under
21 subsection (d).
22 (g) (1) An insurer providing medical professional liability
23 insurance shall not be liable for payment of a claim against
24 a health care provider for any loss or damages awarded in a
25 medical professional liability action in excess of the basic
26 insurance coverage required by subsection (d) unless the
27 health care provider's medical professional liability policy
28 or self-insurance plan provides for a higher annual aggregate
29 limit.
30 (2) If a claim exceeds the limits of a basic coverage
20010H1802B3320 - 14 -
1 insurer or a self-insurance plan, the fund shall be
2 responsible for payment of the claim up to the fund liability
3 limits.
4 (h) (1) No insurer providing excess medical professional
5 liability insurance to a health care provider required to
6 participate in the fund shall be liable for payment of a
7 claim against a health care provider for a loss or damages in
8 a medical professional liability action, except the losses
9 and damages in excess of the fund coverage limits.
10 (2) No carrier providing excess medical professional
11 liability insurance for a health care provider required to
12 participate in the fund shall be liable for any loss
13 resulting from the insolvency or dissolution of the fund.
14 (i) A governmental entity may satisfy its obligations under
15 this act, as well as the obligations of its employees to the
16 extent of their employment, by either purchasing insurance or
17 assuming an obligation as a self-insurer and including the
18 payment of all assessments under this act.
19 (j) The following health care providers shall be exempt from
20 this act:
21 (1) A physician who exclusively practices the specialty
22 of forensic pathology.
23 (2) A health care provider who is a member of the
24 Pennsylvania military forces while in the performance of that
25 member's assigned duty in the Pennsylvania military forces
26 under orders.
27 (3) A retired licensed health care provider who provides
28 care only to that provider or to that provider's immediate
29 family members.
30 Section 702-A. Medical Professional Liability Catastrophe Loss
20010H1802B3320 - 15 -
1 Fund.
2 (a) There is hereby established within the State Treasury a
3 special fund to be known as the Medical Professional Liability
4 Catastrophe Loss Fund. The fund shall be a continuation of the
5 fund established under former Article VII. Moneys in the fund
6 shall be used to pay claims against health care providers
7 required to participate in the fund for losses or damages
8 awarded in medical professional liability actions in excess of
9 the basic insurance coverage required by section 701-A(d) and
10 for the administration of the fund.
11 (b) The limit of liability of the fund for each health care
12 provider required to participate under section 701-A(e) shall be
13 as follows:
14 (1) For calendar year 2002, the limit of liability of
15 the fund shall be $700,000 for each occurrence and $2,100,000
16 per annual aggregate.
17 (2) For calendar years 2003 and each year thereafter,
18 the limit of liability of the fund shall be $500,000 for each
19 claim and $1,500,000 per annual aggregate.
20 (3) If the basic insurance coverage requirement is
21 increased in accordance with section 701-A(d)(3) and,
22 notwithstanding paragraph (2), for each calendar year
23 following the increase in the basic insurance coverage
24 requirement, the limit of liability of the fund shall be
25 $250,000 for each claim and $950,000 per annual aggregate.
26 (4) If the basic insurance coverage requirement is
27 increased in accordance with section 701-A(d)(4) and,
28 notwithstanding paragraphs (2) and (3), for each calendar
29 year following the increase in the basic insurance coverage
30 requirement, the fund shall not be liable for each claim.
20010H1802B3320 - 16 -
1 (c) (1) For calendar years 1997 through 2002, the fund
2 shall be funded by a surcharge on the basic insurance
3 coverage of each health care provider required to participate
4 in the fund. Surcharges shall be levied on or after January 1
5 of each year.
6 (2) The surcharge shall be based on the prevailing
7 primary premium for each health care provider for maintenance
8 of medical professional liability insurance and shall be the
9 appropriate percentage thereof, necessary to:
10 (i) produce an amount sufficient to reimburse the
11 fund for the payment of final claims and expenses
12 incurred during the preceding claims period; and
13 (ii) provide an amount necessary to maintain an
14 additional 15% of the final claims and expenses incurred
15 during the preceding claims period.
16 (3) The surcharge shall be determined by the fund and
17 filed with the department. The department shall review the
18 surcharge within 30 days of the filing.
19 (4) After review, the commissioner shall approve the
20 surcharge unless it is inadequate or excessive. If the
21 surcharge is disapproved, the fund shall make an adjustment
22 to the next surcharge calculation to reflect the appropriate
23 increase or decrease.
24 (5) Upon receipt of the commissioner's approval of the
25 surcharge, the fund shall communicate the surcharge to all
26 basic insurance coverage carriers and self-insured providers
27 to be levied.
28 (6) Any appeal of the surcharge must be filed with the
29 commissioner.
30 (d) (1) For calendar year 2003 and each year thereafter,
20010H1802B3320 - 17 -
1 the fund shall be funded by an assessment on each health care
2 provider required to participate in the fund. Assessments
3 shall be levied by the department on or after January 1 of
4 each year. The assessment shall be based on the prevailing
5 primary premium for each health care provider for maintenance
6 of medical professional liability insurance and shall be the
7 appropriate percentage thereof, necessary to produce an
8 amount sufficient to do all of the following:
9 (i) Reimburse the fund for the payment of payable
10 claims which became final.
11 (ii) Pay expenses of the fund incurred during the
12 preceding claims period.
13 (iii) Pay principal and interest on obligations, if
14 any, issued by the authority.
15 (iv) Provide a reserve that shall be 10% of the
16 payable claims that became final, expenses and principal
17 and interest payment on authority obligations incurred
18 during the preceding claims period.
19 (2) The department shall notify all basic insurance
20 coverage carriers and self-insured providers of the
21 assessment by November 1 for the succeeding calendar year.
22 (3) Any appeal of the assessment shall be filed with the
23 department.
24 (e) In calendar years 2002 through 2004, the aggregate
25 annual assessment shall not exceed 70% of the surcharge imposed
26 for calendar year 2001. The discount in the annual surcharge
27 under this subsection may be funded pursuant to section 703-A(b)
28 or (c).
29 (f) The Joint Underwriting Association shall file updated
30 rates for all health care providers with the commissioner by May
20010H1802B3320 - 18 -
1 1 of each year. The department shall review and may adjust the
2 prevailing primary premium in line with any applicable changes
3 which have been approved by the commissioner.
4 (g) The department may adjust the applicable prevailing
5 primary premium in accordance with the following:
6 (1) The applicable prevailing primary premium of a
7 health care provider which is not a hospital may be adjusted
8 through an increase in the individual health care provider's
9 prevailing primary premium not to exceed 20%. Any adjustment
10 shall be based upon the frequency of claims paid by the fund
11 on behalf of the individual health care provider during the
12 past five most recent claims periods and shall be in
13 accordance with the following:
14 (i) If a single claim has been paid during the past
15 five most recent claims periods by the fund, a 10%
16 increase shall be charged.
17 (ii) If two or more claims have been paid during the
18 past five most recent claims periods by the fund, a 20%
19 increase shall be charged.
20 (2) The applicable prevailing primary premium of a
21 health care provider not engaged in direct clinical practice
22 on a full-time basis may be adjusted through a decrease in
23 the individual health care provider's prevailing primary
24 premium not to exceed 10%. Any adjustment shall be based upon
25 the lower risk associated with the less-than-full-time direct
26 clinical practice.
27 (3) The applicable prevailing primary premium of a
28 hospital may be adjusted through an increase or decrease in
29 the individual hospital's prevailing primary premium not to
30 exceed 20%. Any adjustment shall be based upon the frequency
20010H1802B3320 - 19 -
1 and severity of claims paid by the fund on behalf of other
2 hospitals of similar class, size, risk and kind within the
3 same defined region during the past five most recent claims
4 periods.
5 (h) A health care provider that has an approved self-
6 insurance plan shall be surcharged or assessed an amount equal
7 to the surcharge or assessment imposed on a health care provider
8 of like class, size, risk and kind as determined by the
9 department.
10 (i) If a health care provider changes the term of its
11 medical professional liability coverage, the surcharge or
12 assessment shall be calculated on an annual base and shall
13 reflect the surcharge or assessment percentages in effect for
14 the period over which the policies are in effect.
15 (j) Payable claims shall be computed on August 31 for claims
16 which became final between that date and September 1 of the
17 preceding year. Payable claims shall be paid on or before
18 December 31 following the August 31 by which they became final.
19 (k) Upon satisfaction of all payable claims against and all
20 liabilities of the fund, the fund shall terminate. Any balance
21 remaining in the fund upon such termination shall be returned by
22 the department to the health care providers who participated in
23 the fund in proportion to their assessments in the preceding
24 calendar year.
25 (l) The surcharges and assessments on health care providers
26 and any income realized by investment or reinvestment shall
27 constitute the sole and exclusive sources of funding for the
28 fund. A claim against or a liability of the fund shall not be
29 deemed to constitute a debt or liability of the Commonwealth or
30 a charge against the General Fund.
20010H1802B3320 - 20 -
1 (m) (1) A primary carrier as defined in the act of May 17,
2 1921 (P.L.682, No.284), known as The Insurance Company Law of
3 1921, which fails to settle a claim by acting in bad faith
4 may be held liable for the consequences of its actions by its
5 insured, by the fund, or a party who lawfully succeeds to the
6 rights of its insured.
7 (2) The fund may be held liable for the consequences of
8 its actions if it fails to settle a claim by acting in bad
9 faith, by its insured, or a party who lawfully succeeds to
10 the rights of its insured, but only if the following
11 conditions are met:
12 (i) The primary carrier has tendered its limits of
13 coverage for the insured to the fund.
14 (ii) A judge presiding over trial or pretrial
15 proceedings has certified to the fund the court's
16 recommendation that the case be settled for a specific
17 sum within or equal to the applicable limits of coverage.
18 (iii) The fund refuses to accept the presiding
19 judge's recommendation and subsequently there is a
20 verdict in excess of the limits of coverage provided by
21 the fund.
22 (iv) It is subsequently determined by a finder of
23 fact that the fund's refusal to accept the court's
24 recommendation constituted a breach of its obligation to
25 act reasonably in protecting the interest of the insured
26 health care provider.
27 (n) A health care provider who waives the right to consent
28 to a settlement in a policy for medical professional liability
29 insurance shall be entitled to a 5% reduction in premium for the
30 policy and a corresponding 5% reduction in the fund surcharge.
20010H1802B3320 - 21 -
1 (o) A medical professional liability insurer shall not
2 assess any premium increase to a health care provider, other
3 than any base rate modifications:
4 (1) for any claim successfully defended by the insurer
5 or the health care provider;
6 (2) for any claim against the provider that is dismissed
7 or abandoned prior to final adjudication; or
8 (3) for any potential claim of which the insurer is put
9 on notice but which is not asserted against the health care
10 provider.
11 Section 703-A. Administration of fund.
12 (a) The fund shall be administered by the department. The
13 assets of the fund are transferred to the department. The
14 department shall contract with an entity or entities for the
15 administration of claims against the fund in accordance with 62
16 Pa.C.S. (relating to procurement) and, to the fullest extent
17 practicable, the department shall contract with entities that:
18 (1) Are not writing or underwriting medical professional
19 liability insurance for health care providers performing
20 medical services in this Commonwealth.
21 (2) Have demonstrable knowledge of and experience in the
22 handling and adjusting of medical professional liability or
23 other catastrophic claims in this Commonwealth or other
24 jurisdictions.
25 (3) Have developed, instituted and utilized best
26 practice standards for the handling and adjusting of medical
27 professional liability or other catastrophic claims.
28 (4) Have demonstrable knowledge of and experience with
29 the health care providers of this Commonwealth, the medical
30 professional liability marketplace and the judicial systems
20010H1802B3320 - 22 -
1 of this Commonwealth.
2 (5) Have demonstrable knowledge and experience with the
3 compensation needs of persons harmed by the medical
4 professional liability of health care providers, as well as
5 the need to ensure affordable and available medical
6 professional liability insurance for the health care
7 providers of this Commonwealth.
8 (b) The department may purchase, on behalf of and in the
9 name of the fund, as much insurance or reinsurance as is
10 necessary to preserve the fund or retire the liabilities of the
11 fund.
12 (c) The department may request the authority to borrow such
13 money as is necessary in order to pay the liabilities of the
14 fund until sufficient revenues are realized by the fund. If the
15 department requests the authority to borrow money, the
16 department shall annually assess health care providers and pay
17 to the authority an amount sufficient to pay principal and
18 interest on the obligations issued by the authority.
19 (d) An obligation or debt issued under this act shall not be
20 deemed an obligation or debt of the Commonwealth, nor shall the
21 Commonwealth be liable to pay principal and interest on the
22 obligation or to offset any loss of principal and interest
23 earnings on investments made by the department or recommended by
24 the department pursuant to this act.
25 Section 704-A. Medical Professional Liability Catastrophe Loss
26 Fund Authority.
27 (a) There is hereby established a body corporate and politic
28 to be known as the Medical Professional Liability Catastrophe
29 Loss Fund Authority. The powers and duties of the authority
30 shall be vested in and exercised by a board of directors. The
20010H1802B3320 - 23 -
1 board of the authority shall consist of three members to be
2 appointed by the Governor. The Governor shall additionally
3 appoint one member as chairperson. Members of the board shall
4 serve for terms of four years. No appointed member shall be
5 eligible to serve more than two full consecutive terms. A
6 majority of the members of the board shall constitute a quorum.
7 Notwithstanding any other provision of law, action may be taken
8 by the board at a meeting upon a vote of the majority of its
9 members present in person or through the use of amplified
10 telephonic equipment if authorized by the bylaws of the board.
11 The board shall meet at the call of the chairperson or as may be
12 provided in the bylaws of the board. Meetings of the board may
13 be held anywhere within this Commonwealth.
14 (b) The authority shall have the following powers and
15 duties:
16 (1) Adopt bylaws necessary to carry out the provisions
17 of this act.
18 (2) Employ staff as necessary to implement this act.
19 (3) Make, execute and deliver contracts and other
20 instruments.
21 (4) Borrow, at the request of the department, moneys in
22 the name of the fund, to be deposited in the fund.
23 (5) Make payments on obligations of the authority from
24 assessments levied and collected by the department.
25 (6) Within two years of the effective date of this
26 article, arrange for the separate retirement of the
27 liabilities associated with the podiatrists.
28 Such arrangements shall be on terms and conditions proportionate
29 to the individual liability of such class of health care
30 provider. Such arrangements may result in assessments for
20010H1802B3320 - 24 -
1 podiatrists different than provided for under section 702-
2 A(d)(1). Upon satisfaction of the arrangements, podiatrists
3 shall not be required to contribute to or be entitled to
4 participate in the authority set forth in this article. In cases
5 where the class rejects such an arrangement, the authority shall
6 present to the provider class new term arrangements at least
7 once in every two-year period.
8 (c) Notwithstanding any other provision of law, the
9 authority shall not pledge the credit or taxing powers of the
10 Commonwealth. An obligation or debt issued under this act shall
11 not be deemed an obligation or debt of the Commonwealth, nor
12 shall the Commonwealth be liable to pay principal and interest
13 on the obligation or to offset any loss of principal and
14 interest earnings on investments made by the authority or
15 recommended by the authority pursuant to this act.
16 Section 705-A. Medical professional liability claims.
17 (a) A basic coverage insurer or self-insured health care
18 provider shall promptly notify the department in writing of any
19 medical professional liability claim.
20 (b) If a basic coverage insurer or self-insured health care
21 provider fails to notify the department as required under
22 subsection (a) and the department has been prejudiced by the
23 failure of notice, the insurer or provider shall be solely
24 responsible for the payment of the entire award or verdict that
25 results from the medical professional liability claim.
26 (c) A basic coverage insurer or self-insured health care
27 provider shall provide a defense to a medical professional
28 liability claim, including a defense of any potential liability
29 of the fund, except as provided for in section 605. The
30 department may join in the defense and be represented by
20010H1802B3320 - 25 -
1 counsel.
2 (d) (1) The department may defend, litigate, settle or
3 compromise any medical professional liability claim payable
4 by the fund. A health care provider's basic coverage insurer
5 shall have the right to approve any settlement entered into
6 by the department on behalf of its insured health care
7 provider. If the basic coverage insurer does not disapprove a
8 settlement prior to execution by the department, it shall be
9 deemed approved by the basic coverage insurer.
10 (2) In the event that more than one health care provider
11 is party to a settlement, the health care provider's basic
12 coverage insurer shall have the right to approve only the
13 portion of the settlement which is contributed on behalf of
14 its insured health care provider.
15 (e) In the event that a basic coverage insurer or self-
16 insured health care provider enters into a settlement with a
17 claimant to the full extent of its liability as provided in this
18 article, it may obtain a release from the claimant to the extent
19 of its payment, which payment shall have no effect upon any
20 excess claim against the fund or its duty to continue the
21 defense of the claim.
22 (f) The department may adjust claims.
23 (g) Upon the request of a party to a medical professional
24 liability claim within the fund coverage limits, the department
25 may provide for a mediator in instances where multiple carriers
26 disagree on the disposition or settlement of a case. Upon the
27 consent of all parties, the mediation shall be binding.
28 Proceedings conducted and information provided in accordance
29 with this section shall be confidential and shall not be
30 considered public information subject to disclosure under the
20010H1802B3320 - 26 -
1 act of June 21, 1957 (P.L.390, No.212), referred to as the
2 Right-to-Know Law and 65 Pa.C.S. Ch. 7 (relating to open
3 meetings).
4 (h) Delay damages and postjudgment interest applicable to
5 the fund's liability on a medical professional liability claim
6 shall be paid by the fund and shall not be charged against the
7 insured's annual aggregate limits. The basic coverage insurer or
8 self-insurer health care provider shall be responsible for its
9 proportionate share of delay damages and postjudgment interest
10 applicable to the fund's liability on a medical professional
11 liability shall be paid by the fund and shall not be charged
12 against the insured's annual aggregate limits. The basic
13 coverage insurer or self-insurer health care provider shall be
14 responsible for its proportionate share of delay damages and
15 postjudgment interest.
16 (i) Information provided to the department or maintained by
17 the department regarding a claim shall be confidential,
18 notwithstanding the Right-to-Know Law and 65 Pa.C.S. Ch. 7.
19 Section 5. The act is amended by adding sections to read:
20 Section 802-A. Definitions.--As used in this act:
21 "Medical professional liability action" means any proceeding
22 in which a medical professional liability claim is asserted,
23 including, but not limited to, an action in a court of law or an
24 arbitration proceeding.
25 "Medical professional liability claim" means any claim
26 brought by or on behalf of an individual seeking damages for
27 loss sustained by the individual as a result of an injury or
28 wrong to the individual or another individual arising from a
29 health care provider's provision of or failure to provide health
30 care, including, but not limited to, medical treatment,
20010H1802B3320 - 27 -
1 diagnosis, or consultation, regardless of the theory of
2 liability. The potential theories of liability include, but are
3 not limited to, negligence, lack of informed consent, breach of
4 contract, misrepresentation or fraud. The term also includes a
5 claim seeking to hold a third party liable for the conduct of a
6 health care provider, including, but not limited to, a claim
7 asserting vicarious liability or corporate negligence.
8 Section 803-A. Jurisdiction.--(a) Except as provided in
9 subsection (b), a medical professional liability claim shall be
10 brought only in a county in which the alleged acts or omissions
11 giving rise to the claim predominately occurred and may be
12 subject to reassignment under section 804-A(c).
13 (b) Except as provided in subsection (c), in an action in
14 which the plaintiff has established proper jurisdiction in a
15 court for a medical professional liability claim against a
16 defendant under subsection (a), the court also has jurisdiction
17 for all claims against defendants who are alleged to be jointly
18 liable with the defendant for whom jurisdiction has been
19 established.
20 (c) If all of the professional liability claims for which a
21 court has jurisdiction under subsection (a) are dismissed or
22 withdrawn prior to the commencement of the trial, the court
23 shall transfer the action to a court that has jurisdiction
24 against the remaining defendants under subsection (a) or (b).
25 (d) In the case of a claim asserting vicarious liability,
26 only the acts and omissions supporting the underlying claim
27 shall be considered for purposes of establishing jurisdiction
28 under subsection (a). In the case of a claim asserting corporate
29 liability or a similar theory of liability in which the
30 defendant is allegedly liable for failure to exercise reasonable
20010H1802B3320 - 28 -
1 care in the selection or supervision of a health care provider
2 who allegedly provided deficient health care, only the allegedly
3 deficient health care of the health care provider shall be
4 considered for purposes of establishing jurisdiction under
5 subsection (a).
6 Section 804-A. Change of Venue.--(a) Upon the petition of a
7 party defendant, a court that has jurisdiction for an action
8 asserting a medical professional liability claim against any
9 defendant under section 803-A shall transfer the action to the
10 court of any other county where the claim could originally have
11 been brought under section 803-A if the standards in subsection
12 (b) are satisfied.
13 (b) The court shall grant a request for a change in venue
14 under subsection (a) if the allegedly deficient medical care of
15 all the defendants considered together predominately occurred in
16 the new county or the court otherwise determines that a change
17 in venue is appropriate. A defendant shall not be required to
18 establish that the plaintiff's choice of forum is oppressive or
19 vexatious to obtain a change in venue.
20 (c) (1) In any county where the jury venire pool exceeds 20%
21 of individuals employed by the health care industry, such case
22 at the request of any party shall be transferred to another
23 county in accordance with a rotation system developed in
24 accordance with paragraph (2).
25 (2) The Administrative Office of the Pennsylvania Courts
26 shall develop a list of counties with jury venire pools which
27 exceed the percentages set forth in paragraph (1) every five
28 years or in such other frequency less than said period as may be
29 decided at the discretion of the Administrative Office of the
30 Pennsylvania Courts. A random selection system shall be
20010H1802B3320 - 29 -
1 developed by the courts for transferring cases to a county whose
2 court of common pleas is ordinarily no more than 50 miles from
3 the court of common pleas of the transferring county unless
4 unusual circumstances exist.
5 (3) As used in this subsection, "health care industry" means
6 hospitals, physicians, health care insurance providers and
7 pharmaceutical companies.
8 Section 805-A. Statute of Limitations.--(a) Except as
9 provided in subsection (b) or (c), an action asserting a medical
10 professional liability claim must be commenced within two years
11 of the date the injured individual knew, or should have known by
12 using reasonable diligence, of the injury and its cause or
13 within four years from the date of the breach of duty or other
14 event causing the injury, whichever is earlier.
15 (b) If the injury is, or was, caused by a foreign object
16 left in the individual's body, the four-year limitation in
17 subsection (a) shall not apply.
18 (c) If the injured individual is a minor under 14 years of
19 age, the action must be commenced within four years after the
20 minor's parent or guardian knew, or should have known by using
21 reasonable diligence, of the injury and its cause or within four
22 years from the minor's 14th birthday, whichever is earlier.
23 (d) If the claim is brought under 42 Pa.C.S. § 8301
24 (relating to death action) or 8302 (relating to survival
25 action), the action must be commenced within the time period set
26 forth in subsections (a), (b) and (c) or within two years after
27 the death, whichever is earlier.
28 (e) No cause of action barred prior to the effective date of
29 this section shall be revived by reason of the enactment of this
30 section.
20010H1802B3320 - 30 -
1 Section 814-A. Contracts for Limitation of Noneconomic
2 Damages.--(a) An agreement limiting noneconomic damages that
3 may be awarded in a medical professional liability action is
4 consistent with the public policy of this Commonwealth, shall be
5 valid and legally enforceable, and shall not be deemed to be
6 unconscionable or otherwise improper.
7 (b) A health care provider shall be permitted to condition
8 initial or continued acceptance of an individual as a patient on
9 the individual, or an authorized legal representative of the
10 individual, consenting to a limitation on noneconomic damages of
11 not less than $250,000 that may be awarded in a medical
12 professional liability action, and no health care insurer or
13 other person that contracts or arranges for the provision of
14 medical services shall prohibit a health care provider from
15 imposing such a condition.
16 (c) An agreement that limits noneconomic damages in a
17 medical professional liability action involving medical services
18 rendered to a minor shall not be subject to disaffirmance if the
19 agreement is signed by the minor's parent, legal guardian or
20 other legal representative. An agreement that limits noneconomic
21 damages in a medical professional liability action involving
22 medical services rendered to an individual who is incompetent
23 shall not be subject to disaffirmance provided that the
24 agreement is signed by the individual while competent or a legal
25 representative for the individual.
26 (d) An agreement that limits noneconomic damages in a
27 medical professional liability action shall be binding on the
28 estate of the individual who signed the agreement, or on whose
29 behalf a legal representative signed the agreement, and on any
30 other individual whose claim is derivative of the signer
20010H1802B3320 - 31 -
1 individual's claim.
2 (e) A limitation on noneconomic damages in an agreement
3 permitted by subsection (a) shall be deemed to apply to the
4 total noneconomic damages awarded in the action, regardless of
5 whether all of the defendants are parties to such an agreement,
6 unless the agreement provides otherwise.
7 (f) An agreement permitted by subsection (a) may extend the
8 benefit of the limitation on noneconomic damages to any health
9 care provider or other person reasonably identified by name or
10 category, including, but not limited to, employees and agents of
11 a health care provider, a person held vicariously liable for the
12 conduct of a health care provider and the medical staff of a
13 health care provider.
14 (g) In the event that a health care provider is required by
15 law to provide medical care to an individual or provides
16 emergency medical care to an individual, noneconomic damages in
17 a medical professional liability action arising out of that care
18 shall be limited to $250,000. For the purposes of the statutory
19 limitation on noneconomic damages imposed in this subsection,
20 the limitation also shall apply to care provided after the legal
21 obligation or emergency ceases, provided that the individual, or
22 a known legal representative for the individual, is advised in
23 writing of the limitation on noneconomic damages within a
24 reasonable time.
25 (h) Consideration shall not be required for an agreement
26 permitted by subsection (a), provided that the agreement
27 provides that the signer agrees to be legally bound.
28 Section 815-A. Nonbinding Mediation.--(a) An agreement
29 providing for nonbinding mediation of a medical professional
30 liability claim is consistent with the public policy of the
20010H1802B3320 - 32 -
1 Commonwealth and is valid and enforceable. An agreement which
2 mandates nonbinding mediation of a medical professional
3 liability claim shall not be deemed to be unconscionable or
4 otherwise improper.
5 (b) A health care provider may condition initial or
6 continued acceptance of an individual as a patient on the
7 patient or an authorized legal representative of the patient
8 consenting to nonbinding mediation of a medical professional
9 liability claim; and no health care insurer shall prohibit a
10 health care provider from imposing such a condition.
11 (c) An agreement that provides for nonbinding mediation of a
12 medical professional liability claim may include terms defining
13 the conduct of the proceedings.
14 (d) An agreement which mandates nonbinding mediation of a
15 medical professional liability claim involving medical services
16 rendered to a minor shall not be subject to disaffirmance if the
17 agreement is signed by the minor's parent, legal guardian or
18 legal representative. An agreement which mandates nonbinding
19 mediation of a medical professional liability claim involving
20 medical services rendered to a patient who is incompetent shall
21 not be subject to disaffirmance if the agreement is signed by a
22 legal representative for the patient.
23 (e) An agreement which mandates nonbinding mediation of a
24 medical professional liability claim shall be binding on the
25 estate of the patient and on any other individual whose claim is
26 derivative of the patient's claim.
27 (f) A person, corporation or entity not a signatory to an
28 agreement to participate in nonbinding mediation of a medical
29 professional liability claim may join in the mediation at the
30 request of any party with all the rights and obligations of the
20010H1802B3320 - 33 -
1 original party. No signatory may refuse to mediate because of
2 the participation of an additional party. In order to be treated
3 as a party, an additional participant must sign a written
4 statement to participate in the mediation proceedings and the
5 agreement or must sign the agreement.
6 (g) The employees of a health care provider shall be deemed
7 to be parties to every agreement providing for nonbinding
8 mediation of a medical professional liability claim which is
9 signed by their employer.
10 Section 816-A. Joint and Several Liability.--(a) Where
11 recovery is allowed in a medical professional liability action
12 against more than one defendant, each defendant shall be liable
13 for that proportion of the total dollar amount awarded as
14 damages in the ratio of the amount of his causal negligence to
15 the amount of causal negligence attributed to all defendants
16 against whom recovery is allowed.
17 (b) The liability of each defendant for damages shall be
18 several only and shall not be joint. Each defendant shall be
19 liable only for the amount of damages allocated to that
20 defendant in direct proportion to that defendant's percentage of
21 fault, and a separate judgment shall be rendered against the
22 defendant for that amount. To determine the amount of judgment
23 to be entered against each defendant, the court, with regard to
24 each defendant, shall multiply the total amount of damages
25 recoverable by the plaintiff by the percentage of each
26 defendant's fault, and that amount shall be the maximum
27 recoverable against that defendant.
28 (c) In assessing percentages of fault, the trier of fact
29 shall consider the fault of all persons who contributed to the
30 death or injury to person or property, regardless of whether the
20010H1802B3320 - 34 -
1 person was or could have been named as a party to the action,
2 except that negligence or fault of a nonparty may be considered
3 only if the plaintiff entered into a settlement agreement with
4 the nonparty or if the defending party gives notice as
5 prescribed by general rule that a nonparty was wholly or
6 partially at fault. The notice shall include the nonparty's name
7 and last known address or the best identification of the
8 nonparty which is possible under the circumstances, together
9 with a brief statement of the basis for believing the nonparty
10 to be at fault.
11 (d) Nothing in this section shall be construed to eliminate
12 or diminish any defenses or immunities under existing law,
13 except as expressly noted in this section. Assessments of
14 percentages of fault for nonparties are used only as a vehicle
15 for accurately determining the fault of named parties. Where
16 fault is assessed against nonparties, the findings of fault
17 shall not subject any nonparty to liability in the action or any
18 other action or be introduced as evidence of liability in any
19 action.
20 (e) Joint liability shall be imposed on all who consciously
21 and deliberately pursue a common plan or design to commit a
22 tortious act or actively take part in it. Any person held
23 jointly liable under this section shall have a right of
24 contribution from that person's fellow defendants acting in
25 concert. A defendant shall be held responsible only for the
26 portion of fault assessed to those with whom the defendant acted
27 in concert under this section.
28 (f) The burden of alleging and proving fault shall be upon
29 the person who seeks to establish the fault.
30 (g) Nothing in this section shall be construed to create a
20010H1802B3320 - 35 -
1 cause of action. Nothing in this section shall be construed, in
2 any way, to alter the immunity of any person.
3 Section 817-A. Liability for Misrepresentation to Seek
4 Informed Consent.--A health care provider may be held liable for
5 failure to seek a patient's informed consent if the provider
6 makes a knowing, willful and affirmative misrepresentation to
7 the patient as to the physician's professional credentials,
8 training, or experience with the procedure at issue.
9 Section 818-A. Loss of Pleasures of Life.--In any survival
10 action based upon a medical professional liability action in
11 which the claimant's estate cannot or elects not to claim
12 special damages and the defendant health care provider is found
13 liable for causing the death of the claimant, the estate may
14 recover damages for the decedent's loss of the pleasures of
15 life.
16 Section 828-A. Expert Witness Qualifications.--(a) An
17 expert witness in a medical professional liability action
18 against a physician must possess sufficient education, training,
19 knowledge, and experience to provide credible, competent
20 testimony, and meet the qualifications set forth in subsection
21 (b), (c), (d), (e) or (f), as applicable.
22 (b) An expert witness testifying on a medical matter,
23 including the standard of care, risks and alternatives,
24 causation and nature and extent of injury, must be:
25 (1) a physician with an unrestricted license to practice in
26 any state or the District of Columbia; and
27 (2) engaged in active clinical practice or teaching and
28 experienced in the medical care at issue.
29 (c) An expert witness testifying as to a physician's
30 standard of care must be:
20010H1802B3320 - 36 -
1 (1) substantially familiar with the applicable standard of
2 care for the specific care at issue as of the time of the
3 alleged malpractice;
4 (2) in the same specialty as the defendant physician or a
5 specialty which has a substantially similar standard of care for
6 the specific care at issue; and
7 (3) if the defendant physician is certified by an approved
8 board, certified by the same or a similar approved board.
9 (d) In a case in which it is alleged that a health care
10 provider engaged in the process of diagnosis or treatment for a
11 condition which was not within the health care provider's
12 specialty or competence, a specialist found by the court to be
13 trained in treatment or diagnosis for such condition shall be
14 considered competent to render an expert opinion.
15 (e) An expert witness shall not be precluded from offering
16 testimony as to the standard of care under subsection (c) if the
17 court makes a specific finding that the proposed expert
18 possesses sufficient training, experience and knowledge as a
19 result of practice or teaching in the specialty of the defendant
20 or practice or teaching in a related field of medicine so as to
21 equip the witness to provide expert testimony as to the
22 prevailing professional standard of care in a given field of
23 medicine. Such training, experience or knowledge must be as a
24 result of active involvement in the practice or full-time
25 teaching of medicine within the five-year period before the
26 incident giving rise to the claim.
27 (f) An expert witness not offering an opinion as to the
28 standard of care who otherwise is competent to testify about
29 medical or scientific issues by virtue of education, training or
30 experience, is not precluded from testifying because of an
20010H1802B3320 - 37 -
1 absence of board certification or the lack of a medical license
2 within the United States.
3 Section 829-A. Pretrial Disposition of Frivolous Medical
4 Professional Liability Claims.--(a) (1) Except as set forth in
5 paragraph (2), if a medical professional liability claim is
6 subject to pretrial disposition, the prevailing party shall have
7 a cause of action against the adverse party.
8 (2) If the prevailing party is awarded, in the underlying
9 action, damages substantially similar to the damages under
10 subsection (b), the cause of action under this section is
11 extinguished. A copy of the damage order in the underlying
12 action is required to apply this paragraph.
13 (b) (1) The damages for a cause of action under subsection
14 (a) consist of reasonable attorney fees and costs of pretrial
15 disposition.
16 (2) If the trier of fact determines that the adverse party
17 acted with the intent to harass the prevailing party or to delay
18 adjudication of the case, damages under paragraph (1) shall be
19 tripled.
20 (c) Discovery in an action under this section shall be
21 limited to a determination of damages under subsection (b).
22 (d) An action under this section must be filed within one
23 year of the final determination of the pretrial disposition.
24 (e) As used in this act:
25 "Adverse party" means any of the following:
26 (1) A plaintiff whose complaint is dismissed because of
27 preliminary objections.
28 (2) A defendant whose preliminary objections are overruled.
29 (3) A plaintiff against whom summary judgment is entered.
30 (4) A defendant whose motion for summary judgment is denied.
20010H1802B3320 - 38 -
1 The term includes an attorney who acts without knowledge or
2 consent of the attorney's client.
3 "Pretrial disposition" means any of the following:
4 (1) Dismissal of complaint because of preliminary
5 objections.
6 (2) Overruling of preliminary objections.
7 (3) Entry of summary judgment.
8 (4) Denial of summary judgment.
9 "Prevailing party" means any of the following:
10 (1) A defendant whose preliminary objections are sustained.
11 (2) A plaintiff who withstands preliminary objections.
12 (3) A defendant whose motion for summary judgment is
13 granted.
14 (4) A plaintiff who withstands a motion for summary
15 judgment.
16 "Reasonable attorney fees" means attorney fees at a
17 reasonable hourly rate for hours actually and reasonably spent
18 which are:
19 (1) actually paid; or
20 (2) billed for based upon time sheets submitted to the
21 court.
22 "Underlying action" means an action for medical malpractice
23 which is subject to preliminary disposition.
24 Section 833-A. Collateral Sources.--(a) Except as set forth
25 in subsection (d), a claimant in a medical professional
26 liability action is precluded from recovering damages for past
27 medical expenses or past lost earnings to the extent that the
28 loss is covered by a private or public benefit or gratuity that
29 claimant has received prior to trial.
30 (b) The claimant has the option to introduce into evidence
20010H1802B3320 - 39 -
1 the amount of medical expenses incurred, but the jury shall be
2 instructed not to award damages for such expenses except to the
3 extent that the claimant remains legally responsible for such
4 payment.
5 (c) Except as set forth in subsection (d), there shall be no
6 right of subrogation or reimbursement from a claimant's tort
7 recovery with respect to a public or private benefit covered in
8 subsection (a).
9 (d) The collateral source reduction set forth in subsection
10 (a) shall not apply to the following:
11 (1) Life insurance, pension or profit-sharing plans or other
12 deferred compensation plans, including agreements pertaining to
13 the purchase of a business.
14 (2) Social Security benefits.
15 (3) Public benefits paid or payable under a program which,
16 under Federal statute, provides for right of reimbursement which
17 supersedes State law for the amount of benefits paid from a
18 verdict or settlement.
19 Section 834-A. Periodic Payment of Future Damages.--(a) (1)
20 At the option of any party to an action asserting a medical
21 professional liability claim, future damages for economic loss
22 shall be awarded in:
23 (i) periodic payments as provided in this subsection, except
24 as provided in subsection (b); or
25 (ii) a lump sum payment reduced to present value by using a
26 discount rate of 3%.
27 (2) The trier of fact shall issue separate findings for each
28 claimant specifying the amount of:
29 (i) any past damages for:
30 (A) Medical expenses in a lump sum.
20010H1802B3320 - 40 -
1 (B) Loss of work earnings in a lump sum.
2 (C) Other economic losses in a lump sum.
3 (D) Noneconomic losses in a lump sum.
4 (ii) any future damages for:
5 (A) Medical expenses by year.
6 (B) Loss of work earnings by year.
7 (C) Other economic losses by year.
8 (D) Noneconomic losses in a lump sum.
9 (3) The trier of fact may vary the amount of periodic
10 payments for medical and other recoverable expenses from year to
11 year to account for different annual expenditure requirements.
12 For example, the trier of fact may provide for initial purchase
13 and replacements of medically necessary equipment in the years
14 that expenditures will be required.
15 (4) The trier of fact may incorporate into any future
16 medical expense award adjustments to account for reasonably
17 anticipated inflation and medical care innovations, such as new
18 technology, drugs, and techniques, that will decrease medical
19 costs, or make a separate finding on the applicable annual
20 percentage change.
21 (i) The commissioner shall annually establish, by January 1
22 of each year, a future medical expense adjustment factor that
23 takes into account reasonably anticipated medical expense
24 inflation as well as medical care innovations that will decrease
25 medical costs.
26 (ii) The commissioner may rely on such evidence as the
27 commissioner reasonably deems appropriate, provided that:
28 (A) The commissioner shall not rely on any price index
29 unless the commissioner uses a rolling average of the price
30 index or its substantial equivalent over at least the most
20010H1802B3320 - 41 -
1 recent ten-year period for which data is available.
2 (B) The commissioner shall not rely exclusively on any
3 inflation price index without consideration of reasonably
4 anticipated medical care innovations that will decrease medical
5 costs.
6 (iii) The trier of fact shall use the future medical expense
7 adjustment factor established by the commissioner and currently
8 in effect, unless a party establishes by clear and convincing
9 evidence that different adjustments are more appropriate.
10 (5) The trier of fact may incorporate into any future
11 earnings loss award adjustments to account for wage inflation
12 and productivity growth, or make a separate finding on the
13 applicable annual percentage change.
14 (i) The Secretary of Labor and Industry shall annually
15 establish, by January 1 of each year, future earnings loss
16 adjustment factors that take into account wage inflation and
17 productivity changes. The secretary shall establish separate
18 factors for different jobs, occupations and professions as
19 reasonably appropriate.
20 (ii) The secretary may rely on such evidence as the
21 secretary reasonably deems appropriate, provided that the
22 secretary shall not rely on wage change data unless the
23 commissioner uses a rolling average over at least the most
24 recent ten-year period for which data is available.
25 (iii) The trier of fact shall use the applicable future
26 earnings loss adjustment factor established by the Secretary and
27 currently in effect, unless a party establishes by clear and
28 convincing evidence that different adjustments are more
29 appropriate.
30 (6) The trier of fact may determine that future damages for
20010H1802B3320 - 42 -
1 medical losses will continue for the duration of the claimant's
2 life and make a lifetime medical expense award if such a finding
3 is supported by the evidence. In such a case, the trier of fact
4 shall determine the amount of medical expenses that the claimant
5 will incur annually while living, but shall not be required to
6 determine the life expectancy of the claimant.
7 (7) The trier of fact may award damages for loss of work
8 earnings for the duration of the claimant's pre-injury work-life
9 expectancy or until the claimant reaches 65 years of age,
10 whichever occurs earlier, if such a finding is supported by the
11 evidence. In such a case, the trier of fact shall specify the
12 claimant's pre-injury work-life expectancy.
13 (8) The trier of fact shall adjust work-loss damages to
14 account for the inapplicability of Federal, State and local
15 taxes and Social Security withholding to personal injury awards.
16 (9) Future damages for medical expenses and other economic
17 loss must be paid in the years that the trier of fact finds they
18 will accrue. Unless the court orders or approves a different
19 schedule for payment, the annual amounts due must be paid in 12
20 equal monthly installments, rounded to the nearest dollar. Each
21 installment is due and payable on the first day of the month in
22 which it accrues.
23 (10) Interest does not accrue on a periodic payment before
24 payment is due. If the payment is not made on or before the due
25 date, interest accrues as of that date.
26 (11) Liability to a claimant for periodic payments not yet
27 due for medical expenses terminates upon the claimant's death.
28 (12) Liability to a claimant for loss of earnings shall not
29 terminate at the claimant's death; provided however, that this
30 section shall not be construed as extending a loss of work
20010H1802B3320 - 43 -
1 earnings award beyond the time frame permitted under paragraph
2 (7).
3 (13) Each party liable for all or a portion of the judgment
4 shall provide funding for the awarded periodic payments,
5 separately or jointly with one or more others, by means of an
6 annuity contract or other qualified funding plan which is
7 approved by the court. The commissioner shall publish a list of
8 insurers designated by the commissioner as qualified to
9 participate in the funding of periodic-payment judgments.
10 (14) In the event that a claimant defaults on a required
11 periodic payment due to the insolvency of an insurer
12 participating in a qualified funding plan, the claimant shall be
13 entitled to receive the payment from:
14 (i) the Medical Professional Liability Catastrophe Loss
15 Fund; or
16 (ii) if the fund has ceased operations, the Property and
17 Casualty Insurance Guaranty Association.
18 The commissioner shall promulgate regulations for the
19 implementation of this section.
20 (15) The court which enters judgment shall retain
21 jurisdiction to enforce the judgment and to resolve related
22 disputes.
23 (b) Future damages shall not be awarded in periodic payments
24 if the claimant objects and stipulates that the claim for future
25 damages for economic loss, without reduction to present value,
26 does not exceed $100,000. In such a case, future damages shall
27 be reduced to present worth using a discount rate of 4% with no
28 adjustments for inflation or productivity growth.
29 (c) In the event that the claimant receives a collateral
30 source payment for an economic loss for which the claimant
20010H1802B3320 - 44 -
1 receives a periodic payment under subsection (a) or a lump-sum
2 payment under subsection (b), the claimant shall refund that
3 portion of the periodic payment or lump-sum payment that is
4 offset by the collateral source payment. For purposes of this
5 section, a collateral source payment is a payment or other
6 compensation that would be subject to a collateral source
7 reduction under section 602 if the payment or other compensation
8 was made for a past economic loss.
9 (d) At the request of the defendant, the claimant shall
10 maintain a collateral source benefit in effect or obtain a
11 collateral source benefit. In such a case, the defendant shall
12 be required to compensate the claimant for the reasonable costs
13 incurred by the claimant to the extent that the costs are not
14 covered by a collateral source. Such costs shall be reimbursed
15 in the years that the costs accrue in 12 equal monthly payments
16 payable on the first day of each month, unless the court
17 requires a different schedule.
18 Section 835-A. Permissible Argument as to Damages at
19 Trial.--(a) Except as provided in subsection (b), in a medical
20 professional liability action tried before a judge, jury or
21 other tribunal, an attorney during closing argument:
22 (1) May specifically argue in lump sums or by mathematical
23 formulae the amount the attorney deems to be an appropriate
24 award for all past and future economic or noneconomic damages or
25 both economic and noneconomic damages claimed to be recoverable.
26 (2) May, on behalf of a defendant, argue to the judge, jury
27 or other tribunal that an award of zero damages is appropriate,
28 even if there is a finding of liability against the defendant.
29 (b) (1) No party may argue a specific sum as provided in
30 subsection (a) unless the party first discloses to the court and
20010H1802B3320 - 45 -
1 opposing counsel that the party intends to argue the specific
2 damages listed in subsection (a) prior to the presentation of
3 closing arguments.
4 (2) Nothing in this subsection shall be construed to prevent
5 a defendant from arguing in any case that the facts and evidence
6 support a finding of no liability.
7 (3) Notwithstanding paragraph (1), arguments as to
8 appropriate amount of economic damages may be made without
9 notice to opposing counsel if evidence supporting economic
10 damages has been introduced at trial.
11 (c) Whenever, in a medical professional liability action
12 tried before a jury, specific lump sums or mathematical formulae
13 are argued during closing arguments as provided for in
14 subsection (a), the trial court shall instruct the jury that the
15 sums or mathematical formulae argued are not evidence but only
16 arguments and that the determination of the amount of
17 appropriate damages to be awarded, if any, is solely for the
18 jury's determination.
19 Section 6. Section 841-A(d) of the act, added November 26,
20 1996 (P.L.776, No.135), is amended to read:
21 Section 841-A. Mandatory Reporting.--* * *
22 (d) Each licensure board shall submit a report not later
23 than March 1 of each year to the chairman and the minority
24 chairman of the Consumer Protection and Professional Licensure
25 Committee of the Senate and to the chairman and minority
26 chairman of the Professional Licensure Committee of the House of
27 Representatives. The report shall include, but not be limited
28 to[, the number of reports received under subsection (a), the
29 status of the investigations of those reports, any disciplinary
30 action which has been taken and the length of time from the
20010H1802B3320 - 46 -
1 receipt of each report to final licensure board action.]:
2 (1) The number of complaint files against board licensees
3 that were opened in the preceding five calendar years.
4 (2) The number of complaint files against board licensees
5 that were closed in the preceding five calendar years.
6 (3) The number of disciplinary sanctions imposed upon board
7 licensees in the preceding five calendar years.
8 (4) The number of revocations, automatic suspensions,
9 immediate temporary suspensions and suspensions imposed,
10 voluntary surrenders accepted, license applications denied and
11 license reinstatements denied in the preceding five calendar
12 years.
13 (5) The range of lengths of suspensions, other than
14 automatic suspensions and immediate temporary suspensions,
15 imposed during the preceding five calendar years.
16 Section 7. Section 901 of the act is amended to read:
17 Section 901. Investigations.--(a) The State Board of
18 Medical Education and Licensure, the State Board of Osteopathic
19 Examiners and the State Board of Podiatry Examiners shall employ
20 such qualified investigators and attorneys as are necessary to
21 fully implement their authority to revoke, suspend, limit or
22 otherwise regulate the licenses of physicians; issue reprimands,
23 fines, require refresher educational courses, or require
24 licensees to submit to medical treatment.
25 (b) Any Commonwealth agency that obtains information
26 indicating that a board-regulated practitioner employed by the
27 Commonwealth agency or with whom the Commonwealth agency
28 contracts as an independent contractor was involved in an event,
29 occurrence or situation that compromised patient safety and
30 resulted in unintended injury requiring the delivery of
20010H1802B3320 - 47 -
1 additional health care services to a patient shall make or cause
2 to be made a report to the appropriate board listed in
3 subsection (a) within 60 days of obtaining the information. Any
4 person or Commonwealth agency who makes a report pursuant to
5 this section in good faith and without malice shall be immune
6 from any civil or criminal liability arising from the report.
7 Section 8. The act is amended by adding sections to read:
8 Section 901.1. Reporting to State Licensing Boards.--A
9 physician, a certified nurse midwife or a podiatrist shall
10 report to the State Board of Medicine, the State Board of
11 Osteopathic Medicine or the State Board of Podiatry, as
12 appropriate, within 60 days of the occurrence of any of the
13 following:
14 (1) A complaint in a civil action based on medical
15 malpractice is filed against the individual.
16 (2) Disciplinary action is taken against the individual by a
17 health care licensing authority of another jurisdiction.
18 (3) The individual is sentenced for an offense graded above
19 a summary offense. This paragraph includes sentencing in another
20 jurisdiction for an offense which, if committed in this
21 Commonwealth would be graded above a summary offense.
22 (4) The individual is arrested for, or charged in an
23 indictment or information with:
24 (i) a felony; or
25 (ii) an offense under the act of April 14, 1972 (P.L.233,
26 No.64), known as "The Controlled Substance, Drug, Device and
27 Cosmetic Act."
28 (5) A health care facility or hospital, as a result of a
29 peer review proceeding, terminates or curtails the individual's
30 employment, association or professional privileges.
20010H1802B3320 - 48 -
1 Section 901.2. Duty to Notify Licensing Board about Certain
2 Arrests.--A board-registered practitioner who is licensed by a
3 licensure board shall notify the licensing board in writing
4 within 60 days of an arrest for a felony or for an offense under
5 the act of April 14, 1972 (P.L.233, No.64), known as "The
6 Controlled Substance, Drug, Device and Cosmetic Act."
7 Section 9. Section 902 of the act is amended to read:
8 Section 902. Hearings.--(a) The State Board of [Medical
9 Education and Licensure] Medicine, the State Board of
10 Osteopathic [Examiners] Medicine and the State Board of Podiatry
11 [Examiners] shall appoint, with the approval of the Governor,
12 such hearing examiners as shall be necessary to conduct hearings
13 in accordance with the disciplinary authority granted by the act
14 of July 20, 1974 (P.L.551, No.190), known as the "Medical
15 Practice Act of 1974," and the act of March 19, 1909 (P.L.46,
16 No.29), entitled, as amended, "An act to regulate the practice
17 of osteopathy and surgery in the State of Pennsylvania; to
18 provide for the establishment of a State Board of Osteopathic
19 Examiners; to define the powers and duties of said Board of
20 Osteopathic Examiners; to provide for the examining and
21 licensing of osteopathic physicians and surgeons in this State;
22 and to provide penalties for the violation of this act."
23 (b) The State Board of [Medical Education and Licensure]
24 Medicine or the State Board of Osteopathic [Examiners] Medicine
25 shall have the power to adopt and promulgate rules and
26 regulations setting forth the functions, powers, standards and
27 duties to be followed by any hearing examiners appointed under
28 the provisions of this section.
29 (c) Such hearing examiners shall have the power to conduct
30 hearings in accordance with the regulations of the State Board
20010H1802B3320 - 49 -
1 of [Medical Education and Licensure] Medicine or the State Board
2 of Osteopathic [Examiners] Medicine, and to issue subpoenas
3 requiring the attendance and testimony of individuals or the
4 production of, pertinent books, records, documents and papers by
5 persons whom they believe to have information relevant to any
6 matter pending before the examiner. Such examiner shall also
7 have the power to administer oaths.
8 (d) A complaint against a licensed practitioner must be
9 filed with the appropriate board within ten years of the board's
10 receipt of notice of the events underlying the complaint.
11 (e) Latches shall not bar a hearing under this section.
12 Section 10. The act is amended by adding a section to read:
13 Section 902.1. Confidentiality of Records of State Board of
14 Medicine or State Board of Osteopathic Medicine.--(a) This
15 section shall apply only to reports, communications, records,
16 papers and other objects in the custody of the State Board of
17 Medicine or State Board of Osteopathic Medicine and to persons
18 employed by or acting in their official capacity on behalf of or
19 for the State Board of Medicine or State Board of Osteopathic
20 Medicine.
21 (b) All reports, communications, records, papers and other
22 objects disclosing the institution, progress or result of an
23 investigation undertaken by the State Board of Medicine or State
24 Board of Osteopathic Medicine or concerning a complaint filed
25 with the State Board of Medicine or State Board of Osteopathic
26 Medicine shall be confidential and privileged, shall not be
27 subject to subpoena or discovery and shall not be introduced
28 into evidence in any judicial or administrative proceeding. No
29 person who has investigated or has access to or custody of a
30 report, communication, record, paper or other object which is
20010H1802B3320 - 50 -
1 confidential and privileged under this subsection shall be
2 required to testify in any judicial or administrative proceeding
3 without the written consent of the State Board of Medicine or
4 State Board of Osteopathic Medicine. This section shall not
5 preclude or limit introduction of the contents of an
6 investigative file or related witness testimony in a hearing or
7 proceeding held before the State Board of Medicine or State
8 Board of Osteopathic Medicine.
9 (c) All reports, communications, records, papers and other
10 objects disclosing a person's admission, participation, progress
11 or completion of any impaired professional program approved by
12 the State Board of Medicine or State Board of Osteopathic
13 Medicine shall be confidential and privileged, shall not be
14 subject to subpoena or discovery and shall not be introduced
15 into evidence in any judicial or administrative proceeding. No
16 person who has prepared or who has access to or custody of a
17 report, communication, record, paper or other object which is
18 confidential and privileged under this subsection shall be
19 permitted or required to testify in any judicial or
20 administrative proceeding. This section shall not preclude or
21 limit the availability or introduction of impaired professional
22 program records or related witness testimony in a proceeding
23 before the State Board of Medicine or State Board of Osteopathic
24 Medicine for alleged violations of an impaired professional
25 program agreement.
26 (d) Except as provided in subsections (b) and (c), this
27 section shall not prevent disclosure of any report,
28 communication, record, paper or other object pertaining to the
29 status of a license, permit or certificate issued or prepared by
30 the State Board of Medicine or State Board of Osteopathic
20010H1802B3320 - 51 -
1 Medicine or relating to a public disciplinary proceeding or
2 hearing.
3 Section 11. Section 905 of the act is amended to read:
4 Section 905. Review by State Licensing Boards.--(a) If
5 application for review is made to the State Board of [Medical
6 Education and Licensure] Medicine, the State Board of
7 Osteopathic [Examiners] Medicine or the State Board of Podiatry
8 [Examiners] within 20 days from the date of any decision made as
9 a result of a hearing held by a hearing examiner, the State
10 Board of [Medical Education and Licensure] Medicine, the State
11 Board of Osteopathic [Examiners] Medicine or the State Board of
12 Podiatry [Examiners] shall review the evidence, and if deemed
13 advisable by the board, hear argument and additional evidence.
14 If the appropriate board determines that a licensee has
15 practiced negligently, the board may impose disciplinary or
16 corrective measures.
17 (b) As soon as practicable, the State Board of [Medical
18 Education and Licensure] Medicine, the State Board of
19 Osteopathic [Examiners] Medicine or the State Board of Podiatry
20 [Examiners] shall make a decision and shall file the same with
21 its finding of the facts on which it is based and send a copy
22 thereof to each of the parties in dispute.
23 Section 12. The act is amended by adding sections to read:
24 Section 908. Continuing Medical Education.--(a) In
25 accordance with section 901, the State Board of Medicine shall
26 adopt, promulgate and enforce rules and regulations establishing
27 a program of continuing medical education and shall establish
28 the number of required hours. In so doing, the board may, among
29 other things, do the following:
30 (1) Review and use guidelines and pronouncements regarding
20010H1802B3320 - 52 -
1 professional continuing education of recognized educational and
2 professional organizations.
3 (2) Prescribe educational course content, organization and
4 duration.
5 (3) Take into account the accessibility of continuing
6 education course sites.
7 (4) Waive the requirement in the following instances:
8 (i) When the requirement creates individual hardship, if the
9 board finds that good cause is shown and that public safety and
10 welfare are not jeopardized by the waiver.
11 (ii) When the licensee is retired from active practice.
12 (b) Except as provided in subsection (a)(4), each person
13 licensed to practice medicine and surgery without restriction
14 must fulfill continuing medical education requirements during
15 the two-year period immediately preceding a biennial date for
16 reregistering with the board.
17 Section 909. Mandatory Referral for Claims History.--(a) If
18 a health care provider shall have three or more judgments
19 entered against it or be party to a settlement involving
20 contribution by the fund within any two-year period, the
21 provider shall be referred to the professional licensure board
22 for investigation.
23 Section 13. The act is amended by adding an article to read:
24 ARTICLE IX-A
25 PATIENT SAFETY
26 Section 901-A. Scope.
27 This article relates to patient safety.
28 Section 902-A. Definitions.
29 The following words and phrases when used in this article
30 shall have the meanings given to them in this section unless the
20010H1802B3320 - 53 -
1 context clearly indicates otherwise:
2 "Ambulatory surgical facility." An entity defined as an
3 ambulatory surgical facility under the act of July 19, 1979
4 (P.L.130, No.48), known as the Health Care Facilities Act.
5 "Authority." The Patient Safety Authority established in
6 section 903-A.
7 "Birth center." An entity defined as a birth center under
8 the act of July 19, 1979 (P.L.130, No.48), known as the Health
9 Care Facilities Act.
10 "Department." The Department of Health of the Commonwealth.
11 "Fund." The Patient Safety Trust Fund established in section
12 905-A.
13 "Health care worker." An employee, independent contractor,
14 licensee or other individual authorized to provide services in a
15 medical facility.
16 "Hospital." An entity defined as a hospital under the act of
17 July 19, 1979 (P.L.130, No.48), known as the Health Care
18 Facilities Act.
19 "Incident." An undesirable or unintended event, occurrence
20 or situation involving the clinical care of a patient in a
21 medical facility which could have injured the patient but did
22 not either cause an injury or require the delivery of additional
23 health care services to the patient. The term does not include a
24 serious event.
25 "Licensee." An individual who is all of the following:
26 (1) Licensed or certified by the Department of State to
27 provide professional services in this Commonwealth.
28 (2) Employed by or authorized to provide professional
29 services in a medical facility.
30 "Medical facility." An ambulatory surgical facility, birth
20010H1802B3320 - 54 -
1 center or hospital.
2 "Patient safety officer." An individual designated by a
3 medical facility under section 909-A.
4 "Serious event." An event, occurrence or situation in a
5 medical facility that compromises patient safety and results in
6 an undesirable injury requiring the delivery of additional
7 health care services to a patient. The term does not include an
8 incident.
9 Section 903-A. Establishment of authority.
10 (a) Establishment.--There is hereby established a body
11 corporate and politic to be known as the Patient Safety
12 Authority. The powers and duties of the authority shall be
13 vested in and exercised by a board of directors.
14 (b) Composition.--The board of the authority shall consist
15 of 11 members, composed and appointed in accordance with the
16 following:
17 (1) The Physician General.
18 (2) Four residents of this Commonwealth, one of whom
19 shall be appointed by the President pro tempore of the
20 Senate, one of whom shall be appointed by the Minority Leader
21 of the Senate, one of whom shall be appointed by the Speaker
22 of the House of Representatives and one of whom shall be
23 appointed by the Minority Leader of the House of
24 Representatives, who shall serve terms coterminous with their
25 respective appointing authorities.
26 (3) A health care worker residing in this Commonwealth
27 who is a physician and is appointed by the Governor, who
28 shall serve an initial term of three years.
29 (4) A health care worker residing in this Commonwealth
30 who is licensed by the Department of State as a nurse and is
20010H1802B3320 - 55 -
1 appointed by the Governor, who shall serve an initial term of
2 three years.
3 (5) A health care worker residing in this Commonwealth
4 who is licensed by the Department of State as a pharmacist
5 and is appointed by the Governor, who shall serve an initial
6 term of two years.
7 (6) A health care worker residing in this Commonwealth
8 who is employed by a hospital and is appointed by the
9 Governor, who shall serve an initial term of two years.
10 (7) Two residents of this Commonwealth who are not
11 health care workers and are appointed by the Governor, who
12 shall serve a term of four years.
13 (c) Terms.--With the exception of paragraphs (1) and (2),
14 members of the board shall serve for terms of four years after
15 the initial terms designated in subsection (b). No appointed
16 member shall be eligible to serve more than two full consecutive
17 terms.
18 (d) Quorum.--A majority of the members of the board shall
19 constitute a quorum. Notwithstanding any other provision of law,
20 action may be taken by the board at a meeting upon a vote of the
21 majority of its members present in person or through the use of
22 amplified telephonic equipment if authorized by the bylaws of
23 the board. The board shall meet at the call of the chairperson
24 or as may be provided in the bylaws of the board. The board
25 shall meet at least quarterly. Meetings of the board may be held
26 anywhere within this Commonwealth. The Physician General shall
27 be the chairperson.
28 Section 904-A. Powers and duties.
29 (a) General rule.--The authority shall do all of the
30 following:
20010H1802B3320 - 56 -
1 (1) Adopt bylaws necessary to carry out the provisions
2 of this act.
3 (2) Employ staff as necessary to implement this act.
4 (3) Make, execute and deliver contracts and other
5 instruments.
6 (4) Apply for, solicit, receive, establish priorities
7 for, allocate, disburse, contract for, administer and spend
8 funds in the fund and other funds that are made available to
9 the authority from any source consistent with the purposes of
10 this act.
11 (5) Contract with an experienced for-profit or nonprofit
12 entity or entities, other than a health care provider, to do
13 all of the following:
14 (i) Collect, analyze and evaluate data regarding
15 reports of serious events and incidents, including the
16 identification of a pattern in frequency or severity at
17 certain medical facilities or in certain regions of this
18 Commonwealth.
19 (ii) Transmit to the authority recommendations for
20 changes in health care practices and procedures, which
21 may be instituted for the purpose of reducing the number
22 and severity of serious events and incidents.
23 (iii) Directly advise reporting medical facilities
24 of immediate changes that can be instituted to reduce
25 serious events and incidents.
26 (6) Receive and evaluate recommendations made by the
27 entity or entities contracted with in accordance with
28 paragraph (5) and report those recommendations to the
29 department, which shall have no more than 30 days to review
30 the recommendations.
20010H1802B3320 - 57 -
1 (7) After consultation and approval by the department,
2 issue recommendations to medical facilities on a facility-
3 specific and Statewide basis regarding changes, trends and
4 improvements in health care practices and procedures for the
5 purpose of reducing the number and severity of serious events
6 and incidents. Such recommendations shall be issued to
7 medical facilities and the department on a continuing basis
8 and shall be published and posted on the department's and the
9 authority's publicly accessible World Wide Web sites.
10 (8) Meet at least quarterly with the department for
11 purposes of implementing this article.
12 (b) Anonymous reports to the authority.--A health care
13 worker who has complied with section 908-A(a) may file an
14 anonymous report regarding a serious event with the authority.
15 The authority shall receive and investigate the report after
16 notice to the affected medical facility. The authority shall
17 conduct its own review, unless the medical facility has already
18 commenced an investigation of the serious event. The medical
19 facility shall provide the authority with the results of its
20 investigation no later than 30 days after receiving notice
21 pursuant to this subsection. If the authority is dissatisfied
22 with the adequacy of the investigation conducted by the medical
23 facility, the authority shall perform its own review of the
24 serious event and may cite a medical facility and any involved
25 licensee for failure to report pursuant to section 913-A(c) and
26 (d).
27 (c) Annual report to General Assembly.--
28 (1) The authority shall report no later than May 1,
29 2003, and annually thereafter to the department and the
30 General Assembly on the authority's activities in the
20010H1802B3320 - 58 -
1 preceding year. The report shall include, but not be limited
2 to:
3 (i) A schedule of the year's meetings.
4 (ii) A list of contracts entered into pursuant to
5 this section, including the amounts awarded to each
6 contractor.
7 (iii) A summary of the fund receipts and
8 expenditures, including a financial statement and balance
9 sheet.
10 (iv) The number of serious events and incidents
11 reported by medical facilities on a geographical basis.
12 (v) The information derived from the data collected
13 including any recognized trends concerning patient
14 safety.
15 (vi) Recommendations for statutory or regulatory
16 changes which may help improve patient safety in the
17 Commonwealth.
18 (2) The annual report shall also be distributed to the
19 Secretary of Health, the Chair and Minority Chair of the
20 Public Health and Welfare Committee of the Senate and the
21 Chair and Minority Chair of the Health and Human Services
22 Committee of the House of Representatives.
23 (3) The annual report shall be made available for public
24 inspection and shall be posted on the Department's publicly
25 accessible World Wide Web site.
26 Section 905-A. Patient Safety Trust Fund.
27 (a) Establishment.--There is hereby established a separate
28 account in the State Treasury to be known as the Patient Safety
29 Trust Fund. The fund shall be administered by the authority. All
30 interest earned from the investment or deposit of moneys
20010H1802B3320 - 59 -
1 accumulated in the fund shall be deposited in the fund for the
2 same use.
3 (b) Funds.--All moneys deposited into the fund shall be held
4 in trust and shall not be considered general revenue of the
5 Commonwealth but shall be used only to effectuate the purposes
6 of this article as determined by the authority.
7 (c) 2002 assessment.--Prior to the first day of June 2002,
8 each medical facility shall pay the department a surcharge on
9 its licensing fee as necessary to provide sufficient revenues to
10 operate the authority. The assessment shall not exceed a total
11 of $5,000,000. The department shall transfer the total surcharge
12 amount to the fund.
13 (d) Base amount.--For each succeeding calendar year, the
14 department shall determine and assess each medical facility its
15 proportionate share of the authority's budget. The amount shall
16 be capped at $5,000,000 in 2002 and increased according to the
17 consumer price index in each succeeding year.
18 (e) Expenditures.--Moneys in the fund may be expended by the
19 authority to implement this article.
20 (f) Dissolution.--In the event that the fund is discontinued
21 or the authority is dissolved by operation of law, any balance
22 remaining in the fund, after deducting administrative costs of
23 liquidation, shall be returned to the medical facilities in
24 proportion to their financial contributions to the fund in the
25 preceding calendar year.
26 (g) Failure to pay assessment.--If after 30 days' notice a
27 medical facility fails to pay an assessment levied by the
28 department under this article, the department may assess an
29 administrative penalty of $1,000 per day until the assessment is
30 paid.
20010H1802B3320 - 60 -
1 Section 906-A. Department responsibilities.
2 (a) General rule.--The department shall do all of the
3 following:
4 (1) Review and approve patient safety plans in
5 accordance with section 907-A.
6 (2) Receive reports of serious events under sections
7 904-A and 913-A.
8 (3) Investigate serious events.
9 (4) In conjunction with the authority, analyze and
10 evaluate existing health care procedures and approve
11 recommendations issued by the authority pursuant to section
12 904-A(a)(6) and (7).
13 (5) Meet at least quarterly with the authority to
14 receive its recommendations to improve patient safety.
15 (b) Department consideration.--The recommendations made to
16 medical facilities pursuant to subsection (a)(4) may be
17 considered by the department for licensure purposes under the
18 act of July 19, 1979 (P.L.130, No.48), known as the Health Care
19 Facilities Act, but shall not be considered mandatory unless
20 adopted by the department as regulations pursuant to the act of
21 June 25, 1982 (P.L.633, No.181), known as the Regulatory Review
22 Act.
23 Section 907-A. Patient safety plans.
24 (a) Development.--A medical facility shall develop and
25 implement an internal patient safety plan for the purpose of
26 improving the health and safety of patients. The plan shall be
27 developed in consultation with the licensees providing health
28 care services in the medical facility.
29 (b) Requirements.--A patient safety plan shall:
30 (1) Designate a patient safety officer as set forth in
20010H1802B3320 - 61 -
1 section 909-A.
2 (2) Establish a patient safety committee as set forth in
3 section 910-A.
4 (3) Establish a system for health care workers of a
5 medical facility to report serious events and incidents which
6 shall be accessible 24 hours a day, seven days a week.
7 (4) Prohibit any retaliatory action against a health
8 care worker for reporting a serious event or incident in
9 accordance with the act of December 12, 1986 (P.L.1559,
10 No.169), known as the Whistleblower Law.
11 (c) Approval.--Within 90 days of the effective date of this
12 section, and commensurate with its licensing application or
13 renewal thereafter, a medical facility shall submit its patient
14 safety plan to the department for approval consistent with the
15 requirements of this section. Unless the department approves or
16 rejects the plan within 60 days of receipt, the plan shall be
17 deemed approved.
18 (d) Employee notification.--Upon approval of the patient
19 safety plan, a medical facility shall notify all health care
20 workers of the medical facility of the patient safety plan.
21 Compliance with the patient safety plan shall be required as a
22 condition of employment or credentialing at the medical
23 facility.
24 Section 908-A. Health care workers.
25 (a) Reporting.--A health care worker who reasonably believes
26 that a serious event or incident has occurred shall report the
27 incident or serious event according to the patient safety plan
28 of the medical facility, unless the health care worker knows
29 that a report has already been made. The report shall be made
30 immediately or as soon thereafter as reasonably practicable, but
20010H1802B3320 - 62 -
1 in no event later than 24 hours after the occurrence of a
2 serious event or incident.
3 (b) Duty to notify patient.--A licensee responsible for the
4 patient during the occurrence of a serious event in a medical
5 facility shall provide written notification to the affected
6 patient and, with the consent of the patient, to an available
7 family member, of the serious event within seven days of
8 occurrence. For unemancipated patients who are under 18 years of
9 age, the parent or guardian shall be notified in accordance with
10 this subsection.
11 (c) Liability.--A health care worker who reports the
12 occurrence of a serious event or incident in accordance with
13 subsection (a) or (b) shall not be subject to any retaliatory
14 action for reporting the serious event or incident, as set forth
15 in the act of December 12, 1986 (P.L.1559, No.169), known as the
16 Whistleblower Law.
17 (d) Limitation.--Nothing in this section shall limit a
18 medical facility's ability to take appropriate disciplinary
19 action against a health care worker for failure to meet defined
20 performance expectations or to take corrective action against a
21 licensee for unprofessional conduct, including making false
22 reports or failing to report serious events under this article.
23 Section 909-A. Patient safety officer.
24 A patient safety officer of a medical facility shall do all
25 of the following:
26 (1) Serve on the patient safety committee.
27 (2) Ensure the investigation of all reports of serious
28 events and incidents.
29 (3) Take such action as is immediately necessary to
30 ensure patient safety as a result of the investigation.
20010H1802B3320 - 63 -
1 (4) Report to the patient safety committee regarding any
2 action taken to promote patient safety as a result of
3 investigations commenced pursuant to this section.
4 Section 910-A. Patient safety committee.
5 (a) Composition.--
6 (1) A hospital's patient safety committee shall be
7 composed of the medical facility's patient safety officer,
8 and at least three health care workers of the medical
9 facility and two residents of the community served by the
10 medical facility who are not agents, employees or contractors
11 of the medical facility. No more than one member of the
12 patient safety committee shall be a member of the medical
13 facility's board of trustees. The committee shall include
14 members of the medical facility's medical and nursing staff.
15 (2) An ambulatory surgical facility's or birth center's
16 patient safety committee shall be composed of the medical
17 facility's patient safety officer, and at least two health
18 care workers of the medical facility and one resident of the
19 community served by the ambulatory surgical facility or birth
20 center who is not an agent, employee or contractor of the
21 ambulatory surgical facility or birth center. No more than
22 one member of the patient safety committee shall be a member
23 of the medical facility's board of governance. The committee
24 shall include members of the medical facility's medical and
25 nursing staff.
26 (c) Responsibilities.--A patient safety committee of a
27 medical facility shall do all of the following:
28 (1) Meet at least monthly.
29 (2) Receive reports from the patient safety officer.
30 (3) Evaluate investigations and actions of the patient
20010H1802B3320 - 64 -
1 safety officer on all reports.
2 (4) Review and evaluate the quality of services provided
3 by the medical facility. A review shall include discussions
4 of reports made under section 908-A and analyses of health
5 care procedures and practices.
6 (5) Make recommendations to improve the quality of
7 services provided by the medical facility, including
8 recommendations to eliminate future serious events and
9 incidents.
10 (6) Report to the administrative officer and governing
11 body of the medical facility on a quarterly basis the number
12 of serious events and incidents and the actions taken by the
13 medical facility to address the patient safety issues
14 involved and its recommendations to improve the quality of
15 services provided by the medical facility.
16 Section 911-A. Peer review.
17 (a) All reports, data, logs, information, documents,
18 findings, compilations, summaries, testimony and other records
19 generated, acquired or obtained by a patient, safety officer,
20 administrative officer, governing body of a medical facility,
21 patient safety authority, patient safety committee or the
22 department in accordance with this article shall be records
23 within the meaning of section 4 of the act of July 20, 1974
24 (P.L.564, No.193), known as the Peer Review Protection Act, and
25 shall be afforded the statutory protections granted records of a
26 review organization under the Peer Review Protection Act.
27 (b) All information collected under subsection (a) shall not
28 be considered original source documents as defined in the Peer
29 Review Protection Act.
30 (c) All information collected under subsection (a) shall not
20010H1802B3320 - 65 -
1 be subject to requests under the act of June 21, 1957 (P.L.390,
2 No.212), referred to as the Right-to-Know Law.
3 Section 912-A. Patient safety discount.
4 A medical facility may make application to the Insurance
5 Department for certification of any program that is recommended
6 by the authority that results in the reduction of serious
7 events. The Insurance Department, in consultation with the
8 Department of Health, shall develop the criteria for such
9 certification. Upon receipt of the certification by the
10 Insurance Department, a medical facility shall receive a
11 discount in the rate or rates applicable for mandated basic
12 insurance coverage required by law, with the level of such
13 discount determined by the Insurance Department.
14 Section 913-A. Medical facility reports and notifications.
15 (a) Serious event reports.--A medical facility shall report
16 the occurrence of a serious event to the department in
17 accordance with the act of July 19, 1979 (P.L.130, No.48), known
18 as the Health Care Facilities Act. A medical facility shall
19 report the occurrence of a serious event to the authority within
20 24 hours of the medical facility's confirmation of the
21 occurrence of the serious event. The report to the authority
22 shall be in the form and manner prescribed by the authority in
23 consultation with the department and shall not include the name
24 of any patient or any other identifiable individual information.
25 (b) Incident reports.--A medical facility shall report the
26 occurrence of an incident to the authority in a form and manner
27 prescribed by the authority and shall not include the name of
28 any patient or any other identifiable individual information.
29 (c) Notifications to licensure boards.--If a medical
30 facility discovers that a licensee providing health care
20010H1802B3320 - 66 -
1 services in the medical facility during a serious event failed
2 to report the event in accordance with section 908-A(a) or (b),
3 the medical facility shall notify the licensee's licensing board
4 of the failure to report.
5 (d) Failure to report or notify.--A medical facility which
6 fails to report a serious event or to notify a licensure board
7 in accordance with this act may be subject to a civil penalty by
8 the department of $1,000 per day.
9 Section 914-A. Preservation and accuracy of medical records.
10 (a) Entries in patient charts concerning care rendered shall
11 be made contemporaneously. Except as otherwise provided for in
12 this section, it shall be unlawful to make additions or
13 deletions to a patient's chart.
14 (b) It shall not be unlawful for a health care provider to:
15 (1) Correct information on a patient's chart, where
16 information has been entered erroneously, or where it is
17 necessary to clarify entries made thereon, provided that such
18 corrections or additions shall be clearly identified as
19 subsequent entries by a date and time.
20 (2) To add information to a patient's chart where it was
21 not available at the time the record was first created,
22 provided that:
23 (i) Such additions shall be clearly dated and timed
24 as subsequent entries.
25 (ii) A health care provider may add supplemental
26 information within a reasonable time.
27 (c) It shall be unlawful for a health care provider to
28 destroy or discard diagnostic slides, specimens, surgical
29 hardware or X-rays without the written consent of the patient,
30 provided that records may be destroyed by order of court or
20010H1802B3320 - 67 -
1 after seven years has passed from their creation.
2 (d) In any civil action in which the plaintiff proves by a
3 preponderance of the evidence that there has been alteration or
4 destruction of medical records, the trial court, in its
5 discretion, may instruct the jury to consider whether such
6 alteration or destruction occurred in an attempt to eliminate
7 evidence that a health care provider breached the standard of
8 care with respect to that patient.
9 (e) Alteration or destruction of medical records, for the
10 purpose of eliminating information that would give rise to civil
11 liability on the part of a health care provider, shall
12 constitute a ground for suspension by the State Board of
13 Medicine. A health care provider who is aware of alteration or
14 destruction in violation of this section shall report any party
15 suspected of such conduct to the State Board of Medicine.
16 Section 14. The act is amended by adding a section to read:
17 Section 1005.1. Board-imposed Civil Penalty.--In addition to
18 any other civil remedy or criminal penalty provided for in this
19 act, the act of December 20, 1985 (P.L.457, No.112), known as
20 the "Medical Practice Act of 1985," or the act of October 5,
21 1978 (P.L.1109, No.261), known as the "Osteopathic Medical
22 Practice Act," the State Board of Medicine and the State Board
23 of Osteopathic Medicine, by a vote of the majority of the
24 maximum number of the authorized membership of each board as
25 provided by law, or by a vote of the majority of the duly
26 qualified and confirmed membership or a minimum of five members,
27 whichever is greater, may levy a civil penalty of up to $10,000
28 on any current licensee who violates any provision of the
29 "Medical Practice Act of 1985" or the "Osteopathic Medical
30 Practice Act" or on any person who practices medicine or
20010H1802B3320 - 68 -
1 osteopathic medicine without being properly licensed to do so
2 under the "Medical Practice Act of 1985" or the "Osteopathic
3 Medical Practice Act." The boards shall levy this penalty only
4 after affording the accused party the opportunity for a hearing,
5 as provided in 2 Pa.C.S. (relating to administrative law and
6 procedure).
7 Section 15. A person who is an employee of the Medical
8 Professional Liability Catastrophe Loss Fund on the effective
9 date of this section shall be given priority consideration for
10 employment to fill vacancies with executive agencies under the
11 Governor's jurisdiction.
12 Section 16. The amendment of sections 103 and 605 and the
13 addition of Article VII-A of the act shall apply to any claim
14 that meets all of the following:
15 (1) The claim is asserted against a health care provider
16 for a breach of contract or tort.
17 (2) The breach of contract or tort upon which the claim
18 is asserted occurred before or after the effective date of
19 this section.
20 (3) The claim is filed after the effective date of this
21 section.
22 Section 17. The provisions of this act are severable. If any
23 provision of this act or its application to any person or
24 circumstance is held invalid, the invalidity shall not affect
25 other provisions or applications of this act which can be given
26 effect without the invalid provision or application.
27 Section 18. (a) Except as provided in subsection (b), this
28 act shall apply to all pending actions initiated on or after the
29 effective date of this section and in which a verdict has not
30 been rendered on the effective date of this section.
20010H1802B3320 - 69 -
1 (b) The amendment of section 902 of the act shall apply to
2 causes of action against licensed practitioners which arise on
3 or after the effective date of this act.
4 Section 19. This act shall take effect in 60 days.
5 CHAPTER 1 <--
6 PRELIMINARY PROVISIONS
7 SECTION 101. SHORT TITLE.
8 THIS ACT SHALL BE KNOWN AND MAY BE CITED AS THE MEDICAL CARE
9 AVAILABILITY AND REDUCTION OF ERROR (MCARE) ACT.
10 SECTION 102. DECLARATION OF POLICY.
11 THE GENERAL ASSEMBLY FINDS AND DECLARES AS FOLLOWS:
12 (1) IT IS THE PURPOSE OF THIS ACT TO ENSURE THAT MEDICAL
13 CARE IS AVAILABLE IN THIS COMMONWEALTH THROUGH A
14 COMPREHENSIVE AND HIGH-QUALITY HEALTH CARE SYSTEM.
15 (2) ACCESS TO A FULL SPECTRUM OF HOSPITAL SERVICES AND
16 TO HIGHLY TRAINED PHYSICIANS IN ALL SPECIALTIES MUST BE
17 AVAILABLE ACROSS THIS COMMONWEALTH.
18 (3) TO MAINTAIN THIS SYSTEM, MEDICAL PROFESSIONAL
19 LIABILITY INSURANCE HAS TO BE OBTAINABLE AT AN AFFORDABLE AND
20 REASONABLE COST IN EVERY GEOGRAPHIC REGION OF THIS
21 COMMONWEALTH.
22 (4) A PERSON WHO HAS SUSTAINED INJURY OR DEATH AS A
23 RESULT OF MEDICAL NEGLIGENCE BY A HEALTH CARE PROVIDER MUST
24 BE AFFORDED A PROMPT DETERMINATION AND FAIR COMPENSATION.
25 (5) EVERY EFFORT MUST BE MADE TO REDUCE AND ELIMINATE
26 MEDICAL ERRORS BY IDENTIFYING PROBLEMS AND IMPLEMENTING
27 SOLUTIONS THAT PROMOTE PATIENT SAFETY.
28 (6) RECOGNITION AND FURTHERANCE OF ALL OF THESE ELEMENTS
29 IS ESSENTIAL TO THE PUBLIC HEALTH, SAFETY AND WELFARE OF ALL
30 THE CITIZENS OF PENNSYLVANIA.
20010H1802B3320 - 70 -
1 SECTION 103. DEFINITIONS.
2 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS ACT SHALL
3 HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
4 CONTEXT CLEARLY INDICATES OTHERWISE:
5 "BIRTH CENTER." AN ENTITY LICENSED AS A BIRTH CENTER UNDER
6 THE ACT OF JULY 19, 1979 (P.L.130, NO.48), KNOWN AS THE HEALTH
7 CARE FACILITIES ACT.
8 "CLAIMANT." A PATIENT, INCLUDING A PATIENT'S IMMEDIATE
9 FAMILY, GUARDIAN, PERSONAL REPRESENTATIVE OR ESTATE.
10 "COMMISSIONER." THE INSURANCE COMMISSIONER OF THE
11 COMMONWEALTH.
12 "GUARDIAN." A FIDUCIARY WHO HAS THE CARE AND MANAGEMENT OF
13 THE ESTATE OR PERSON OF A MINOR OR AN INCAPACITATED PERSON.
14 "HEALTH CARE PROVIDER." A PRIMARY HEALTH CARE CENTER OR A
15 PERSON, INCLUDING A CORPORATION, UNIVERSITY OR OTHER EDUCATIONAL
16 INSTITUTION LICENSED OR APPROVED BY THE COMMONWEALTH TO PROVIDE
17 HEALTH CARE OR PROFESSIONAL MEDICAL SERVICES AS A PHYSICIAN, A
18 CERTIFIED NURSE MIDWIFE, A PODIATRIST, HOSPITAL, NURSING HOME,
19 BIRTH CENTER, AND EXCEPT AS TO SECTION 711(A), AN OFFICER,
20 EMPLOYEE OR AGENT OF ANY OF THEM ACTING IN THE COURSE AND SCOPE
21 OF EMPLOYMENT.
22 "HOSPITAL." AN ENTITY LICENSED AS A HOSPITAL UNDER THE ACT
23 OF JUNE 13, 1967 (P.L.31, NO.21), KNOWN AS THE PUBLIC WELFARE
24 CODE, OR THE ACT OF JULY 19, 1979 (P.L.130, NO.48), KNOWN AS THE
25 HEALTH CARE FACILITIES ACT.
26 "IMMEDIATE FAMILY." A PARENT, A SPOUSE, A CHILD OR AN ADULT
27 SIBLING RESIDING IN THE SAME HOUSEHOLD.
28 "NURSING HOME." AN ENTITY LICENSED AS A NURSING HOME UNDER
29 THE ACT OF JULY 19, 1979 (P.L.130, NO.48), KNOWN AS THE HEALTH
30 CARE FACILITIES ACT.
20010H1802B3320 - 71 -
1 "PATIENT." A NATURAL PERSON WHO RECEIVES OR SHOULD HAVE
2 RECEIVED HEALTH CARE FROM A HEALTH CARE PROVIDER.
3 "PERSONAL REPRESENTATIVE." AN EXECUTOR OR ADMINISTRATOR OF A
4 PATIENT'S ESTATE.
5 "PRIMARY HEALTH CENTER." A COMMUNITY-BASED NONPROFIT
6 CORPORATION MEETING STANDARDS PRESCRIBED BY THE DEPARTMENT OF
7 HEALTH, WHICH PROVIDES PREVENTIVE, DIAGNOSTIC, THERAPEUTIC AND
8 BASIC EMERGENCY HEALTH CARE BY LICENSED PRACTITIONERS WHO ARE
9 EMPLOYEES OF THE CORPORATION OR UNDER CONTRACT TO THE
10 CORPORATION.
11 SECTION 104. LIABILITY OF NONQUALIFYING HEALTH CARE PROVIDERS.
12 ANY PERSON RENDERING SERVICES NORMALLY RENDERED BY A HEALTH
13 CARE PROVIDER WHO FAILS TO QUALIFY AS A HEALTH CARE PROVIDER
14 UNDER THIS ACT IS SUBJECT TO LIABILITY UNDER THE LAW WITHOUT
15 REGARD TO THE PROVISIONS OF THIS ACT.
16 SECTION 105. PROVIDER NOT A WARRANTOR OR GUARANTOR.
17 IN THE ABSENCE OF A SPECIAL CONTRACT IN WRITING, A HEALTH
18 CARE PROVIDER IS NEITHER A WARRANTOR NOR A GUARANTOR OF A CURE.
19 CHAPTER 3
20 PATIENT SAFETY
21 SECTION 301. SCOPE.
22 THIS CHAPTER RELATES TO THE REDUCTION OF MEDICAL ERRORS FOR
23 THE PURPOSE OF ENSURING PATIENT SAFETY.
24 SECTION 302. DEFINITIONS.
25 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
26 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
27 CONTEXT CLEARLY INDICATES OTHERWISE:
28 "AMBULATORY SURGICAL FACILITY." AN ENTITY DEFINED AS AN
29 AMBULATORY SURGICAL FACILITY UNDER THE ACT OF JULY 19, 1979
30 (P.L.130, NO.48), KNOWN AS THE HEALTH CARE FACILITIES ACT.
20010H1802B3320 - 72 -
1 "AUTHORITY." THE PATIENT SAFETY AUTHORITY ESTABLISHED IN
2 SECTION 303.
3 "BOARD." THE BOARD OF DIRECTORS OF THE PATIENT SAFETY
4 AUTHORITY.
5 "DEPARTMENT." THE DEPARTMENT OF HEALTH OF THE COMMONWEALTH.
6 "FUND." THE PATIENT SAFETY TRUST FUND ESTABLISHED IN SECTION
7 305.
8 "HEALTH CARE WORKER." AN EMPLOYEE, INDEPENDENT CONTRACTOR,
9 LICENSEE OR OTHER INDIVIDUAL AUTHORIZED TO PROVIDE SERVICES IN A
10 MEDICAL FACILITY.
11 "INCIDENT." AN EVENT, OCCURRENCE OR SITUATION INVOLVING THE
12 CLINICAL CARE OF A PATIENT IN A MEDICAL FACILITY WHICH COULD
13 HAVE INJURED THE PATIENT BUT DID NOT EITHER CAUSE AN
14 UNANTICIPATED INJURY OR REQUIRE THE DELIVERY OF ADDITIONAL
15 HEALTH CARE SERVICES TO THE PATIENT. THE TERM DOES NOT INCLUDE A
16 SERIOUS EVENT.
17 "INFRASTRUCTURE." STRUCTURES RELATED TO THE PHYSICAL PLANT
18 AND SERVICE DELIVERY SYSTEMS NECESSARY FOR THE PROVISION OF
19 HEALTH CARE SERVICES IN A MEDICAL FACILITY.
20 "INFRASTRUCTURE FAILURE." AN UNDESIRABLE OR UNINTENDED
21 EVENT, OCCURRENCE OR SITUATION INVOLVING THE INFRASTRUCTURE OF A
22 MEDICAL FACILITY OR THE DISCONTINUATION OR SIGNIFICANT
23 DISRUPTION OF A SERVICE WHICH COULD SERIOUSLY COMPROMISE PATIENT
24 SAFETY.
25 "LICENSEE." AN INDIVIDUAL WHO IS ALL OF THE FOLLOWING:
26 (1) LICENSED OR CERTIFIED BY THE DEPARTMENT OR THE
27 DEPARTMENT OF STATE TO PROVIDE PROFESSIONAL SERVICES IN THIS
28 COMMONWEALTH.
29 (2) EMPLOYED BY OR AUTHORIZED TO PROVIDE PROFESSIONAL
30 SERVICES IN A MEDICAL FACILITY.
20010H1802B3320 - 73 -
1 "MEDICAL FACILITY." AN AMBULATORY SURGICAL FACILITY, BIRTH
2 CENTER OR HOSPITAL.
3 "PATIENT SAFETY OFFICER." AN INDIVIDUAL DESIGNATED BY A
4 MEDICAL FACILITY UNDER SECTION 309.
5 "SERIOUS EVENT." AN EVENT, OCCURRENCE OR SITUATION INVOLVING
6 THE CLINICAL CARE OF A PATIENT IN A MEDICAL FACILITY THAT
7 RESULTS IN DEATH OR COMPROMISES PATIENT SAFETY AND RESULTS IN AN
8 UNANTICIPATED INJURY REQUIRING THE DELIVERY OF ADDITIONAL HEALTH
9 CARE SERVICES TO THE PATIENT. THE TERM DOES NOT INCLUDE AN
10 INCIDENT.
11 SECTION 303. ESTABLISHMENT OF PATIENT SAFETY AUTHORITY.
12 (A) ESTABLISHMENT.--THERE IS ESTABLISHED A BODY CORPORATE
13 AND POLITIC TO BE KNOWN AS THE PATIENT SAFETY AUTHORITY. THE
14 POWERS AND DUTIES OF THE AUTHORITY SHALL BE VESTED IN AND
15 EXERCISED BY A BOARD OF DIRECTORS.
16 (B) COMPOSITION.--THE BOARD OF THE AUTHORITY SHALL CONSIST
17 OF 11 MEMBERS, COMPOSED AND APPOINTED IN ACCORDANCE WITH THE
18 FOLLOWING:
19 (1) THE PHYSICIAN GENERAL OR A PHYSICIAN APPOINTED BY
20 THE GOVERNOR IF THERE IS NO APPOINTED PHYSICIAN GENERAL.
21 (2) FOUR RESIDENTS OF THIS COMMONWEALTH, ONE OF WHOM
22 SHALL BE APPOINTED BY THE PRESIDENT PRO TEMPORE OF THE
23 SENATE, ONE OF WHOM SHALL BE APPOINTED BY THE MINORITY LEADER
24 OF THE SENATE, ONE OF WHOM SHALL BE APPOINTED BY THE SPEAKER
25 OF THE HOUSE OF REPRESENTATIVES AND ONE OF WHOM SHALL BE
26 APPOINTED BY THE MINORITY LEADER OF THE HOUSE OF
27 REPRESENTATIVES, WHO SHALL SERVE TERMS COTERMINOUS WITH THEIR
28 RESPECTIVE APPOINTING AUTHORITIES.
29 (3) A HEALTH CARE WORKER RESIDING IN THIS COMMONWEALTH
30 WHO IS A PHYSICIAN AND IS APPOINTED BY THE GOVERNOR, WHO
20010H1802B3320 - 74 -
1 SHALL SERVE AN INITIAL TERM OF THREE YEARS.
2 (4) A HEALTH CARE WORKER RESIDING IN THIS COMMONWEALTH
3 WHO IS LICENSED BY THE DEPARTMENT OF STATE AS A NURSE AND IS
4 APPOINTED BY THE GOVERNOR, WHO SHALL SERVE AN INITIAL TERM OF
5 THREE YEARS.
6 (5) A HEALTH CARE WORKER RESIDING IN THIS COMMONWEALTH
7 WHO IS LICENSED BY THE DEPARTMENT OF STATE AS A PHARMACIST
8 AND IS APPOINTED BY THE GOVERNOR, WHO SHALL SERVE AN INITIAL
9 TERM OF TWO YEARS.
10 (6) A HEALTH CARE WORKER RESIDING IN THIS COMMONWEALTH
11 WHO IS EMPLOYED BY A HOSPITAL AND IS APPOINTED BY THE
12 GOVERNOR, WHO SHALL SERVE AN INITIAL TERM OF TWO YEARS.
13 (7) TWO RESIDENTS OF THIS COMMONWEALTH, ONE OF WHOM IS A
14 HEALTH CARE WORKER AND ONE OF WHOM IS NOT A HEALTH CARE
15 WORKER, APPOINTED BY THE GOVERNOR WHO SHALL EACH SERVE A TERM
16 OF FOUR YEARS.
17 (C) TERMS.--WITH THE EXCEPTION OF PARAGRAPHS (1) AND (2),
18 MEMBERS OF THE BOARD SHALL SERVE FOR TERMS OF FOUR YEARS AFTER
19 COMPLETION OF THE INITIAL TERMS DESIGNATED IN SUBSECTION (B) AND
20 SHALL NOT BE ELIGIBLE TO SERVE MORE THAN TWO FULL CONSECUTIVE
21 TERMS.
22 (D) QUORUM.--A MAJORITY OF THE MEMBERS OF THE BOARD SHALL
23 CONSTITUTE A QUORUM. NOTWITHSTANDING ANY OTHER PROVISION OF LAW,
24 ACTION MAY BE TAKEN BY THE BOARD AT A MEETING UPON A VOTE OF THE
25 MAJORITY OF ITS MEMBERS PRESENT IN PERSON OR THROUGH THE USE OF
26 AMPLIFIED TELEPHONIC EQUIPMENT IF AUTHORIZED BY THE BYLAWS OF
27 THE BOARD.
28 (E) MEETINGS.--THE BOARD SHALL MEET AT THE CALL OF THE
29 CHAIRPERSON OR AS MAY BE PROVIDED IN THE BYLAWS OF THE BOARD.
30 THE BOARD SHALL HOLD MEETINGS AT LEAST QUARTERLY, WHICH SHALL BE
20010H1802B3320 - 75 -
1 SUBJECT TO THE REQUIREMENTS OF 65 PA.C.S. CH. 7 (RELATING TO
2 OPEN MEETINGS). MEETINGS OF THE BOARD MAY BE HELD ANYWHERE
3 WITHIN THIS COMMONWEALTH.
4 (F) CHAIRPERSON.--THE CHAIRPERSON SHALL BE THE PERSON
5 APPOINTED UNDER SUBSECTION (B)(1).
6 (G) FORMATION.--THE AUTHORITY SHALL BE FORMED WITHIN 60 DAYS
7 OF THE EFFECTIVE DATE OF THIS SECTION.
8 SECTION 304. POWERS AND DUTIES.
9 (A) GENERAL RULE.--THE AUTHORITY SHALL DO ALL OF THE
10 FOLLOWING:
11 (1) ADOPT BYLAWS NECESSARY TO CARRY OUT THE PROVISIONS
12 OF THIS CHAPTER.
13 (2) EMPLOY STAFF AS NECESSARY TO IMPLEMENT THIS CHAPTER.
14 (3) MAKE, EXECUTE AND DELIVER CONTRACTS AND OTHER
15 INSTRUMENTS.
16 (4) APPLY FOR, SOLICIT, RECEIVE, ESTABLISH PRIORITIES
17 FOR, ALLOCATE, DISBURSE, CONTRACT FOR, ADMINISTER AND SPEND
18 FUNDS IN THE FUND AND OTHER FUNDS THAT ARE MADE AVAILABLE TO
19 THE AUTHORITY FROM ANY SOURCE CONSISTENT WITH THE PURPOSES OF
20 THIS CHAPTER.
21 (5) CONTRACT WITH A FOR-PROFIT OR REGISTERED NONPROFIT
22 ENTITY OR ENTITIES, OTHER THAN A HEALTH CARE PROVIDER, TO DO
23 THE FOLLOWING:
24 (I) COLLECT, ANALYZE AND EVALUATE DATA REGARDING
25 REPORTS OF SERIOUS EVENTS AND INCIDENTS, INCLUDING THE
26 IDENTIFICATION OF A PATTERN IN FREQUENCY OR SEVERITY AT
27 CERTAIN MEDICAL FACILITIES OR IN CERTAIN REGIONS OF THIS
28 COMMONWEALTH.
29 (II) TRANSMIT TO THE AUTHORITY RECOMMENDATIONS FOR
30 CHANGES IN HEALTH CARE PRACTICES AND PROCEDURES, WHICH
20010H1802B3320 - 76 -
1 MAY BE INSTITUTED FOR THE PURPOSE OF REDUCING THE NUMBER
2 AND SEVERITY OF SERIOUS EVENTS AND INCIDENTS.
3 (III) DIRECTLY ADVISE REPORTING MEDICAL FACILITIES
4 OF IMMEDIATE CHANGES THAT CAN BE INSTITUTED TO REDUCE
5 SERIOUS EVENTS AND INCIDENTS.
6 (IV) CONDUCT REVIEWS IN ACCORDANCE WITH SUBSECTION
7 (B).
8 (6) RECEIVE AND EVALUATE RECOMMENDATIONS MADE BY THE
9 ENTITY OR ENTITIES CONTRACTED WITH IN ACCORDANCE WITH
10 PARAGRAPH (5) AND REPORT THOSE RECOMMENDATIONS TO THE
11 DEPARTMENT, WHICH SHALL HAVE NO MORE THAN 30 DAYS TO APPROVE
12 OR DISAPPROVE THE RECOMMENDATIONS.
13 (7) AFTER CONSULTATION AND APPROVAL BY THE DEPARTMENT,
14 ISSUE RECOMMENDATIONS TO MEDICAL FACILITIES ON A FACILITY-
15 SPECIFIC OR ON A STATEWIDE BASIS REGARDING CHANGES, TRENDS
16 AND IMPROVEMENTS IN HEALTH CARE PRACTICES AND PROCEDURES FOR
17 THE PURPOSE OF REDUCING THE NUMBER AND SEVERITY OF SERIOUS
18 EVENTS AND INCIDENTS. PRIOR TO ISSUING RECOMMENDATIONS,
19 CONSIDERATION SHALL BE GIVEN TO THE FOLLOWING FACTORS THAT
20 INCLUDE: EXPECTATION OF IMPROVED QUALITY CARE, IMPLEMENTATION
21 FEASIBILITY, OTHER RELEVANT IMPLEMENTATION PRACTICES AND THE
22 COST IMPACT TO PATIENTS, PAYORS AND MEDICAL FACILITIES.
23 STATEWIDE RECOMMENDATIONS SHALL BE ISSUED TO MEDICAL
24 FACILITIES ON A CONTINUING BASIS AND SHALL BE PUBLISHED AND
25 POSTED ON THE DEPARTMENT'S AND THE AUTHORITY'S PUBLICLY
26 ACCESSIBLE WORLD WIDE WEB SITE.
27 (8) MEET WITH THE DEPARTMENT FOR PURPOSES OF
28 IMPLEMENTING THIS CHAPTER.
29 (B) ANONYMOUS REPORTS TO THE AUTHORITY.--A HEALTH CARE
30 WORKER WHO HAS COMPLIED WITH SECTION 308(A) MAY FILE AN
20010H1802B3320 - 77 -
1 ANONYMOUS REPORT REGARDING A SERIOUS EVENT WITH THE AUTHORITY.
2 UPON RECEIPT OF THE REPORT, THE AUTHORITY SHALL GIVE NOTICE TO
3 THE AFFECTED MEDICAL FACILITY THAT A REPORT HAS BEEN FILED. THE
4 AUTHORITY SHALL CONDUCT ITS OWN REVIEW OF THE REPORT, UNLESS THE
5 MEDICAL FACILITY HAS ALREADY COMMENCED AN INVESTIGATION OF THE
6 SERIOUS EVENT. THE MEDICAL FACILITY SHALL PROVIDE THE AUTHORITY
7 WITH THE RESULTS OF ITS INVESTIGATION NO LATER THAN 30 DAYS
8 AFTER RECEIVING NOTICE PURSUANT TO THIS SUBSECTION. IF THE
9 AUTHORITY IS DISSATISFIED WITH THE ADEQUACY OF THE INVESTIGATION
10 CONDUCTED BY THE MEDICAL FACILITY, THE AUTHORITY SHALL PERFORM
11 ITS OWN REVIEW OF THE SERIOUS EVENT AND MAY REFER A MEDICAL
12 FACILITY AND ANY INVOLVED LICENSEE TO THE DEPARTMENT FOR FAILURE
13 TO REPORT PURSUANT TO SECTION 313(E) AND (F).
14 (C) ANNUAL REPORT TO GENERAL ASSEMBLY.--
15 (1) THE AUTHORITY SHALL REPORT NO LATER THAN MAY 1,
16 2003, AND ANNUALLY THEREAFTER TO THE DEPARTMENT AND THE
17 GENERAL ASSEMBLY ON THE AUTHORITY'S ACTIVITIES IN THE
18 PRECEDING YEAR. THE REPORT SHALL INCLUDE:
19 (I) A SCHEDULE OF THE YEAR'S MEETINGS.
20 (II) A LIST OF CONTRACTS ENTERED INTO PURSUANT TO
21 THIS SECTION, INCLUDING THE AMOUNTS AWARDED TO EACH
22 CONTRACTOR.
23 (III) A SUMMARY OF THE FUND RECEIPTS AND
24 EXPENDITURES, INCLUDING A FINANCIAL STATEMENT AND BALANCE
25 SHEET.
26 (IV) THE NUMBER OF SERIOUS EVENTS AND INCIDENTS
27 REPORTED BY MEDICAL FACILITIES ON A GEOGRAPHICAL BASIS.
28 (V) THE INFORMATION DERIVED FROM THE DATA COLLECTED
29 INCLUDING ANY RECOGNIZED TRENDS CONCERNING PATIENT
30 SAFETY.
20010H1802B3320 - 78 -
1 (VI) THE NUMBER OF ANONYMOUS REPORTS FILED AND
2 REVIEWS CONDUCTED BY THE AUTHORITY.
3 (VII) THE NUMBER OF REFERRALS TO LICENSURE BOARDS
4 FOR FAILURE TO REPORT UNDER THIS CHAPTER.
5 (VIII) RECOMMENDATIONS FOR STATUTORY OR REGULATORY
6 CHANGES WHICH MAY HELP IMPROVE PATIENT SAFETY IN THE
7 COMMONWEALTH.
8 (2) THE REPORT SHALL BE DISTRIBUTED TO THE SECRETARY OF
9 HEALTH, THE CHAIR AND MINORITY CHAIR OF THE PUBLIC HEALTH AND
10 WELFARE COMMITTEE OF THE SENATE AND THE CHAIR AND MINORITY
11 CHAIR OF THE HEALTH AND HUMAN SERVICES COMMITTEE OF THE HOUSE
12 OF REPRESENTATIVES.
13 (3) THE ANNUAL REPORT SHALL BE MADE AVAILABLE FOR PUBLIC
14 INSPECTION AND SHALL BE POSTED ON THE AUTHORITY'S PUBLICLY
15 ACCESSIBLE WORLD WIDE WEB SITE.
16 SECTION 305. PATIENT SAFETY TRUST FUND.
17 (A) ESTABLISHMENT.--THERE IS HEREBY ESTABLISHED A SEPARATE
18 ACCOUNT IN THE STATE TREASURY TO BE KNOWN AS THE PATIENT SAFETY
19 TRUST FUND. THE FUND SHALL BE ADMINISTERED BY THE AUTHORITY. ALL
20 INTEREST EARNED FROM THE INVESTMENT OR DEPOSIT OF MONEYS
21 ACCUMULATED IN THE FUND SHALL BE DEPOSITED IN THE FUND FOR THE
22 SAME USE.
23 (B) FUNDS.--ALL MONEYS DEPOSITED INTO THE FUND SHALL BE HELD
24 IN TRUST AND SHALL NOT BE CONSIDERED GENERAL REVENUE OF THE
25 COMMONWEALTH BUT SHALL BE USED ONLY TO EFFECTUATE THE PURPOSES
26 OF THIS CHAPTER AS DETERMINED BY THE AUTHORITY.
27 (C) ASSESSMENT.--COMMENCING JULY 1, 2002, EACH MEDICAL
28 FACILITY SHALL PAY THE DEPARTMENT A SURCHARGE ON ITS LICENSING
29 FEE AS NECESSARY TO PROVIDE SUFFICIENT REVENUES TO OPERATE THE
30 AUTHORITY. THE TOTAL ASSESSMENT FOR ALL MEDICAL FACILITIES SHALL
20010H1802B3320 - 79 -
1 NOT EXCEED $5,000,000. THE DEPARTMENT SHALL TRANSFER THE TOTAL
2 ASSESSMENT AMOUNT TO THE FUND WITHIN 30 DAYS OF RECEIPT.
3 (D) BASE AMOUNT.--FOR EACH SUCCEEDING CALENDAR YEAR, THE
4 DEPARTMENT SHALL DETERMINE AND ASSESS EACH MEDICAL FACILITY ITS
5 PROPORTIONATE SHARE OF THE AUTHORITY'S BUDGET. THE TOTAL
6 ASSESSMENT AMOUNT SHALL NOT EXCEED $5,000,000 IN FISCAL YEAR
7 2002-2003 AND SHALL BE INCREASED ACCORDING TO THE CONSUMER PRICE
8 INDEX IN EACH SUCCEEDING FISCAL YEAR.
9 (E) EXPENDITURES.--MONEYS IN THE FUND SHALL BE EXPENDED BY
10 THE AUTHORITY TO IMPLEMENT THIS CHAPTER.
11 (F) DISSOLUTION.--IN THE EVENT THAT THE FUND IS DISCONTINUED
12 OR THE AUTHORITY IS DISSOLVED BY OPERATION OF LAW, ANY BALANCE
13 REMAINING IN THE FUND, AFTER DEDUCTING ADMINISTRATIVE COSTS OF
14 LIQUIDATION, SHALL BE RETURNED TO THE MEDICAL FACILITIES IN
15 PROPORTION TO THEIR FINANCIAL CONTRIBUTIONS TO THE FUND IN THE
16 PRECEDING LICENSING PERIOD.
17 (G) FAILURE TO PAY SURCHARGE.--IF AFTER 30 DAYS' NOTICE A
18 MEDICAL FACILITY FAILS TO PAY A SURCHARGE LEVIED BY THE
19 DEPARTMENT UNDER THIS CHAPTER, THE DEPARTMENT MAY ASSESS AN
20 ADMINISTRATIVE PENALTY OF $1,000 PER DAY UNTIL THE SURCHARGE IS
21 PAID.
22 SECTION 306. DEPARTMENT RESPONSIBILITIES.
23 (A) GENERAL RULE.--THE DEPARTMENT SHALL DO ALL OF THE
24 FOLLOWING:
25 (1) REVIEW AND APPROVE PATIENT SAFETY PLANS IN
26 ACCORDANCE WITH SECTION 307.
27 (2) RECEIVE REPORTS OF SERIOUS EVENTS AND INFRASTRUCTURE
28 FAILURES UNDER SECTION 313.
29 (3) INVESTIGATE SERIOUS EVENTS AND INFRASTRUCTURE
30 FAILURES.
20010H1802B3320 - 80 -
1 (4) IN CONJUNCTION WITH THE AUTHORITY, ANALYZE AND
2 EVALUATE EXISTING HEALTH CARE PROCEDURES AND APPROVE
3 RECOMMENDATIONS ISSUED BY THE AUTHORITY PURSUANT TO SECTION
4 304(A)(6) AND (7).
5 (5) MEET WITH THE AUTHORITY FOR PURPOSES OF IMPLEMENTING
6 THIS CHAPTER.
7 (B) DEPARTMENT CONSIDERATION.--THE RECOMMENDATIONS MADE TO
8 MEDICAL FACILITIES PURSUANT TO SUBSECTION (A)(4) MAY BE
9 CONSIDERED BY THE DEPARTMENT FOR LICENSURE PURPOSES UNDER THE
10 ACT OF JULY 19, 1979 (P.L.130, NO.48), KNOWN AS THE HEALTH CARE
11 FACILITIES ACT, BUT SHALL NOT BE CONSIDERED MANDATORY UNLESS
12 ADOPTED BY THE DEPARTMENT AS REGULATIONS PURSUANT TO THE ACT OF
13 JUNE 25, 1982 (P.L.633, NO.181), KNOWN AS THE REGULATORY REVIEW
14 ACT.
15 SECTION 307. PATIENT SAFETY PLANS.
16 (A) DEVELOPMENT AND COMPLIANCE.--A MEDICAL FACILITY SHALL
17 DEVELOP, IMPLEMENT AND COMPLY WITH AN INTERNAL PATIENT SAFETY
18 PLAN THAT SHALL BE ESTABLISHED FOR THE PURPOSE OF IMPROVING THE
19 HEALTH AND SAFETY OF PATIENTS. THE PLAN SHALL BE DEVELOPED IN
20 CONSULTATION WITH THE LICENSEES PROVIDING HEALTH CARE SERVICES
21 IN THE MEDICAL FACILITY.
22 (B) REQUIREMENTS.--A PATIENT SAFETY PLAN SHALL:
23 (1) DESIGNATE A PATIENT SAFETY OFFICER AS SET FORTH IN
24 SECTION 309.
25 (2) ESTABLISH A PATIENT SAFETY COMMITTEE AS SET FORTH IN
26 SECTION 310.
27 (3) ESTABLISH A SYSTEM FOR THE HEALTH CARE WORKERS OF A
28 MEDICAL FACILITY TO REPORT SERIOUS EVENTS AND INCIDENTS WHICH
29 SHALL BE ACCESSIBLE 24 HOURS A DAY, SEVEN DAYS A WEEK.
30 (4) PROHIBIT ANY RETALIATORY ACTION AGAINST A HEALTH
20010H1802B3320 - 81 -
1 CARE WORKER FOR REPORTING A SERIOUS EVENT OR INCIDENT IN
2 ACCORDANCE WITH THE ACT OF DECEMBER 12, 1986 (P.L.1559,
3 NO.169), KNOWN AS THE WHISTLEBLOWER LAW.
4 (5) PROVIDE FOR WRITTEN NOTIFICATION TO PATIENTS IN
5 ACCORDANCE WITH SECTION 308(B).
6 (C) APPROVAL.--WITHIN 60 DAYS FROM THE EFFECTIVE DATE OF
7 THIS SECTION, A MEDICAL FACILITY SHALL SUBMIT ITS PATIENT SAFETY
8 PLAN TO THE DEPARTMENT FOR APPROVAL CONSISTENT WITH THE
9 REQUIREMENTS OF THIS SECTION. UNLESS THE DEPARTMENT APPROVES OR
10 REJECTS THE PLAN WITHIN 60 DAYS OF RECEIPT, THE PLAN SHALL BE
11 DEEMED APPROVED.
12 (D) EMPLOYEE NOTIFICATION.--UPON APPROVAL OF THE PATIENT
13 SAFETY PLAN, A MEDICAL FACILITY SHALL NOTIFY ALL HEALTH CARE
14 WORKERS OF THE MEDICAL FACILITY OF THE PATIENT SAFETY PLAN.
15 COMPLIANCE WITH THE PATIENT SAFETY PLAN SHALL BE REQUIRED AS A
16 CONDITION OF EMPLOYMENT OR CREDENTIALING AT THE MEDICAL
17 FACILITY.
18 SECTION 308. REPORTING AND NOTIFICATION.
19 (A) REPORTING.--A HEALTH CARE WORKER WHO REASONABLY BELIEVES
20 THAT A SERIOUS EVENT OR INCIDENT HAS OCCURRED SHALL REPORT THE
21 SERIOUS EVENT OR INCIDENT ACCORDING TO THE PATIENT SAFETY PLAN
22 OF THE MEDICAL FACILITY, UNLESS THE HEALTH CARE WORKER KNOWS
23 THAT A REPORT HAS ALREADY BEEN MADE. THE REPORT SHALL BE MADE
24 IMMEDIATELY OR AS SOON THEREAFTER AS REASONABLY PRACTICABLE, BUT
25 IN NO EVENT LATER THAN 24 HOURS AFTER THE OCCURRENCE OR
26 DISCOVERY OF A SERIOUS EVENT OR INCIDENT.
27 (B) DUTY TO NOTIFY PATIENT.--A MEDICAL FACILITY THROUGH AN
28 APPROPRIATE DESIGNEE SHALL PROVIDE WRITTEN NOTIFICATION TO A
29 PATIENT AFFECTED BY A SERIOUS EVENT OR, WITH THE CONSENT OF THE
30 PATIENT, TO AN AVAILABLE FAMILY MEMBER OR DESIGNEE, WITHIN SEVEN
20010H1802B3320 - 82 -
1 DAYS OF THE OCCURRENCE OR DISCOVERY OF A SERIOUS EVENT. IF THE
2 PATIENT IS UNABLE TO GIVE CONSENT, THE NOTIFICATION SHALL BE
3 GIVEN TO AN ADULT MEMBER OF THE IMMEDIATE FAMILY. IF AN ADULT
4 MEMBER OF THE IMMEDIATE FAMILY CANNOT BE IDENTIFIED OR LOCATED,
5 NOTIFICATION SHALL BE GIVEN TO THE CLOSEST ADULT FAMILY MEMBER.
6 FOR UNEMANCIPATED PATIENTS WHO ARE UNDER 18 YEARS OF AGE, THE
7 PARENT OR GUARDIAN SHALL BE NOTIFIED IN ACCORDANCE WITH THIS
8 SUBSECTION. THE NOTIFICATION REQUIREMENTS OF THIS SUBSECTION
9 SHALL NOT BE SUBJECT TO THE PROVISIONS OF SECTION 311(A).
10 NOTIFICATION UNDER THIS SUBSECTION SHALL NOT CONSTITUTE AN
11 ACKNOWLEDGMENT OR ADMISSION OF LIABILITY.
12 (C) LIABILITY.--A HEALTH CARE WORKER WHO REPORTS THE
13 OCCURRENCE OF A SERIOUS EVENT OR INCIDENT IN ACCORDANCE WITH
14 SUBSECTION (A) OR (B) SHALL NOT BE SUBJECT TO ANY RETALIATORY
15 ACTION FOR REPORTING THE SERIOUS EVENT OR INCIDENT, AND SHALL
16 HAVE THE PROTECTIONS AND REMEDIES SET FORTH IN THE ACT OF
17 DECEMBER 12, 1986 (P.L.1559, NO.169), KNOWN AS THE WHISTLEBLOWER
18 LAW.
19 (D) LIMITATION.--NOTHING IN THIS SECTION SHALL LIMIT A
20 MEDICAL FACILITY'S ABILITY TO TAKE APPROPRIATE DISCIPLINARY
21 ACTION AGAINST A HEALTH CARE WORKER FOR FAILURE TO MEET DEFINED
22 PERFORMANCE EXPECTATIONS OR TO TAKE CORRECTIVE ACTION AGAINST A
23 LICENSEE FOR UNPROFESSIONAL CONDUCT, INCLUDING MAKING FALSE
24 REPORTS OR FAILURE TO REPORT SERIOUS EVENTS UNDER THIS CHAPTER.
25 SECTION 309. PATIENT SAFETY OFFICER.
26 A PATIENT SAFETY OFFICER OF A MEDICAL FACILITY SHALL DO ALL
27 OF THE FOLLOWING:
28 (1) SERVE ON THE PATIENT SAFETY COMMITTEE.
29 (2) ENSURE THE INVESTIGATION OF ALL REPORTS OF SERIOUS
30 EVENTS AND INCIDENTS.
20010H1802B3320 - 83 -
1 (3) TAKE SUCH ACTION AS IS IMMEDIATELY NECESSARY TO
2 ENSURE PATIENT SAFETY AS A RESULT OF ANY INVESTIGATION.
3 (4) REPORT TO THE PATIENT SAFETY COMMITTEE REGARDING ANY
4 ACTION TAKEN TO PROMOTE PATIENT SAFETY AS A RESULT OF
5 INVESTIGATIONS COMMENCED PURSUANT TO THIS SECTION.
6 SECTION 310. PATIENT SAFETY COMMITTEE.
7 (A) COMPOSITION.--
8 (1) A HOSPITAL'S PATIENT SAFETY COMMITTEE SHALL BE
9 COMPOSED OF THE MEDICAL FACILITY'S PATIENT SAFETY OFFICER,
10 AND AT LEAST THREE HEALTH CARE WORKERS OF THE MEDICAL
11 FACILITY AND TWO RESIDENTS OF THE COMMUNITY SERVED BY THE
12 MEDICAL FACILITY WHO ARE NOT AGENTS, EMPLOYEES OR CONTRACTORS
13 OF THE MEDICAL FACILITY. NO MORE THAN ONE MEMBER OF THE
14 PATIENT SAFETY COMMITTEE SHALL BE A MEMBER OF THE MEDICAL
15 FACILITY'S BOARD OF TRUSTEES. THE COMMITTEE SHALL INCLUDE
16 MEMBERS OF THE MEDICAL FACILITY'S MEDICAL AND NURSING STAFF.
17 THE COMMITTEE SHALL MEET AT LEAST MONTHLY.
18 (2) AN AMBULATORY SURGICAL FACILITY'S OR BIRTH CENTER'S
19 PATIENT SAFETY COMMITTEE SHALL BE COMPOSED OF THE MEDICAL
20 FACILITY'S PATIENT SAFETY OFFICER, AND AT LEAST ONE HEALTH
21 CARE WORKER OF THE MEDICAL FACILITY AND ONE RESIDENT OF THE
22 COMMUNITY SERVED BY THE AMBULATORY SURGICAL FACILITY OR BIRTH
23 CENTER WHO IS NOT AN AGENT, EMPLOYEE OR CONTRACTOR OF THE
24 AMBULATORY SURGICAL FACILITY OR BIRTH CENTER. NO MORE THAN
25 ONE MEMBER OF THE PATIENT SAFETY COMMITTEE SHALL BE A MEMBER
26 OF THE MEDICAL FACILITY'S BOARD OF GOVERNANCE. THE COMMITTEE
27 SHALL INCLUDE MEMBERS OF THE MEDICAL FACILITY'S MEDICAL AND
28 NURSING STAFF. THE COMMITTEE SHALL MEET AT LEAST QUARTERLY.
29 (B) RESPONSIBILITIES.--A PATIENT SAFETY COMMITTEE OF A
30 MEDICAL FACILITY SHALL DO ALL OF THE FOLLOWING:
20010H1802B3320 - 84 -
1 (1) RECEIVE REPORTS FROM THE PATIENT SAFETY OFFICER
2 PURSUANT TO SECTION 309.
3 (2) EVALUATE INVESTIGATIONS AND ACTIONS OF THE PATIENT
4 SAFETY OFFICER ON ALL REPORTS.
5 (3) REVIEW AND EVALUATE THE QUALITY OF PATIENT SAFETY
6 MEASURES UTILIZED BY THE MEDICAL FACILITY. A REVIEW SHALL
7 INCLUDE THE CONSIDERATION OF REPORTS MADE UNDER SECTIONS
8 304(A)(5) AND (B), 307(B)(3) AND 308(A).
9 (4) MAKE RECOMMENDATIONS TO ELIMINATE FUTURE SERIOUS
10 EVENTS AND INCIDENTS.
11 (5) REPORT TO THE ADMINISTRATIVE OFFICER AND GOVERNING
12 BODY OF THE MEDICAL FACILITY ON A QUARTERLY BASIS REGARDING
13 THE NUMBER OF SERIOUS EVENTS AND INCIDENTS AND ITS
14 RECOMMENDATIONS TO ELIMINATE FUTURE SERIOUS EVENTS AND
15 INCIDENTS.
16 SECTION 311. CONFIDENTIALITY AND COMPLIANCE.
17 (A) PREPARED MATERIALS.--ANY DOCUMENTS, MATERIALS OR
18 INFORMATION SOLELY PREPARED OR CREATED FOR THE PURPOSE OF
19 COMPLIANCE WITH SECTION 310(B) OR OF REPORTING UNDER SECTION
20 304(A)(5) OR (B), 306(A)(2) OR (3), 307(B)(3), 308(A), 309(4),
21 310(B)(5) OR 313 WHICH ARISE OUT OF MATTERS REVIEWED BY THE
22 PATIENT SAFETY COMMITTEE PURSUANT TO SECTION 310(B) OR THE
23 GOVERNING BOARD OF A MEDICAL FACILITY PURSUANT TO SECTION 310(B)
24 ARE CONFIDENTIAL AND SHALL NOT BE DISCOVERABLE OR ADMISSIBLE AS
25 EVIDENCE IN ANY CIVIL OR ADMINISTRATIVE ACTION OR PROCEEDING.
26 ANY DOCUMENTS, MATERIALS, RECORDS OR INFORMATION THAT WOULD
27 OTHERWISE BE AVAILABLE FROM ORIGINAL SOURCES SHALL NOT BE
28 CONSTRUED AS IMMUNE FROM DISCOVERY OR USE IN ANY CIVIL OR
29 ADMINISTRATIVE ACTION OR PROCEEDING MERELY BECAUSE THEY WERE
30 PRESENTED TO THE PATIENT SAFETY COMMITTEE OR GOVERNING BOARD OF
20010H1802B3320 - 85 -
1 A MEDICAL FACILITY.
2 (B) MEETINGS.--NO PERSON WHO PERFORMS RESPONSIBILITIES FOR
3 OR PARTICIPATES IN MEETINGS OF THE PATIENT SAFETY COMMITTEE OR
4 GOVERNING BOARD OF A MEDICAL FACILITY PURSUANT TO SECTION 310(B)
5 SHALL BE ALLOWED TO TESTIFY AS TO ANY MATTERS WITHIN THE
6 KNOWLEDGE GAINED BY THE PERSON'S RESPONSIBILITIES OR
7 PARTICIPATION ON THE PATIENT SAFETY COMMITTEE OR GOVERNING BOARD
8 OF A MEDICAL FACILITY PROVIDED, HOWEVER, THE PERSON SHALL BE
9 ALLOWED TO TESTIFY AS TO ANY MATTERS WITHIN THE PERSON'S
10 KNOWLEDGE WHICH WAS GAINED OUTSIDE OF THE PERSONS'S
11 RESPONSIBILITIES OR PARTICIPATION ON THE PATIENT SAFETY
12 COMMITTEE OR GOVERNING BOARD OF A MEDICAL FACILITY PURSUANT TO
13 SECTION 310(B).
14 (C) APPLICABILITY.--THE CONFIDENTIALITY PROTECTIONS SET
15 FORTH IN SUBSECTIONS (A) AND (B) SHALL ONLY APPLY TO THE
16 DOCUMENTS, MATERIALS OR INFORMATION PREPARED OR CREATED PURSUANT
17 TO THE RESPONSIBILITIES OF THE PATIENT SAFETY COMMITTEE OR
18 GOVERNING BOARD OF A MEDICAL FACILITY SET FORTH IN SECTION
19 310(B).
20 (D) RECEIVED MATERIALS.--EXCEPT AS SET FORTH IN SUBSECTION
21 (F), ANY DOCUMENTS, MATERIALS OR INFORMATION RECEIVED BY THE
22 AUTHORITY OR DEPARTMENT FROM THE MEDICAL FACILITY, HEALTH CARE
23 WORKER, PATIENT SAFETY COMMITTEE OR GOVERNING BOARD OF A MEDICAL
24 FACILITY SOLELY PREPARED OR CREATED FOR THE PURPOSE OF
25 COMPLIANCE WITH SECTION 310(B) OR OF REPORTING UNDER SECTION
26 304(A)(5) OR (B), 306(A)(2) OR (3), 307(B)(3), 308(A), 309(4),
27 310(B)(5) OR 313 SHALL NOT BE DISCOVERABLE OR ADMISSIBLE AS
28 EVIDENCE IN ANY CIVIL OR ADMINISTRATIVE ACTION OR PROCEEDING.
29 ANY RECORDS RECEIVED BY THE AUTHORITY OR DEPARTMENT FROM THE
30 MEDICAL FACILITY, HEALTH CARE WORKER, PATIENT SAFETY COMMITTEE
20010H1802B3320 - 86 -
1 OR GOVERNING BOARD OF A MEDICAL FACILITY PURSUANT TO THE
2 REQUIREMENTS OF THIS ACT SHALL NOT BE DISCOVERABLE FROM THE
3 DEPARTMENT OR THE AUTHORITY IN ANY CIVIL OR ADMINISTRATIVE
4 ACTION OR PROCEEDING. DOCUMENTS, MATERIALS, RECORDS OR
5 INFORMATION MAY BE USED BY THE AUTHORITY OR DEPARTMENT TO COMPLY
6 WITH THE REPORTING REQUIREMENTS UNDER SUBSECTION (F) AND SECTION
7 304(A)(7) OR (C) OR 306(B).
8 (E) DOCUMENT REVIEW.--
9 (1) EXCEPT AS SET FORTH IN PARAGRAPH (2), NO CURRENT OR
10 FORMER EMPLOYEE OF THE AUTHORITY, THE DEPARTMENT OR THE
11 DEPARTMENT OF STATE SHALL BE ALLOWED TO TESTIFY AS TO ANY
12 MATTERS GAINED BY REASON OF HIS OR HER REVIEW OF DOCUMENTS,
13 MATERIALS, RECORDS OR INFORMATION SUBMITTED TO THE AUTHORITY
14 BY THE MEDICAL FACILITY OR HEALTH CARE WORKER PURSUANT TO THE
15 REQUIREMENTS OF THIS ACT.
16 (2) PARAGRAPH (1) DOES NOT APPLY TO FINDINGS OR ACTIONS
17 BY THE DEPARTMENT OR THE DEPARTMENT OF STATE WHICH ARE PUBLIC
18 RECORDS.
19 (F) ACCESS.--
20 (1) THE DEPARTMENT SHALL HAVE ACCESS TO THE INFORMATION
21 UNDER SECTION 313(A) OR (C) AND MAY USE SUCH INFORMATION FOR
22 THE SOLE PURPOSE OF ANY LICENSURE OR CORRECTIVE ACTION
23 AGAINST A MEDICAL FACILITY. THIS EXEMPTION TO USE THE
24 INFORMATION RECEIVED PURSUANT TO SECTION 313(A) OR (C) SHALL
25 ONLY APPLY TO LICENSURE OR CORRECTIVE ACTIONS AND SHALL NOT
26 BE UTILIZED TO PERMIT THE DISCLOSURE OF ANY INFORMATION
27 OBTAINED UNDER SECTION 313(A) OR (C) FOR ANY OTHER PURPOSE.
28 (2) THE DEPARTMENT OF STATE SHALL HAVE ACCESS TO THE
29 INFORMATION UNDER SECTION 313(A) AND MAY USE SUCH INFORMATION
30 FOR THE SOLE PURPOSE OF ANY LICENSURE OR DISCIPLINARY ACTION
20010H1802B3320 - 87 -
1 AGAINST A HEALTH CARE WORKER. THIS EXEMPTION TO USE THE
2 INFORMATION RECEIVED PURSUANT TO SECTION 313(A) SHALL ONLY
3 APPLY TO LICENSURE OR DISCIPLINARY ACTIONS AND SHALL NOT BE
4 UTILIZED TO PERMIT THE DISCLOSURE OF ANY INFORMATION OBTAINED
5 UNDER SECTION 313(A) FOR ANY OTHER PURPOSE.
6 (G) ORIGINAL SOURCE DOCUMENT.--IN THE EVENT AN ORIGINAL
7 SOURCE DOCUMENT AS SET FORTH IN SUBSECTION (A) IS DETERMINED BY
8 A COURT OF COMPETENT JURISDICTION TO BE UNAVAILABLE FROM THE
9 HEALTH CARE WORKER OR MEDICAL FACILITY IN A CIVIL ACTION OR
10 PROCEEDING, THEN, IN THAT CIRCUMSTANCE ALONE, THE DEPARTMENT MAY
11 BE REQUIRED PURSUANT TO A COURT ORDER TO RELEASE THAT ORIGINAL
12 SOURCE DOCUMENT TO THE PARTY IDENTIFIED IN THE COURT ORDER.
13 (H) RIGHT-TO-KNOW REQUESTS.--ANY DOCUMENTS, MATERIALS OR
14 INFORMATION MADE CONFIDENTIAL BY SUBSECTION (A) SHALL NOT BE
15 SUBJECT TO REQUESTS UNDER THE ACT OF JUNE 21, 1957 (P.L.390,
16 NO.212), REFERRED TO AS THE RIGHT-TO-KNOW LAW.
17 (I) LIABILITY.--NOTWITHSTANDING ANY OTHER PROVISION OF LAW,
18 NO PERSON PROVIDING INFORMATION OR SERVICES TO THE PATIENT
19 SAFETY COMMITTEE, GOVERNING BOARD OF A MEDICAL FACILITY,
20 AUTHORITY OR DEPARTMENT SHALL BE HELD BY REASON OF HAVING
21 PROVIDED SUCH INFORMATION OR SERVICES TO HAVE VIOLATED ANY
22 CRIMINAL LAW, OR TO BE CIVILLY LIABLE UNDER ANY LAW, UNLESS SUCH
23 INFORMATION IS FALSE AND THE PERSON PROVIDING SUCH INFORMATION
24 KNEW, OR HAD REASON TO BELIEVE, THAT SUCH INFORMATION WAS FALSE
25 AND WAS MOTIVATED BY MALICE TOWARD ANY PERSON DIRECTLY AFFECTED
26 BY SUCH ACTION.
27 SECTION 312. PATIENT SAFETY DISCOUNT.
28 A MEDICAL FACILITY MAY MAKE APPLICATION TO THE COMMISSIONER
29 FOR CERTIFICATION OF ANY PROGRAM THAT IS RECOMMENDED BY THE
30 AUTHORITY THAT RESULTS IN THE REDUCTION OF SERIOUS EVENTS AT
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1 THAT FACILITY. THE COMMISSIONER, IN CONSULTATION WITH THE
2 DEPARTMENT, SHALL DEVELOP THE CRITERIA FOR SUCH CERTIFICATION.
3 UPON RECEIPT OF THE CERTIFICATION BY THE COMMISSIONER, A MEDICAL
4 FACILITY SHALL RECEIVE A DISCOUNT IN THE RATE OR RATES
5 APPLICABLE FOR MANDATED BASIC INSURANCE COVERAGE REQUIRED BY
6 LAW, WITH THE LEVEL OF SUCH DISCOUNT DETERMINED BY THE
7 COMMISSIONER. IN DETERMINING THE LEVEL OF ANY SUCH DISCOUNT, THE
8 COMMISSIONER SHALL CONSIDER WHETHER, AND THE EXTENT TO WHICH,
9 THE PROGRAM CERTIFIED UNDER THIS SECTION IS OTHERWISE COVERED
10 UNDER A PROGRAM OF RISK MANAGEMENT OFFERED BY AN INSURANCE
11 COMPANY OR EXCHANGE OR SELF-INSURANCE PLAN PROVIDING MEDICAL
12 PROFESSIONAL LIABILITY COVERAGE.
13 SECTION 313. MEDICAL FACILITY REPORTS AND NOTIFICATIONS.
14 (A) SERIOUS EVENT REPORTS.--A MEDICAL FACILITY SHALL REPORT
15 THE OCCURRENCE OF A SERIOUS EVENT TO THE DEPARTMENT AND THE
16 AUTHORITY WITHIN 24 HOURS OF THE MEDICAL FACILITY'S CONFIRMATION
17 OF THE OCCURRENCE OF THE SERIOUS EVENT. THE REPORT TO THE
18 DEPARTMENT AND THE AUTHORITY SHALL BE IN THE FORM AND MANNER
19 PRESCRIBED BY THE AUTHORITY IN CONSULTATION WITH THE DEPARTMENT
20 AND SHALL NOT INCLUDE THE NAME OF ANY PATIENT OR ANY OTHER
21 IDENTIFIABLE INDIVIDUAL INFORMATION.
22 (B) INCIDENT REPORTS.--A MEDICAL FACILITY SHALL REPORT THE
23 OCCURRENCE OF AN INCIDENT TO THE AUTHORITY IN A FORM AND MANNER
24 PRESCRIBED BY THE AUTHORITY AND SHALL NOT INCLUDE THE NAME OF
25 ANY PATIENT OR ANY OTHER IDENTIFIABLE INDIVIDUAL INFORMATION.
26 (C) INFRASTRUCTURE FAILURE REPORTS.--A MEDICAL FACILITY
27 SHALL REPORT THE OCCURRENCE OF AN INFRASTRUCTURE FAILURE TO THE
28 DEPARTMENT WITHIN 24 HOURS OF THE MEDICAL FACILITY'S
29 CONFIRMATION OF THE OCCURRENCE OR DISCOVERY OF THE
30 INFRASTRUCTURE FAILURE. THE REPORT TO THE DEPARTMENT SHALL BE IN
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1 THE FORM AND MANNER PRESCRIBED BY THE DEPARTMENT.
2 (D) EFFECT OF REPORT.--COMPLIANCE WITH THIS SECTION BY A
3 MEDICAL FACILITY SHALL SATISFY THE REPORTING REQUIREMENTS OF THE
4 ACT OF JULY 19, 1979 (P.L.130, NO.48), KNOWN AS THE HEALTH CARE
5 FACILITIES ACT.
6 (E) NOTIFICATION TO LICENSURE BOARDS.--IF A MEDICAL FACILITY
7 DISCOVERS THAT A LICENSEE PROVIDING HEALTH CARE SERVICES IN THE
8 MEDICAL FACILITY DURING A SERIOUS EVENT FAILED TO REPORT THE
9 EVENT IN ACCORDANCE WITH SECTION 308(A), THE MEDICAL FACILITY
10 SHALL NOTIFY THE LICENSEE'S LICENSING BOARD OF THE FAILURE TO
11 REPORT.
12 (F) FAILURE TO REPORT OR NOTIFY.--FAILURE TO REPORT A
13 SERIOUS EVENT OR AN INFRASTRUCTURE FAILURE AS REQUIRED BY THIS
14 SECTION OR TO DEVELOP AND COMPLY WITH THE PATIENT SAFETY PLAN IN
15 ACCORDANCE WITH SECTION 307 OR TO NOTIFY THE PATIENT IN
16 ACCORDANCE WITH SECTION 308(B) SHALL BE A VIOLATION OF THE
17 HEALTH CARE FACILITIES ACT. IN ADDITION TO ANY PENALTY WHICH MAY
18 BE IMPOSED UNDER THE HEALTH CARE FACILITIES ACT, A MEDICAL
19 FACILITY WHICH FAILS TO REPORT A SERIOUS EVENT OR AN
20 INFRASTRUCTURE FAILURE OR TO NOTIFY A LICENSURE BOARD IN
21 ACCORDANCE WITH THIS CHAPTER MAY BE SUBJECT TO AN ADMINISTRATIVE
22 PENALTY OF $1,000 PER DAY IMPOSED BY THE DEPARTMENT.
23 (G) REPORT SUBMISSION.--WITHIN 30 DAYS FOLLOWING NOTICE
24 PUBLISHED PURSUANT TO SECTION 5103, A MEDICAL FACILITY SHALL
25 BEGIN REPORTING SERIOUS EVENTS, INCIDENTS AND INFRASTRUCTURE
26 FAILURES CONSISTENT WITH THE REQUIREMENTS OF THIS SECTION.
27 SECTION 314. EXISTING REGULATIONS.
28 THE PROVISIONS OF 28 PA. CODE § 51.3(F) AND (G) (RELATING TO
29 NOTIFICATION) SHALL BE ABROGATED WITH RESPECT TO A MEDICAL
30 FACILITY UPON THE REPORTING OF A SERIOUS EVENT, INCIDENT OR
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1 INFRASTRUCTURE FAILURE PURSUANT TO SECTION 313.
2 CHAPTER 5
3 MEDICAL PROFESSIONAL LIABILITY
4 SECTION 501. SCOPE.
5 THIS CHAPTER RELATES TO MEDICAL PROFESSIONAL LIABILITY.
6 SECTION 502. DECLARATION OF POLICY.
7 THE GENERAL ASSEMBLY FINDS AND DECLARES THAT IT IS THE
8 PURPOSE OF THIS CHAPTER TO ENSURE A FAIR LEGAL PROCESS AND
9 REASONABLE COMPENSATION FOR PERSONS INJURED DUE TO MEDICAL
10 NEGLIGENCE IN THIS COMMONWEALTH. ENSURING THE FUTURE
11 AVAILABILITY OF AND ACCESS TO QUALITY HEALTH CARE IS A
12 FUNDAMENTAL RESPONSIBILITY THAT THE GENERAL ASSEMBLY MUST
13 FULFILL AS A PROMISE TO OUR CHILDREN, OUR PARENTS AND OUR
14 GRANDPARENTS.
15 SECTION 503. DEFINITIONS.
16 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
17 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
18 CONTEXT CLEARLY INDICATES OTHERWISE:
19 "COMMISSION." THE INTERBRANCH COMMISSION ON VENUE
20 ESTABLISHED IN SECTION 514.
21 "DEPARTMENT." THE INSURANCE DEPARTMENT OF THE COMMONWEALTH.
22 "INFORMED CONSENT." THE CONSENT OF A PATIENT TO THE
23 PERFORMANCE OF A PROCEDURE IN ACCORDANCE WITH SECTION 504.
24 SECTION 504. INFORMED CONSENT.
25 (A) DUTY OF PHYSICIANS.--EXCEPT IN EMERGENCIES, A PHYSICIAN
26 OWES A DUTY TO A PATIENT TO OBTAIN THE INFORMED CONSENT OF THE
27 PATIENT OR THE PATIENT'S AUTHORIZED REPRESENTATIVE PRIOR TO
28 CONDUCTING THE FOLLOWING PROCEDURES:
29 (1) PERFORMING SURGERY, INCLUDING THE RELATED
30 ADMINISTRATION OF ANESTHESIA.
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1 (2) ADMINISTERING RADIATION OR CHEMOTHERAPY.
2 (3) ADMINISTERING A BLOOD TRANSFUSION.
3 (4) INSERTING A SURGICAL DEVICE OR APPLIANCE.
4 (5) ADMINISTERING AN EXPERIMENTAL MEDICATION, USING AN
5 EXPERIMENTAL DEVICE OR USING AN APPROVED MEDICATION OR DEVICE
6 IN AN EXPERIMENTAL MANNER.
7 (B) DESCRIPTION OF PROCEDURE.--CONSENT IS INFORMED IF THE
8 PATIENT HAS BEEN GIVEN A DESCRIPTION OF A PROCEDURE SET FORTH IN
9 SUBSECTION (A) AND THE RISKS AND ALTERNATIVES THAT A REASONABLY
10 PRUDENT PATIENT WOULD REQUIRE TO MAKE AN INFORMED DECISION AS TO
11 THAT PROCEDURE. THE PHYSICIAN SHALL BE ENTITLED TO PRESENT
12 EVIDENCE OF THE DESCRIPTION OF THAT PROCEDURE AND THOSE RISKS
13 AND ALTERNATIVES THAT A PHYSICIAN ACTING IN ACCORDANCE WITH
14 ACCEPTED MEDICAL STANDARDS OF MEDICAL PRACTICE WOULD PROVIDE.
15 (C) EXPERT TESTIMONY.--EXPERT TESTIMONY IS REQUIRED TO
16 DETERMINE WHETHER THE PROCEDURE CONSTITUTED THE TYPE OF
17 PROCEDURE SET FORTH IN SUBSECTION (A) AND TO IDENTIFY THE RISKS
18 OF THAT PROCEDURE, THE ALTERNATIVES TO THAT PROCEDURE AND THE
19 RISKS OF THESE ALTERNATIVES.
20 (D) LIABILITY.--
21 (1) A PHYSICIAN IS LIABLE FOR FAILURE TO OBTAIN THE
22 INFORMED CONSENT ONLY IF THE PATIENT PROVES THAT RECEIVING
23 SUCH INFORMATION WOULD HAVE BEEN A SUBSTANTIAL FACTOR IN THE
24 PATIENT'S DECISION WHETHER TO UNDERGO A PROCEDURE SET FORTH
25 IN SUBSECTION (A).
26 (2) A PHYSICIAN MAY BE HELD LIABLE FOR FAILURE TO SEEK A
27 PATIENT'S INFORMED CONSENT IF THE PHYSICIAN KNOWINGLY
28 MISREPRESENTS TO THE PATIENT HIS OR HER PROFESSIONAL
29 CREDENTIALS, TRAINING OR EXPERIENCE.
30 SECTION 505. PUNITIVE DAMAGES.
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1 (A) AWARD.--PUNITIVE DAMAGES MAY BE AWARDED FOR CONDUCT THAT
2 IS THE RESULT OF THE HEALTH CARE PROVIDER'S WILLFUL OR WANTON
3 CONDUCT OR RECKLESS INDIFFERENCE TO THE RIGHTS OF OTHERS. IN
4 ASSESSING PUNITIVE DAMAGES, THE TRIER OF FACT CAN PROPERLY
5 CONSIDER THE CHARACTER OF THE HEALTH CARE PROVIDER'S ACT, THE
6 NATURE AND EXTENT OF THE HARM TO THE PATIENT THAT THE HEALTH
7 CARE PROVIDER CAUSED OR INTENDED TO CAUSE AND THE WEALTH OF THE
8 HEALTH CARE PROVIDER.
9 (B) GROSS NEGLIGENCE.--A SHOWING OF GROSS NEGLIGENCE IS
10 INSUFFICIENT TO SUPPORT AN AWARD OF PUNITIVE DAMAGES.
11 (C) VICARIOUS LIABILITY.--PUNITIVE DAMAGES SHALL NOT BE
12 AWARDED AGAINST A HEALTH CARE PROVIDER WHO IS ONLY VICARIOUSLY
13 LIABLE FOR THE ACTIONS OF ITS AGENT THAT CAUSED THE INJURY
14 UNLESS IT CAN BE SHOWN BY A PREPONDERANCE OF THE EVIDENCE THAT
15 THE PARTY KNEW OF AND ALLOWED THE CONDUCT BY ITS AGENT THAT
16 RESULTED IN THE AWARD OF PUNITIVE DAMAGES.
17 (D) TOTAL AMOUNT OF DAMAGES.--EXCEPT IN CASES ALLEGING
18 INTENTIONAL MISCONDUCT, PUNITIVE DAMAGES AGAINST AN INDIVIDUAL
19 PHYSICIAN SHALL NOT EXCEED 200% OF THE COMPENSATORY DAMAGES
20 AWARDED. PUNITIVE DAMAGES, WHEN AWARDED, SHALL NOT BE LESS THAN
21 $100,000 UNLESS A LOWER VERDICT AMOUNT IS RETURNED BY THE TRIER
22 OF FACT.
23 (E) ALLOCATION.--UPON THE ENTRY OF A VERDICT INCLUDING AN
24 AWARD OF PUNITIVE DAMAGES, THE PUNITIVE DAMAGES PORTION OF THE
25 AWARD SHALL BE ALLOCATED AS FOLLOWS:
26 (1) 75% SHALL BE PAID TO THE PREVAILING PARTY; AND
27 (2) 25% SHALL BE PAID TO THE MEDICAL CARE AVAILABILITY
28 AND REDUCTION OF ERROR FUND.
29 SECTION 506. AFFIDAVIT OF NONINVOLVEMENT.
30 (A) GENERAL PROVISIONS.--ANY HEALTH CARE PROVIDER NAMED AS A
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1 DEFENDANT IN A MEDICAL PROFESSIONAL LIABILITY ACTION MAY CAUSE
2 THE ACTION AGAINST THAT PROVIDER TO BE DISMISSED UPON THE FILING
3 OF AN AFFIDAVIT OF NONINVOLVEMENT WITH THE COURT. THE AFFIDAVIT
4 OF NONINVOLVEMENT SHALL SET FORTH, WITH PARTICULARITY, THE FACTS
5 WHICH DEMONSTRATE THAT THE PROVIDER WAS MISIDENTIFIED OR
6 OTHERWISE NOT INVOLVED, INDIVIDUALLY OR THROUGH ITS SERVANTS OR
7 EMPLOYEES, IN THE CARE AND TREATMENT OF THE CLAIMANT, AND WAS
8 NOT OBLIGATED, EITHER INDIVIDUALLY OR THROUGH ITS SERVANTS OR
9 EMPLOYEES, TO PROVIDE FOR THE CARE AND TREATMENT OF THE
10 CLAIMANT.
11 (B) STATUTE OF LIMITATIONS.--THE FILING OF AN AFFIDAVIT OF
12 NONINVOLVEMENT BY A HEALTH CARE PROVIDER SHALL HAVE THE EFFECT
13 OF TOLLING THE STATUTE OF LIMITATIONS AS TO THAT PROVIDER WITH
14 RESPECT TO THE CLAIM AT ISSUE AS OF THE DATE OF THE FILING OF
15 THE ORIGINAL PLEADING.
16 (C) CHALLENGE.--A CODEFENDANT OR CLAIMANT SHALL HAVE THE
17 RIGHT TO CHALLENGE AN AFFIDAVIT OF NONINVOLVEMENT BY FILING A
18 MOTION AND SUBMITTING AN AFFIDAVIT WHICH CONTRADICTS THE
19 ASSERTIONS OF NONINVOLVEMENT MADE BY THE HEALTH CARE PROVIDER IN
20 THE AFFIDAVIT OF NONINVOLVEMENT.
21 (D) FALSE OR INACCURATE FILING OR STATEMENT.--IF THE COURT
22 DETERMINES THAT A HEALTH CARE PROVIDER NAMED AS A DEFENDANT
23 FALSELY FILES OR MAKES FALSE OR INACCURATE STATEMENTS IN AN
24 AFFIDAVIT OF NONINVOLVEMENT, THE COURT, UPON MOTION OR UPON ITS
25 OWN INITIATIVE, SHALL IMMEDIATELY REINSTATE THE CLAIM AGAINST
26 THAT PROVIDER. IN ANY ACTION WHERE THE HEALTH CARE PROVIDER IS
27 FOUND BY THE COURT TO HAVE KNOWINGLY FILED A FALSE OR INACCURATE
28 AFFIDAVIT OF NONINVOLVEMENT, THE COURT SHALL IMPOSE UPON THE
29 PERSON WHO SIGNED THE AFFIDAVIT OR REPRESENTED THE PARTY, OR
30 BOTH, AN APPROPRIATE SANCTION, INCLUDING, BUT NOT LIMITED TO, AN
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1 ORDER TO PAY TO THE OTHER PARTY OR PARTIES THE AMOUNT OF THE
2 REASONABLE EXPENSES INCURRED BECAUSE OF THE FILING OF THE FALSE
3 AFFIDAVIT, INCLUDING A REASONABLE ATTORNEY FEE.
4 SECTION 507. ADVANCE PAYMENTS.
5 NO ADVANCE PAYMENT MADE BY THE HEALTH CARE PROVIDER OR THE
6 PROVIDER'S BASIC COVERAGE INSURANCE CARRIER TO OR FOR THE
7 CLAIMANT SHALL BE CONSTRUED AS AN ADMISSION OF LIABILITY FOR
8 INJURIES OR DAMAGES SUFFERED BY THE CLAIMANT. NOTWITHSTANDING
9 SECTION 508, EVIDENCE OF AN ADVANCE PAYMENT SHALL NOT BE
10 ADMISSIBLE BY A CLAIMANT IN A MEDICAL PROFESSIONAL LIABILITY
11 ACTION.
12 SECTION 508. COLLATERAL SOURCES.
13 (A) GENERAL RULE.--EXCEPT AS SET FORTH IN SUBSECTION (D), A
14 CLAIMANT IN A MEDICAL PROFESSIONAL LIABILITY ACTION IS PRECLUDED
15 FROM RECOVERING DAMAGES FOR PAST MEDICAL EXPENSES OR PAST LOST
16 EARNINGS INCURRED TO THE TIME OF TRIAL TO THE EXTENT THAT THE
17 LOSS IS COVERED BY A PRIVATE OR PUBLIC BENEFIT OR GRATUITY THAT
18 THE CLAIMANT HAS RECEIVED PRIOR TO TRIAL.
19 (B) OPTION.--THE CLAIMANT HAS THE OPTION TO INTRODUCE INTO
20 EVIDENCE AT TRIAL THE AMOUNT OF MEDICAL EXPENSES ACTUALLY
21 INCURRED, BUT THE CLAIMANT SHALL NOT BE PERMITTED TO RECOVER FOR
22 SUCH EXPENSES AS PART OF ANY VERDICT EXCEPT TO THE EXTENT THAT
23 THE CLAIMANT REMAINS LEGALLY RESPONSIBLE FOR SUCH PAYMENT.
24 (C) NO SUBROGATION.--EXCEPT AS SET FORTH IN SUBSECTION (D),
25 THERE SHALL BE NO RIGHT OF SUBROGATION OR REIMBURSEMENT FROM A
26 CLAIMANT'S TORT RECOVERY WITH RESPECT TO A PUBLIC OR PRIVATE
27 BENEFIT COVERED IN SUBSECTION (A).
28 (D) EXCEPTIONS.--THE COLLATERAL SOURCE PROVISIONS SET FORTH
29 IN SUBSECTION (A) SHALL NOT APPLY TO THE FOLLOWING:
30 (1) LIFE INSURANCE, PENSION OR PROFIT-SHARING PLANS OR
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1 OTHER DEFERRED COMPENSATION PLANS, INCLUDING AGREEMENTS
2 PERTAINING TO THE PURCHASE OR SALE OF A BUSINESS.
3 (2) SOCIAL SECURITY BENEFITS.
4 (3) CASH OR MEDICAL ASSISTANCE BENEFITS WHICH ARE
5 SUBJECT TO REPAYMENT TO THE DEPARTMENT OF PUBLIC WELFARE.
6 (4) PUBLIC BENEFITS PAID OR PAYABLE UNDER A PROGRAM
7 WHICH, UNDER FEDERAL STATUTE, PROVIDES FOR RIGHT OF
8 REIMBURSEMENT WHICH SUPERSEDES STATE LAW FOR THE AMOUNT OF
9 BENEFITS PAID FROM A VERDICT OR SETTLEMENT.
10 SECTION 509. PAYMENT OF DAMAGES.
11 (A) GENERAL RULE.--AT THE OPTION OF ANY PARTY TO A MEDICAL
12 PROFESSIONAL LIABILITY ACTION, THE TRIER OF FACT SHALL MAKE A
13 DETERMINATION WITH SEPARATE FINDINGS FOR EACH CLAIMANT
14 SPECIFYING THE AMOUNT OF ALL OF THE FOLLOWING:
15 (1) EXCEPT AS PROVIDED FOR UNDER SECTION 508, PAST
16 DAMAGES FOR:
17 (I) MEDICAL AND OTHER RELATED EXPENSES IN A LUMP
18 SUM;
19 (II) LOSS OF EARNINGS IN A LUMP SUM; AND
20 (III) NONECONOMIC LOSSES IN A LUMP SUM.
21 (2) FUTURE DAMAGES FOR:
22 (I) MEDICAL AND OTHER RELATED EXPENSES BY YEAR;
23 (II) LOSS OF EARNINGS OR EARNING CAPACITY IN A LUMP
24 SUM; AND
25 (III) NONECONOMIC LOSS IN A LUMP SUM.
26 (B) FUTURE DAMAGES.--
27 (1) EXCEPT AS SET FORTH IN PARAGRAPH (8), FUTURE DAMAGES
28 FOR MEDICAL AND OTHER RELATED EXPENSES SHALL BE PAID AS
29 PERIODIC PAYMENTS AFTER PAYMENT OF THE PROPORTIONATE SHARE OF
30 COUNSEL FEES AND COSTS BASED UPON THE PRESENT VALUE OF THE
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1 FUTURE DAMAGES AWARDED PURSUANT TO THIS SUBSECTION. THE TRIER
2 OF FACT MAY VARY THE AMOUNT OF PERIODIC PAYMENTS FOR FUTURE
3 DAMAGES AS SET FORTH IN SUBSECTION (A)(2)(I) FROM YEAR TO
4 YEAR FOR THE EXPECTED LIFE OF THE CLAIMANT TO ACCOUNT FOR
5 DIFFERENT ANNUAL EXPENDITURE REQUIREMENTS, INCLUDING THE
6 IMMEDIATE NEEDS OF THE CLAIMANT. THE TRIER OF FACT SHALL ALSO
7 PROVIDE FOR PURCHASE AND REPLACEMENT OF MEDICALLY NECESSARY
8 EQUIPMENT IN THE YEARS THAT EXPENDITURES WILL BE REQUIRED AS
9 MAY BE NECESSARY.
10 (2) THE TRIER OF FACT MAY INCORPORATE INTO ANY FUTURE
11 MEDICAL EXPENSE AWARD ADJUSTMENTS TO ACCOUNT FOR REASONABLY
12 ANTICIPATED INFLATION AND MEDICAL CARE IMPROVEMENTS AS
13 PRESENTED BY COMPETENT EVIDENCE.
14 (3) FUTURE DAMAGES AS SET FORTH IN SUBSECTION (A)(2)(I)
15 SHALL BE PAID IN THE YEARS THAT THE TRIER OF FACT FINDS THEY
16 WILL ACCRUE. UNLESS THE COURT ORDERS OR APPROVES A DIFFERENT
17 SCHEDULE FOR PAYMENT, THE ANNUAL AMOUNTS DUE MUST BE PAID IN
18 EQUAL QUARTERLY INSTALLMENTS, ROUNDED TO THE NEAREST DOLLAR.
19 EACH INSTALLMENT IS DUE AND PAYABLE ON THE FIRST DAY OF THE
20 MONTH IN WHICH IT ACCRUES.
21 (4) INTEREST DOES NOT ACCRUE ON A PERIODIC PAYMENT
22 BEFORE PAYMENT IS DUE. IF THE PAYMENT IS NOT MADE ON OR
23 BEFORE THE DUE DATE, THE LEGAL RATE OF INTEREST ACCRUES AS OF
24 THAT DATE.
25 (5) LIABILITY TO A CLAIMANT FOR PERIODIC PAYMENTS NOT
26 YET DUE FOR MEDICAL EXPENSES TERMINATES UPON THE CLAIMANT'S
27 DEATH.
28 (6) EACH PARTY LIABLE FOR ALL OR A PORTION OF THE
29 JUDGMENT SHALL PROVIDE FUNDING FOR THE AWARDED PERIODIC
30 PAYMENTS, SEPARATELY OR JOINTLY WITH ONE OR MORE OTHERS, BY
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1 MEANS OF AN ANNUITY CONTRACT, TRUST OR OTHER QUALIFIED
2 FUNDING PLAN, WHICH IS APPROVED BY THE COURT. THE
3 COMMISSIONER SHALL ANNUALLY PUBLISH A LIST OF INSURERS
4 DESIGNATED BY THE COMMISSIONER AS QUALIFIED TO PARTICIPATE IN
5 THE FUNDING OF PERIODIC PAYMENT JUDGMENTS. NO ANNUITY
6 CONTRACTOR MAY BE PLACED ON THE COMMISSIONER'S LIST OF
7 INSURERS, UNLESS THE INSURER HAS RECEIVED THE HIGHEST RATING
8 FOR SOLVENCY BY TWO INDEPENDENT FINANCIAL SERVICES WITHIN THE
9 LAST 12 MONTHS.
10 (7) IF AN INSURER DEFAULTS ON A REQUIRED PERIODIC
11 PAYMENT DUE TO INSOLVENCY, THE CLAIMANT SHALL BE ENTITLED TO
12 RECEIVE THE PAYMENT FROM THE MEDICAL CARE AVAILABILITY AND
13 REDUCTION OF ERROR FUND OR, IF THE FUND HAS CEASED OPERATIONS
14 FROM THE PENNSYLVANIA LIFE AND HEALTH INSURANCE GUARANTY
15 ASSOCIATION OR THE PROPERTY AND CASUALTY INSURANCE GUARANTY
16 ASSOCIATION, WHICHEVER IS APPLICABLE.
17 (8) FUTURE DAMAGES FOR MEDICAL AND OTHER RELATED
18 EXPENSES SHALL NOT BE AWARDED IN PERIODIC PAYMENTS IF THE
19 CLAIMANT OBJECTS AND STIPULATES THAT THE TOTAL AMOUNT OF THE
20 FUTURE DAMAGES FOR MEDICAL AND OTHER RELATED EXPENSES,
21 WITHOUT REDUCTION TO PRESENT VALUE, DOES NOT EXCEED $100,000.
22 (C) EFFECT OF FULL FUNDING.--IF FULL FUNDING OF AN AWARD
23 PURSUANT TO THIS SECTION HAS BEEN PROVIDED, THE JUDGMENT IS
24 DISCHARGED AND ANY OUTSTANDING LIENS AS A RESULT OF THE JUDGMENT
25 ARE RELEASED.
26 (D) RETAINED JURISDICTION.--THE COURT WHICH ENTERS JUDGMENT
27 SHALL RETAIN JURISDICTION TO ENFORCE THE JUDGMENT AND TO RESOLVE
28 RELATED DISPUTES.
29 SECTION 510. REDUCTION TO PRESENT VALUE.
30 FUTURE DAMAGES FOR LOSS OF EARNINGS OR EARNING CAPACITY SHALL
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1 BE REDUCED TO PRESENT VALUE BASED UPON THE RETURN THAT THE
2 CLAIMANT CAN EARN ON A REASONABLY SECURE FIXED INCOME
3 INVESTMENT. THESE DAMAGES SHALL BE PRESENTED WITH COMPETENT
4 EVIDENCE OF THE EFFECT OF PRODUCTIVITY AND INFLATION OVER TIME.
5 THE TRIER OF FACT SHALL DETERMINE THE APPLICABLE DISCOUNT RATE
6 BASED UPON COMPETENT EVIDENCE.
7 SECTION 511. PRESERVATION AND ACCURACY OF MEDICAL RECORDS.
8 (A) TIMING.--ENTRIES IN PATIENT CHARTS CONCERNING CARE
9 RENDERED SHALL BE MADE CONTEMPORANEOUSLY OR AS SOON AS
10 PRACTICABLE. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS SECTION,
11 IT SHALL BE CONSIDERED UNPROFESSIONAL CONDUCT AND A VIOLATION OF
12 THE APPLICABLE LICENSING STATUTE TO MAKE ALTERATIONS TO A
13 PATIENT'S CHART.
14 (B) CORRECTIONS AND DISPOSAL OF RECORDS.--IT SHALL NOT BE
15 CONSIDERED UNPROFESSIONAL CONDUCT OR A VIOLATION OF THE
16 APPLICABLE LICENSING STATUTE FOR A HEALTH CARE PROVIDER TO:
17 (1) CORRECT INFORMATION ON A PATIENT'S CHART, WHERE
18 INFORMATION HAS BEEN ENTERED ERRONEOUSLY, OR WHERE IT IS
19 NECESSARY TO CLARIFY ENTRIES MADE ON THE CHART, PROVIDED THAT
20 SUCH CORRECTIONS OR ADDITIONS SHALL BE CLEARLY IDENTIFIED AS
21 SUBSEQUENT ENTRIES BY A DATE AND TIME.
22 (2) ADD INFORMATION TO A PATIENT'S CHART WHERE IT WAS
23 NOT AVAILABLE AT THE TIME THE RECORD WAS FIRST CREATED,
24 PROVIDED THAT:
25 (I) SUCH ADDITIONS SHALL BE CLEARLY DATED AS
26 SUBSEQUENT ENTRIES.
27 (II) A HEALTH CARE PROVIDER MAY ADD SUPPLEMENTAL
28 INFORMATION WITHIN A REASONABLE TIME.
29 (3) ROUTINELY DISPOSE OF MEDICAL RECORDS AS PERMITTED BY
30 LAW.
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1 (C) ALTERATION OF RECORDS.--IN ANY MEDICAL PROFESSIONAL
2 LIABILITY ACTION IN WHICH THE CLAIMANT PROVES BY A PREPONDERANCE
3 OF THE EVIDENCE THAT THERE HAS BEEN AN INTENTIONAL ALTERATION OR
4 DESTRUCTION OF MEDICAL RECORDS, THE COURT, IN ITS DISCRETION,
5 MAY INSTRUCT THE JURY TO CONSIDER WHETHER SUCH INTENTIONAL
6 ALTERATION OR DESTRUCTION CONSTITUTES AN ADVERSE INFERENCE.
7 (D) LICENSURE SANCTION.--ALTERATION OR DESTRUCTION OF
8 MEDICAL RECORDS FOR THE PURPOSE OF ELIMINATING INFORMATION THAT
9 WOULD GIVE RISE TO A MEDICAL PROFESSIONAL LIABILITY ACTION ON
10 THE PART OF A HEALTH CARE PROVIDER SHALL CONSTITUTE A GROUND FOR
11 SUSPENSION. A HEALTH CARE PROVIDER WHO IS AWARE OF ALTERATION OR
12 DESTRUCTION IN VIOLATION OF THIS SECTION SHALL REPORT ANY PARTY
13 SUSPECTED OF SUCH CONDUCT TO THE APPROPRIATE LICENSURE BOARD.
14 SECTION 512. EXPERT QUALIFICATIONS.
15 (A) GENERAL RULE.--NO PERSON SHALL BE COMPETENT TO OFFER AN
16 EXPERT MEDICAL OPINION IN A MEDICAL PROFESSIONAL LIABILITY
17 ACTION AGAINST A PHYSICIAN UNLESS THAT PERSON POSSESSES
18 SUFFICIENT EDUCATION, TRAINING, KNOWLEDGE AND EXPERIENCE TO
19 PROVIDE CREDIBLE, COMPETENT TESTIMONY AND FULFILLS THE
20 ADDITIONAL QUALIFICATIONS SET FORTH IN THIS SECTION AS
21 APPLICABLE.
22 (B) MEDICAL TESTIMONY.--AN EXPERT TESTIFYING ON A MEDICAL
23 MATTER, INCLUDING THE STANDARD OF CARE, RISKS AND ALTERNATIVES,
24 CAUSATION AND THE NATURE AND EXTENT OF THE INJURY, MUST MEET THE
25 FOLLOWING QUALIFICATIONS:
26 (1) POSSESS AN UNRESTRICTED PHYSICIAN'S LICENSE TO
27 PRACTICE MEDICINE IN ANY STATE OR THE DISTRICT OF COLUMBIA.
28 (2) BE ENGAGED IN, OR RETIRED WITHIN THE PREVIOUS FIVE
29 YEARS FROM, ACTIVE CLINICAL PRACTICE OR TEACHING.
30 PROVIDED, HOWEVER, THE COURT MAY WAIVE THE REQUIREMENTS OF THIS
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1 SUBSECTION FOR AN EXPERT ON A MATTER OTHER THAN THE STANDARD OF
2 CARE IF THE COURT DETERMINES THAT THE EXPERT IS OTHERWISE
3 COMPETENT TO TESTIFY ABOUT MEDICAL OR SCIENTIFIC ISSUES BY
4 VIRTUE OF EDUCATION, TRAINING OR EXPERIENCE.
5 (C) STANDARD OF CARE.--IN ADDITION TO THE REQUIREMENTS SET
6 FORTH IN SUBSECTIONS (A) AND (B), AN EXPERT TESTIFYING AS TO A
7 PHYSICIAN'S STANDARD OF CARE ALSO MUST MEET THE FOLLOWING
8 QUALIFICATIONS:
9 (1) BE SUBSTANTIALLY FAMILIAR WITH THE APPLICABLE
10 STANDARD OF CARE FOR THE SPECIFIC CARE AT ISSUE AS OF THE
11 TIME OF THE ALLEGED BREACH OF THE STANDARD OF CARE.
12 (2) PRACTICE IN THE SAME SUBSPECIALTY AS THE DEFENDANT
13 PHYSICIAN OR IN A SUBSPECIALTY WHICH HAS A SUBSTANTIALLY
14 SIMILAR STANDARD OF CARE FOR THE SPECIFIC CARE AT ISSUE,
15 EXCEPT AS PROVIDED IN SUBSECTION (D) OR (E).
16 (3) IN THE EVENT THE DEFENDANT PHYSICIAN IS CERTIFIED BY
17 AN APPROVED BOARD, BE BOARD CERTIFIED BY THE SAME OR A
18 SIMILAR APPROVED BOARD, EXCEPT AS PROVIDED IN SUBSECTION (E).
19 (D) CARE OUTSIDE SPECIALTY.--A COURT MAY WAIVE THE SAME
20 SUBSPECIALTY REQUIREMENT FOR AN EXPERT TESTIFYING ON THE
21 STANDARD OF CARE FOR THE DIAGNOSIS OR TREATMENT OF A CONDITION
22 IF THE COURT DETERMINES THAT:
23 (1) THE EXPERT IS TRAINED IN THE DIAGNOSIS OR TREATMENT
24 OF THE CONDITION, AS APPLICABLE; AND
25 (2) THE DEFENDANT PHYSICIAN PROVIDED CARE FOR THAT
26 CONDITION AND SUCH CARE WAS NOT WITHIN THE PHYSICIAN'S
27 SPECIALTY OR COMPETENCE.
28 (E) OTHERWISE ADEQUATE TRAINING, EXPERIENCE AND KNOWLEDGE.--
29 A COURT MAY WAIVE THE SAME SPECIALTY AND BOARD CERTIFICATION
30 REQUIREMENTS FOR AN EXPERT TESTIFYING AS TO A STANDARD OF CARE
20010H1802B3320 - 101 -
1 IF THE COURT DETERMINES THAT THE EXPERT POSSESSES SUFFICIENT
2 TRAINING, EXPERIENCE AND KNOWLEDGE TO PROVIDE THE TESTIMONY AS A
3 RESULT OF ACTIVE INVOLVEMENT IN OR FULL-TIME TEACHING OF
4 MEDICINE IN THE APPLICABLE SUBSPECIALTY OR A RELATED FIELD OF
5 MEDICINE WITHIN THE PREVIOUS FIVE-YEAR TIME PERIOD.
6 SECTION 513. STATUTE OF LIMITATIONS.
7 ALL CLAIMS FOR RECOVERY PURSUANT TO THIS ACT MUST BE
8 COMMENCED WITHIN THE EXISTING APPLICABLE STATUTES OF LIMITATION.
9 SECTION 514. INTERBRANCH COMMISSION ON VENUE.
10 (A) DECLARATION OF POLICY.--THE GENERAL ASSEMBLY FURTHER
11 RECOGNIZES THAT RECENT CHANGES IN THE HEALTH CARE DELIVERY
12 SYSTEM HAVE NECESSITATED A REVAMPING OF THE CORPORATE STRUCTURE
13 FOR VARIOUS MEDICAL FACILITIES AND HOSPITALS ACROSS THIS
14 COMMONWEALTH. THIS HAS UNDULY EXPANDED THE REACH AND SCOPE OF
15 EXISTING VENUE RULES. TRAINING OF NEW PHYSICIANS IN MANY
16 GEOGRAPHIC REGIONS HAS ALSO BEEN SEVERELY RESTRICTED BY THE
17 RESULTANT EXPANSION OF VENUE APPLICABILITY RULES. THESE
18 PHYSICIANS AND HEALTH CARE INSTITUTIONS ARE ESSENTIAL TO
19 MAINTAINING THE HIGH QUALITY OF HEALTH CARE THAT OUR CITIZENS
20 HAVE COME TO EXPECT.
21 (B) ESTABLISHMENT OF INTERBRANCH COMMISSION ON VENUE.--THE
22 INTERBRANCH COMMISSION ON VENUE FOR ACTIONS RELATING TO MEDICAL
23 PROFESSIONAL LIABILITY IS ESTABLISHED AS FOLLOWS:
24 (1) THE COMMISSION SHALL CONSIST OF THE FOLLOWING
25 MEMBERS:
26 (I) THE CHIEF JUSTICE OF THE SUPREME COURT OR A
27 DESIGNEE OF THE CHIEF JUSTICE.
28 (II) THE CHAIRPERSON OF THE CIVIL PROCEDURAL RULES
29 COMMITTEE, WHO SHALL SERVE AS THE CHAIRPERSON OF THE
30 COMMISSION.
20010H1802B3320 - 102 -
1 (III) A JUDGE OF A COURT OF COMMON PLEAS APPOINTED
2 BY THE CHIEF JUSTICE.
3 (IV) THE ATTORNEY GENERAL OR A DESIGNEE OF THE
4 ATTORNEY GENERAL.
5 (V) THE GENERAL COUNSEL.
6 (VI) TWO ATTORNEYS AT LAW, APPOINTED BY THE
7 GOVERNOR.
8 (VII) FOUR INDIVIDUALS, ONE EACH APPOINTED BY THE:
9 (A) PRESIDENT PRO TEMPORE OF THE SENATE;
10 (B) MINORITY LEADER OF THE SENATE;
11 (C) SPEAKER OF THE HOUSE OF REPRESENTATIVES; AND
12 (D) MINORITY LEADER OF THE HOUSE OF
13 REPRESENTATIVES.
14 (2) THE COMMISSION HAS THE FOLLOWING FUNCTIONS:
15 (I) TO REVIEW AND ANALYZE THE ISSUE OF VENUE AS IT
16 RELATES TO MEDICAL PROFESSIONAL LIABILITY ACTIONS FILED
17 IN THIS COMMONWEALTH.
18 (II) TO REPORT, BY SEPTEMBER 1, 2002, TO THE GENERAL
19 ASSEMBLY AND THE SUPREME COURT ON THE RESULTS OF THE
20 REVIEW AND ANALYSIS. THE REPORT SHALL INCLUDE
21 RECOMMENDATIONS FOR SUCH LEGISLATIVE ACTION OR THE
22 PROMULGATION OF RULES OF COURT ON THE ISSUE OF VENUE AS
23 THE COMMISSION SHALL DETERMINE TO BE APPROPRIATE.
24 (3) THE COMMISSION SHALL EXPIRE SEPTEMBER 1, 2002.
25 CHAPTER 7
26 INSURANCE
27 SUBCHAPTER A
28 PRELIMINARY PROVISIONS
29 SECTION 701. SCOPE.
30 THIS CHAPTER RELATES TO MEDICAL PROFESSIONAL LIABILITY
20010H1802B3320 - 103 -
1 INSURANCE.
2 SECTION 702. DEFINITIONS.
3 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
4 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
5 CONTEXT CLEARLY INDICATES OTHERWISE:
6 "BASIC INSURANCE COVERAGE." THE LIMITS OF MEDICAL
7 PROFESSIONAL LIABILITY INSURANCE REQUIRED UNDER SECTION 711(D).
8 "CLAIMS MADE." MEDICAL PROFESSIONAL LIABILITY INSURANCE THAT
9 INSURES THOSE CLAIMS MADE OR REPORTED DURING A PERIOD WHICH IS
10 INSURED AND EXCLUDES COVERAGE FOR A CLAIM REPORTED SUBSEQUENT TO
11 THE PERIOD EVEN IF THE CLAIM RESULTED FROM AN OCCURRENCE DURING
12 THE PERIOD WHICH WAS INSURED.
13 "CLAIMS PERIOD." THE PERIOD FROM SEPTEMBER 1 TO THE
14 FOLLOWING AUGUST 31.
15 "DEFICIT." A JOINT UNDERWRITING ASSOCIATION LOSS WHICH
16 EXCEEDS THE SUM OF EARNED PREMIUMS COLLECTED BY THE JOINT
17 UNDERWRITING ASSOCIATION AND INVESTMENT INCOME.
18 "DEPARTMENT." THE INSURANCE DEPARTMENT OF THE COMMONWEALTH.
19 "FUND." THE MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR
20 (MCARE) FUND ESTABLISHED IN SECTION 712.
21 "FUND COVERAGE LIMITS." THE COVERAGE PROVIDED BY THE MEDICAL
22 CARE AVAILABILITY AND REDUCTION OF ERROR FUND UNDER SECTION 712.
23 "GOVERNMENT." THE GOVERNMENT OF THE UNITED STATES, ANY
24 STATE, ANY POLITICAL SUBDIVISION OF A STATE, ANY INSTRUMENTALITY
25 OF ONE OR MORE STATES, OR ANY AGENCY, SUBDIVISION, OR DEPARTMENT
26 OF ANY SUCH GOVERNMENT, INCLUDING ANY CORPORATION OR OTHER
27 ASSOCIATION ORGANIZED BY A GOVERNMENT FOR THE EXECUTION OF A
28 GOVERNMENT PROGRAM AND SUBJECT TO CONTROL BY A GOVERNMENT, OR
29 ANY CORPORATION OR AGENCY ESTABLISHED UNDER AN INTERSTATE
30 COMPACT OR INTERNATIONAL TREATY.
20010H1802B3320 - 104 -
1 "HEALTH CARE BUSINESS OR PRACTICE." THE NUMBER OF PATIENTS
2 TO WHOM HEALTH CARE SERVICES ARE RENDERED BY A HEALTH CARE
3 PROVIDER WITHIN AN ANNUAL PERIOD.
4 "HEALTH CARE PROVIDER." A PARTICIPATING HEALTH CARE PROVIDER
5 OR NONPARTICIPATING HEALTH CARE PROVIDER.
6 "JOINT UNDERWRITING ASSOCIATION." THE PENNSYLVANIA
7 PROFESSIONAL LIABILITY JOINT UNDERWRITING ASSOCIATION
8 ESTABLISHED IN SECTION 731.
9 "JOINT UNDERWRITING ASSOCIATION LOSS." THE SUM OF THE
10 ADMINISTRATIVE EXPENSES, TAXES, LOSSES, LOSS ADJUSTMENT
11 EXPENSES, UNEARNED PREMIUMS AND RESERVES, INCLUDING RESERVES FOR
12 LOSSES INCURRED AND LOSSES INCURRED BUT NOT REPORTED, OF THE
13 JOINT UNDERWRITING ASSOCIATION.
14 "LICENSURE AUTHORITY." THE STATE BOARD OF MEDICINE, THE
15 STATE BOARD OF OSTEOPATHIC MEDICINE, THE STATE BOARD OF
16 PODIATRY, THE DEPARTMENT OF PUBLIC WELFARE AND THE DEPARTMENT OF
17 HEALTH.
18 "MEDICAL PROFESSIONAL LIABILITY INSURANCE." INSURANCE
19 AGAINST LIABILITY ON THE PART OF A HEALTH CARE PROVIDER ARISING
20 OUT OF ANY TORT OR BREACH OF CONTRACT CAUSING INJURY OR DEATH
21 RESULTING FROM THE FURNISHING OF MEDICAL SERVICES WHICH WERE OR
22 SHOULD HAVE BEEN PROVIDED.
23 "NONPARTICIPATING HEALTH CARE PROVIDER." A HEALTH CARE
24 PROVIDER AS DEFINED IN SECTION 103 THAT CONDUCTS 20% OR LESS OF
25 ITS HEALTH CARE BUSINESS OR PRACTICE WITHIN THIS COMMONWEALTH.
26 "PARTICIPATING HEALTH CARE PROVIDER." A HEALTH CARE PROVIDER
27 AS DEFINED IN SECTION 103 THAT CONDUCTS MORE THAN 20% OF ITS
28 HEALTH CARE BUSINESS OR PRACTICE WITHIN THIS COMMONWEALTH OR A
29 NONPARTICIPATING HEALTH CARE PROVIDER WHO CHOOSES TO PARTICIPATE
30 IN THE FUND.
20010H1802B3320 - 105 -
1 "PREVAILING PRIMARY PREMIUM." THE SCHEDULE OF OCCURRENCE
2 RATES APPROVED BY THE COMMISSIONER FOR THE JOINT UNDERWRITING
3 ASSOCIATION.
4 SUBCHAPTER B
5 FUND
6 SECTION 711. MEDICAL PROFESSIONAL LIABILITY INSURANCE.
7 (A) REQUIREMENT.--A HEALTH CARE PROVIDER PROVIDING HEALTH
8 CARE SERVICES IN THIS COMMONWEALTH SHALL:
9 (1) PURCHASE MEDICAL PROFESSIONAL LIABILITY INSURANCE
10 FROM AN INSURER WHICH IS LICENSED OR APPROVED BY THE
11 DEPARTMENT; OR
12 (2) PROVIDE SELF-INSURANCE.
13 (B) PROOF OF INSURANCE.--A HEALTH CARE PROVIDER REQUIRED BY
14 SUBSECTION (A) TO PURCHASE MEDICAL PROFESSIONAL LIABILITY
15 INSURANCE OR PROVIDE SELF-INSURANCE SHALL SUBMIT PROOF OF
16 INSURANCE OR SELF-INSURANCE TO THE DEPARTMENT WITHIN 60 DAYS OF
17 THE POLICY BEING ISSUED.
18 (C) FAILURE TO PROVIDE PROOF OF INSURANCE.--IF A HEALTH CARE
19 PROVIDER FAILS TO SUBMIT THE PROOF OF INSURANCE OR SELF-
20 INSURANCE REQUIRED BY SUBSECTION (B), THE DEPARTMENT SHALL,
21 AFTER PROVIDING THE HEALTH CARE PROVIDER WITH NOTICE, NOTIFY THE
22 HEALTH CARE PROVIDER'S LICENSING AUTHORITY. A HEALTH CARE
23 PROVIDER'S LICENSE SHALL BE SUSPENDED OR REVOKED BY ITS
24 LICENSURE BOARD OR AGENCY IF THE HEALTH CARE PROVIDER FAILS TO
25 COMPLY WITH ANY OF THE PROVISIONS OF THIS CHAPTER.
26 (D) BASIC COVERAGE LIMITS.--A HEALTH CARE PROVIDER SHALL
27 INSURE OR SELF-INSURE MEDICAL PROFESSIONAL LIABILITY IN
28 ACCORDANCE WITH THE FOLLOWING:
29 (1) FOR POLICIES ISSUED OR RENEWED IN THE CALENDAR YEAR
30 2002, THE BASIC INSURANCE COVERAGE SHALL BE:
20010H1802B3320 - 106 -
1 (I) $500,000 PER OCCURRENCE OR CLAIM AND $1,500,000
2 PER ANNUAL AGGREGATE FOR A HEALTH CARE PROVIDER WHO
3 CONDUCTS MORE THAN 50% OF ITS HEALTH CARE BUSINESS OR
4 PRACTICE WITHIN THIS COMMONWEALTH AND THAT IS NOT A
5 HOSPITAL.
6 (II) $500,000 PER OCCURRENCE OR CLAIM AND $1,500,000
7 PER ANNUAL AGGREGATE FOR A HEALTH CARE PROVIDER WHO
8 CONDUCTS 50% OR LESS OF ITS HEALTH CARE BUSINESS OR
9 PRACTICE WITHIN THIS COMMONWEALTH.
10 (III) $500,000 PER OCCURRENCE OR CLAIM AND
11 $2,500,000 PER ANNUAL AGGREGATE FOR A HOSPITAL.
12 (2) FOR POLICIES ISSUED OR RENEWED IN THE CALENDAR YEARS
13 2003, 2004 AND 2005, THE BASIC INSURANCE COVERAGE SHALL BE:
14 (I) $500,000 PER OCCURRENCE OR CLAIM AND $1,500,000
15 PER ANNUAL AGGREGATE FOR A PARTICIPATING HEALTH CARE
16 PROVIDER THAT IS NOT A HOSPITAL.
17 (II) $1,000,000 PER OCCURRENCE OR CLAIM AND
18 $3,000,000 PER ANNUAL AGGREGATE FOR A NONPARTICIPATING
19 HEALTH CARE PROVIDER.
20 (III) $500,000 PER OCCURRENCE OR CLAIM AND
21 $2,500,000 PER ANNUAL AGGREGATE FOR A HOSPITAL.
22 (3) UNLESS THE COMMISSIONER FINDS PURSUANT TO SECTION
23 745(A) THAT ADDITIONAL BASIC INSURANCE COVERAGE CAPACITY IS
24 NOT AVAILABLE, FOR POLICIES ISSUED OR RENEWED IN CALENDAR
25 YEAR 2006, AND EACH YEAR THEREAFTER SUBJECT TO PARAGRAPH (4),
26 THE BASIC INSURANCE COVERAGE SHALL BE:
27 (I) $750,000 PER OCCURRENCE OR CLAIM AND $2,250,000
28 PER ANNUAL AGGREGATE FOR A PARTICIPATING HEALTH CARE
29 PROVIDER THAT IS NOT A HOSPITAL.
30 (II) $1,000,000 PER OCCURRENCE OR CLAIM AND
20010H1802B3320 - 107 -
1 $3,000,000 PER ANNUAL AGGREGATE FOR A NONPARTICIPATING
2 HEALTH CARE PROVIDER.
3 (III) $750,000 PER OCCURRENCE OR CLAIM AND
4 $3,750,000 PER ANNUAL AGGREGATE FOR A HOSPITAL.
5 IF THE COMMISSIONER FINDS PURSUANT TO SECTION 745(A) THAT
6 ADDITIONAL BASIC INSURANCE COVERAGE CAPACITY IS NOT
7 AVAILABLE, THE BASIC INSURANCE COVERAGE REQUIREMENTS SHALL
8 REMAIN AT THE LEVEL REQUIRED BY PARAGRAPH (2); AND THE
9 COMMISSIONER SHALL CONDUCT A STUDY EVERY TWO YEARS UNTIL THE
10 COMMISSIONER FINDS THAT ADDITIONAL BASIC INSURANCE COVERAGE
11 CAPACITY IS AVAILABLE, AT WHICH TIME THE COMMISSIONER SHALL
12 INCREASE THE REQUIRED BASIC INSURANCE COVERAGE IN ACCORDANCE
13 WITH THIS PARAGRAPH.
14 (4) UNLESS THE COMMISSIONER FINDS PURSUANT TO SECTION
15 745(B) THAT ADDITIONAL BASIC INSURANCE COVERAGE CAPACITY IS
16 NOT AVAILABLE, FOR POLICIES ISSUED OR RENEWED THREE YEARS
17 AFTER THE INCREASE IN COVERAGE LIMITS REQUIRED BY PARAGRAPH
18 (3), AND FOR EACH YEAR THEREAFTER, THE BASIC INSURANCE
19 COVERAGE SHALL BE:
20 (I) $1,000,000 PER OCCURRENCE OR CLAIM AND
21 $3,000,000 PER ANNUAL AGGREGATE FOR A PARTICIPATING
22 HEALTH CARE PROVIDER THAT IS NOT A HOSPITAL.
23 (II) $1,000,000 PER OCCURRENCE OR CLAIM AND
24 $3,000,000 PER ANNUAL AGGREGATE FOR A NONPARTICIPATING
25 HEALTH CARE PROVIDER.
26 (III) $1,000,000 PER OCCURRENCE OR CLAIM AND
27 $4,500,000 PER ANNUAL AGGREGATE FOR A HOSPITAL.
28 IF THE COMMISSIONER FINDS PURSUANT TO SECTION 745(B) THAT
29 ADDITIONAL BASIC INSURANCE COVERAGE CAPACITY IS NOT
30 AVAILABLE, THE BASIC INSURANCE COVERAGE REQUIREMENTS SHALL
20010H1802B3320 - 108 -
1 REMAIN AT THE LEVEL REQUIRED BY PARAGRAPH (3); AND THE
2 COMMISSIONER SHALL CONDUCT A STUDY EVERY TWO YEARS UNTIL THE
3 COMMISSIONER FINDS THAT ADDITIONAL BASIC INSURANCE COVERAGE
4 CAPACITY IS AVAILABLE, AT WHICH TIME THE COMMISSIONER SHALL
5 INCREASE THE REQUIRED BASIC INSURANCE COVERAGE IN ACCORDANCE
6 WITH THIS PARAGRAPH.
7 (E) FUND PARTICIPATION.--A PARTICIPATING HEALTH CARE
8 PROVIDER SHALL BE REQUIRED TO PARTICIPATE IN THE FUND.
9 (F) SELF-INSURANCE.--
10 (1) IF A HEALTH CARE PROVIDER SELF-INSURES ITS MEDICAL
11 PROFESSIONAL LIABILITY, THE HEALTH CARE PROVIDER SHALL SUBMIT
12 ITS SELF-INSURANCE PLAN, SUCH ADDITIONAL INFORMATION AS THE
13 DEPARTMENT MAY REQUIRE AND THE EXAMINATION FEE TO THE
14 DEPARTMENT FOR APPROVAL.
15 (2) THE DEPARTMENT SHALL APPROVE THE PLAN IF IT
16 DETERMINES THAT THE PLAN CONSTITUTES PROTECTION EQUIVALENT TO
17 THE INSURANCE REQUIRED OF A HEALTH CARE PROVIDER UNDER
18 SUBSECTION (D).
19 (G) BASIC INSURANCE LIABILITY.--
20 (1) AN INSURER PROVIDING MEDICAL PROFESSIONAL LIABILITY
21 INSURANCE SHALL NOT BE LIABLE FOR PAYMENT OF A CLAIM AGAINST
22 A HEALTH CARE PROVIDER FOR ANY LOSS OR DAMAGES AWARDED IN A
23 MEDICAL PROFESSIONAL LIABILITY ACTION IN EXCESS OF THE BASIC
24 INSURANCE COVERAGE REQUIRED BY SUBSECTION (D) UNLESS THE
25 HEALTH CARE PROVIDER'S MEDICAL PROFESSIONAL LIABILITY
26 INSURANCE POLICY OR SELF-INSURANCE PLAN PROVIDES FOR A HIGHER
27 LIMIT.
28 (2) IF A CLAIM EXCEEDS THE LIMITS OF A PARTICIPATING
29 HEALTH CARE PROVIDER'S BASIC INSURANCE COVERAGE OR SELF-
30 INSURANCE PLAN, THE FUND SHALL BE RESPONSIBLE FOR PAYMENT OF
20010H1802B3320 - 109 -
1 THE CLAIM AGAINST THE PARTICIPATING HEALTH CARE PROVIDER UP
2 TO THE FUND LIABILITY LIMITS.
3 (H) EXCESS INSURANCE.--
4 (1) NO INSURER PROVIDING MEDICAL PROFESSIONAL LIABILITY
5 INSURANCE WITH LIABILITY LIMITS IN EXCESS OF THE FUND'S
6 LIABILITY LIMITS TO A PARTICIPATING HEALTH CARE PROVIDER
7 SHALL BE LIABLE FOR PAYMENT OF A CLAIM AGAINST THE
8 PARTICIPATING HEALTH CARE PROVIDER FOR A LOSS OR DAMAGES IN A
9 MEDICAL PROFESSIONAL LIABILITY ACTION, EXCEPT THE LOSSES AND
10 DAMAGES IN EXCESS OF THE FUND COVERAGE LIMITS.
11 (2) NO INSURER PROVIDING MEDICAL PROFESSIONAL LIABILITY
12 INSURANCE WITH LIABILITY LIMITS IN EXCESS OF THE FUND'S
13 LIABILITY LIMITS TO A PARTICIPATING HEALTH CARE PROVIDER
14 SHALL BE LIABLE FOR ANY LOSS RESULTING FROM THE INSOLVENCY OR
15 DISSOLUTION OF THE FUND.
16 (I) GOVERNMENTAL ENTITIES.--A GOVERNMENTAL ENTITY MAY
17 SATISFY ITS OBLIGATIONS UNDER THIS CHAPTER, AS WELL AS THE
18 OBLIGATIONS OF ITS EMPLOYEES TO THE EXTENT OF THEIR EMPLOYMENT,
19 BY EITHER PURCHASING MEDICAL PROFESSIONAL LIABILITY INSURANCE OR
20 ASSUMING AN OBLIGATION AS A SELF-INSURER, AND PAYING THE
21 ASSESSMENTS UNDER THIS CHAPTER.
22 (J) EXEMPTIONS.--THE FOLLOWING PARTICIPATING HEALTH CARE
23 PROVIDERS SHALL BE EXEMPT FROM THIS CHAPTER:
24 (1) A PHYSICIAN WHO EXCLUSIVELY PRACTICES THE SPECIALTY
25 OF FORENSIC PATHOLOGY.
26 (2) A PARTICIPATING HEALTH CARE PROVIDER WHO IS A MEMBER
27 OF THE PENNSYLVANIA MILITARY FORCES WHILE IN THE PERFORMANCE
28 OF THE MEMBER'S ASSIGNED DUTY IN THE PENNSYLVANIA MILITARY
29 FORCES UNDER ORDERS.
30 (3) A RETIRED LICENSED PARTICIPATING HEALTH CARE
20010H1802B3320 - 110 -
1 PROVIDER WHO PROVIDES CARE ONLY TO THE PROVIDER OR THE
2 PROVIDER'S IMMEDIATE FAMILY MEMBERS.
3 SECTION 712. MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR
4 FUND.
5 (A) ESTABLISHMENT.--THERE IS HEREBY ESTABLISHED WITHIN THE
6 STATE TREASURY A SPECIAL FUND TO BE KNOWN AS THE MEDICAL CARE
7 AVAILABILITY AND REDUCTION OF ERROR FUND. MONEY IN THE FUND
8 SHALL BE USED TO PAY CLAIMS AGAINST PARTICIPATING HEALTH CARE
9 PROVIDERS FOR LOSSES OR DAMAGES AWARDED IN MEDICAL PROFESSIONAL
10 LIABILITY ACTIONS AGAINST THEM IN EXCESS OF THE BASIC INSURANCE
11 COVERAGE REQUIRED BY SECTION 711(D), LIABILITIES TRANSFERRED IN
12 ACCORDANCE WITH SUBSECTION (B) AND FOR THE ADMINISTRATION OF THE
13 FUND.
14 (B) TRANSFER OF ASSETS AND LIABILITIES.--
15 (1) (I) THE MONEY IN THE MEDICAL PROFESSIONAL LIABILITY
16 CATASTROPHE LOSS FUND ESTABLISHED UNDER SECTION 701(D) OF
17 THE FORMER ACT OF OCTOBER 15, 1975 (P.L.390, NO.111),
18 KNOWN AS THE HEALTH CARE SERVICES MALPRACTICE ACT, IS
19 TRANSFERRED TO THE FUND.
20 (II) THE RIGHTS OF THE MEDICAL PROFESSIONAL
21 LIABILITY CATASTROPHE LOSS FUND ESTABLISHED UNDER SECTION
22 701(D) OF THE FORMER HEALTH CARE SERVICES MALPRACTICE ACT
23 ARE TRANSFERRED TO AND ASSUMED BY THE FUND.
24 (2) THE LIABILITIES AND OBLIGATIONS OF THE MEDICAL
25 PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND ESTABLISHED
26 UNDER SECTION 701(D) OF THE FORMER HEALTH CARE SERVICES
27 MALPRACTICE ACT ARE TRANSFERRED TO AND ASSUMED BY THE FUND.
28 (C) FUND LIABILITY LIMITS.--
29 (1) FOR CALENDAR YEAR 2002, THE LIMIT OF LIABILITY OF
30 THE FUND CREATED IN SECTION 701(D) OF THE FORMER HEALTH CARE
20010H1802B3320 - 111 -
1 SERVICES MALPRACTICE ACT, FOR EACH HEALTH CARE PROVIDER THAT
2 CONDUCTS MORE THAN 50% OF ITS HEALTH CARE BUSINESS OR
3 PRACTICE WITHIN THIS COMMONWEALTH AND FOR EACH HOSPITAL SHALL
4 BE $700,000 FOR EACH OCCURRENCE AND $2,100,000 PER ANNUAL
5 AGGREGATE.
6 (2) THE LIMIT OF LIABILITY OF THE FUND FOR EACH
7 PARTICIPATING HEALTH CARE PROVIDER SHALL BE AS FOLLOWS:
8 (I) FOR CALENDAR YEAR 2003, AND EACH YEAR
9 THEREAFTER, THE LIMIT OF LIABILITY OF THE FUND SHALL BE
10 $500,000 FOR EACH OCCURRENCE AND $1,500,000 PER ANNUAL
11 AGGREGATE.
12 (II) IF THE BASIC INSURANCE COVERAGE REQUIREMENT IS
13 INCREASED IN ACCORDANCE WITH SECTION 711(D)(3) AND,
14 NOTWITHSTANDING SUBPARAGRAPH (I), FOR EACH CALENDAR YEAR
15 FOLLOWING THE INCREASE IN THE BASIC INSURANCE COVERAGE
16 REQUIREMENT, THE LIMIT OF LIABILITY OF THE FUND SHALL BE
17 $250,000 FOR EACH OCCURRENCE AND $750,000 PER ANNUAL
18 AGGREGATE.
19 (III) IF THE BASIC INSURANCE COVERAGE REQUIREMENT IS
20 INCREASED IN ACCORDANCE WITH SECTION 711(D)(4) AND,
21 NOTWITHSTANDING SUBPARAGRAPHS (I) AND (II), FOR EACH
22 CALENDAR YEAR FOLLOWING THE INCREASE IN THE BASIC
23 INSURANCE COVERAGE REQUIREMENT, THE LIMIT OF LIABILITY OF
24 THE FUND SHALL BE ZERO.
25 (D) ASSESSMENTS.--
26 (1) FOR CALENDAR YEAR 2003, AND FOR EACH YEAR
27 THEREAFTER, THE FUND SHALL BE FUNDED BY AN ASSESSMENT ON EACH
28 PARTICIPATING HEALTH CARE PROVIDER. ASSESSMENTS SHALL BE
29 LEVIED BY THE DEPARTMENT ON OR AFTER JANUARY 1 OF EACH YEAR.
30 THE ASSESSMENT SHALL BE BASED ON THE PREVAILING PRIMARY
20010H1802B3320 - 112 -
1 PREMIUM FOR EACH PARTICIPATING HEALTH CARE PROVIDER AND
2 SHALL, IN THE AGGREGATE, PRODUCE AN AMOUNT SUFFICIENT TO DO
3 ALL OF THE FOLLOWING:
4 (I) REIMBURSE THE FUND FOR THE PAYMENT OF REPORTED
5 CLAIMS WHICH BECAME FINAL DURING THE PRECEDING CLAIMS
6 PERIOD.
7 (II) PAY EXPENSES OF THE FUND INCURRED DURING THE
8 PRECEDING CLAIMS PERIOD.
9 (III) PAY PRINCIPAL AND INTEREST ON MONEYS
10 TRANSFERRED INTO THE FUND IN ACCORDANCE WITH SECTION
11 713(C).
12 (IV) PROVIDE A RESERVE THAT SHALL BE 10% OF THE SUM
13 OF SUBPARAGRAPHS (I), (II) AND (III).
14 (2) THE DEPARTMENT SHALL NOTIFY ALL BASIC INSURANCE
15 COVERAGE INSURERS AND SELF-INSURED PARTICIPATING HEALTH CARE
16 PROVIDERS OF THE ASSESSMENT BY NOVEMBER 1 FOR THE SUCCEEDING
17 CALENDAR YEAR.
18 (3) ANY APPEAL OF THE ASSESSMENT SHALL BE FILED WITH THE
19 DEPARTMENT.
20 (E) DISCOUNT ON SURCHARGES AND ASSESSMENTS.--
21 (1) FOR CALENDAR YEAR 2002, THE DEPARTMENT SHALL
22 DISCOUNT THE AGGREGATE SURCHARGE IMPOSED UNDER SECTION
23 701(E)(1) OF THE HEALTH CARE SERVICES MALPRACTICE ACT FOR THE
24 CALENDAR YEAR BY 5% OF THE AGGREGATE SURCHARGE IMPOSED UNDER
25 THE SECTION FOR CALENDAR YEAR 2001. THE DEPARTMENT SHALL
26 ISSUE A CREDIT TO A PARTICIPATING HEALTH CARE PROVIDER WHO
27 HAS PAID THE SURCHARGE IMPOSED UNDER SECTION 701(E)(1) OF THE
28 HEALTH CARE SERVICES MALPRACTICE ACT FOR CALENDAR YEAR 2002,
29 PRIOR TO THE EFFECTIVE DATE OF THIS SECTION.
30 (2) FOR CALENDAR YEARS 2003 AND 2004, THE DEPARTMENT
20010H1802B3320 - 113 -
1 SHALL DISCOUNT THE AGGREGATE ASSESSMENT IMPOSED UNDER
2 SUBSECTION (D) FOR EACH CALENDAR YEAR BY 10% OF THE AGGREGATE
3 SURCHARGE IMPOSED UNDER SECTION 701(E)(1) OF THE HEALTH CARE
4 SERVICES MALPRACTICE ACT FOR CALENDAR YEAR 2001.
5 (F) UPDATED RATES.--THE JOINT UNDERWRITING ASSOCIATION SHALL
6 FILE UPDATED RATES FOR ALL HEALTH CARE PROVIDERS WITH THE
7 COMMISSIONER BY MAY 1 OF EACH YEAR. THE DEPARTMENT SHALL REVIEW
8 AND MAY ADJUST THE PREVAILING PRIMARY PREMIUM IN LINE WITH ANY
9 APPLICABLE CHANGES WHICH HAVE BEEN APPROVED BY THE COMMISSIONER.
10 (G) ADDITIONAL ADJUSTMENTS OF THE PREVAILING PRIMARY
11 PREMIUM.--USING THE CLASS SYSTEM OF THE JOINT UNDERWRITING
12 ASSOCIATION, THE DEPARTMENT SHALL ADJUST THE PREVAILING PRIMARY
13 PREMIUM TO REDUCE THE NUMBER OF CLASSES TO NO MORE THAN EIGHT
14 FOR PURPOSES OF CALCULATING THE ASSESSMENT. THE DEPARTMENT SHALL
15 ADJUST THE APPLICABLE PREVAILING PRIMARY PREMIUM OF EACH
16 PARTICIPATING HEALTH CARE PROVIDER IN ACCORDANCE WITH THE
17 FOLLOWING:
18 (1) THE APPLICABLE PREVAILING PRIMARY PREMIUM OF A
19 PARTICIPATING HEALTH CARE PROVIDER WHICH IS NOT A HOSPITAL
20 MAY BE ADJUSTED THROUGH AN INCREASE IN THE INDIVIDUAL
21 PARTICIPATING HEALTH CARE PROVIDER'S PREVAILING PRIMARY
22 PREMIUM NOT TO EXCEED 20%. ANY ADJUSTMENT SHALL BE BASED UPON
23 THE FREQUENCY OF CLAIMS PAID BY THE FUND ON BEHALF OF THE
24 INDIVIDUAL PARTICIPATING HEALTH CARE PROVIDER DURING THE PAST
25 FIVE MOST RECENT CLAIMS PERIODS AND SHALL BE IN ACCORDANCE
26 WITH THE FOLLOWING:
27 (I) IF THREE CLAIMS HAVE BEEN PAID DURING THE PAST
28 FIVE MOST RECENT CLAIMS PERIODS BY THE FUND, A 10%
29 INCREASE SHALL BE CHARGED.
30 (II) IF FOUR OR MORE CLAIMS HAVE BEEN PAID DURING
20010H1802B3320 - 114 -
1 THE PAST FIVE MOST RECENT CLAIMS PERIODS BY THE FUND, A
2 20% INCREASE SHALL BE CHARGED.
3 (2) THE APPLICABLE PREVAILING PRIMARY PREMIUM OF A
4 PARTICIPATING HEALTH CARE PROVIDER WHICH IS NOT A HOSPITAL
5 AND WHICH HAS NOT HAD AN ADJUSTMENT UNDER PARAGRAPH (1) MAY
6 BE ADJUSTED THROUGH AN INCREASE IN THE INDIVIDUAL
7 PARTICIPATING HEALTH CARE PROVIDER'S PREVAILING PRIMARY
8 PREMIUM NOT TO EXCEED 20%. ANY ADJUSTMENT SHALL BE BASED UPON
9 THE SEVERITY OF AT LEAST TWO CLAIMS PAID BY THE FUND ON
10 BEHALF OF THE INDIVIDUAL PARTICIPATING HEALTH CARE PROVIDER
11 DURING THE PAST FIVE MOST RECENT CLAIMS PERIODS.
12 (3) THE APPLICABLE PREVAILING PRIMARY PREMIUM OF A
13 PARTICIPATING HEALTH CARE PROVIDER NOT ENGAGED IN DIRECT
14 CLINICAL PRACTICE ON A FULL-TIME BASIS MAY BE ADJUSTED
15 THROUGH A DECREASE IN THE INDIVIDUAL PARTICIPATING HEALTH
16 CARE PROVIDER'S PREVAILING PRIMARY PREMIUM NOT TO EXCEED 10%.
17 ANY ADJUSTMENT SHALL BE BASED UPON THE LOWER RISK ASSOCIATED
18 WITH THE LESS-THAN-FULL-TIME DIRECT CLINICAL PRACTICE.
19 (4) THE APPLICABLE PREVAILING PRIMARY PREMIUM OF A
20 HOSPITAL MAY BE ADJUSTED THROUGH AN INCREASE OR DECREASE IN
21 THE INDIVIDUAL HOSPITAL'S PREVAILING PRIMARY PREMIUM NOT TO
22 EXCEED 20%. ANY ADJUSTMENT SHALL BE BASED UPON THE FREQUENCY
23 AND SEVERITY OF CLAIMS PAID BY THE FUND ON BEHALF OF OTHER
24 HOSPITALS OF SIMILAR CLASS, SIZE, RISK AND KIND WITHIN THE
25 SAME DEFINED REGION DURING THE PAST FIVE MOST RECENT CLAIMS
26 PERIODS.
27 (H) SELF-INSURED HEALTH CARE PROVIDERS.--A PARTICIPATING
28 HEALTH CARE PROVIDER THAT HAS AN APPROVED SELF-INSURANCE PLAN
29 SHALL BE ASSESSED AN AMOUNT EQUAL TO THE ASSESSMENT IMPOSED ON A
30 PARTICIPATING HEALTH CARE PROVIDER OF LIKE CLASS, SIZE, RISK AND
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1 KIND AS DETERMINED BY THE DEPARTMENT.
2 (I) CHANGE IN BASIC INSURANCE COVERAGE.--IF A PARTICIPATING
3 HEALTH CARE PROVIDER CHANGES THE TERM OF ITS MEDICAL
4 PROFESSIONAL LIABILITY INSURANCE COVERAGE, THE ASSESSMENT SHALL
5 BE CALCULATED ON AN ANNUAL BASIS AND SHALL REFLECT THE
6 ASSESSMENT PERCENTAGES IN EFFECT FOR THE PERIOD OVER WHICH THE
7 POLICIES ARE IN EFFECT.
8 (J) PAYMENT OF CLAIMS.--CLAIMS WHICH BECAME FINAL DURING THE
9 PRECEDING CLAIMS PERIOD SHALL BE PAID ON OR BEFORE DECEMBER 31
10 FOLLOWING THE AUGUST 31 ON WHICH THEY BECAME FINAL.
11 (K) TERMINATION.--UPON SATISFACTION OF ALL LIABILITIES OF
12 THE FUND, THE FUND SHALL TERMINATE. ANY BALANCE REMAINING IN THE
13 FUND UPON SUCH TERMINATION SHALL BE RETURNED BY THE DEPARTMENT
14 TO THE PARTICIPATING HEALTH CARE PROVIDERS WHO PARTICIPATED IN
15 THE FUND IN PROPORTION TO THEIR ASSESSMENTS IN THE PRECEDING
16 CALENDAR YEAR.
17 (L) SOLE AND EXCLUSIVE SOURCE OF FUNDING.--EXCEPT AS
18 PROVIDED IN SUBSECTION (M), THE SURCHARGES IMPOSED UNDER SECTION
19 701(E)(1) OF THE HEALTH CARE SERVICES MALPRACTICE ACT AND
20 ASSESSMENTS ON PARTICIPATING HEALTH CARE PROVIDERS AND ANY
21 INCOME REALIZED BY INVESTMENT OR REINVESTMENT SHALL CONSTITUTE
22 THE SOLE AND EXCLUSIVE SOURCES OF FUNDING FOR THE FUND. NOTHING
23 IN THIS SUBSECTION SHALL PROHIBIT THE FUND FROM ACCEPTING
24 CONTRIBUTIONS FROM NONGOVERNMENTAL SOURCES. A CLAIM AGAINST OR A
25 LIABILITY OF THE FUND SHALL NOT BE DEEMED TO CONSTITUTE A DEBT
26 OR LIABILITY OF THE COMMONWEALTH OR A CHARGE AGAINST THE GENERAL
27 FUND.
28 (M) SUPPLEMENTAL FUNDING.--NOTWITHSTANDING THE PROVISIONS OF
29 75 PA.C.S. § 6506(B) (RELATING TO SURCHARGE) TO THE CONTRARY,
30 BEGINNING JANUARY 1, 2004, AND FOR A PERIOD OF NINE CALENDAR
20010H1802B3320 - 116 -
1 YEARS THEREAFTER, ALL SURCHARGES LEVIED AND COLLECTED UNDER 75
2 PA.C.S. § 6506(A) BY ANY DIVISION OF THE UNIFIED JUDICIAL SYSTEM
3 SHALL BE REMITTED TO THE COMMONWEALTH FOR DEPOSIT IN THE MEDICAL
4 CARE AVAILABILITY AND RESTRICTION OF ERROR FUND. BEGINNING
5 JANUARY 1, 2014, AND EACH YEAR THEREAFTER, THE SURCHARGES LEVIED
6 AND COLLECTED UNDER 75 PA.C.S. § 6506(A) SHALL BE DEPOSITED INTO
7 THE GENERAL FUND.
8 (N) WAIVER OF RIGHT TO CONSENT TO SETTLEMENT.--A
9 PARTICIPATING HEALTH CARE PROVIDER MAY MAINTAIN THE RIGHT TO
10 CONSENT TO A SETTLEMENT IN A BASIC INSURANCE COVERAGE POLICY FOR
11 MEDICAL PROFESSIONAL LIABILITY INSURANCE UPON THE PAYMENT OF AN
12 ADDITIONAL PREMIUM AMOUNT.
13 SECTION 713. ADMINISTRATION OF FUND.
14 (A) GENERAL RULE.--THE FUND SHALL BE ADMINISTERED BY THE
15 DEPARTMENT. THE DEPARTMENT SHALL CONTRACT WITH AN ENTITY OR
16 ENTITIES FOR THE ADMINISTRATION OF CLAIMS AGAINST THE FUND IN
17 ACCORDANCE WITH 62 PA.C.S. (RELATING TO PROCUREMENT) AND, TO THE
18 FULLEST EXTENT PRACTICABLE, THE DEPARTMENT SHALL CONTRACT WITH
19 ENTITIES THAT:
20 (1) ARE NOT WRITING, UNDERWRITING OR BROKERING MEDICAL
21 PROFESSIONAL LIABILITY INSURANCE FOR PARTICIPATING HEALTH
22 CARE PROVIDERS, HOWEVER, THE DEPARTMENT MAY CONTRACT WITH A
23 SUBSIDIARY OR AFFILIATE OF ANY WRITER, UNDERWRITER OR BROKER
24 OF MEDICAL PROFESSIONAL LIABILITY INSURANCE.
25 (2) ARE NOT TRADE ORGANIZATIONS OR ASSOCIATIONS
26 REPRESENTING THE INTERESTS OF PARTICIPATING HEALTH CARE
27 PROVIDERS IN THIS COMMONWEALTH.
28 (3) HAVE DEMONSTRABLE KNOWLEDGE OF AND EXPERIENCE IN THE
29 HANDLING AND ADJUSTING OF PROFESSIONAL LIABILITY OR OTHER
30 CATASTROPHIC CLAIMS.
20010H1802B3320 - 117 -
1 (4) HAVE DEVELOPED, INSTITUTED AND UTILIZED BEST
2 PRACTICE STANDARDS AND SYSTEMS FOR THE HANDLING AND ADJUSTING
3 OF PROFESSIONAL LIABILITY OR OTHER CATASTROPHIC CLAIMS.
4 (5) HAVE DEMONSTRABLE KNOWLEDGE OF AND EXPERIENCE WITH
5 THE PROFESSIONAL LIABILITY MARKETPLACE AND THE JUDICIAL
6 SYSTEMS OF THIS COMMONWEALTH.
7 (B) REINSURANCE.--THE DEPARTMENT MAY PURCHASE, ON BEHALF OF
8 AND IN THE NAME OF THE FUND, AS MUCH INSURANCE OR REINSURANCE AS
9 IS NECESSARY TO PRESERVE THE FUND OR RETIRE THE LIABILITIES OF
10 THE FUND.
11 (C) TRANSFERS.--THE GOVERNOR MAY TRANSFER TO THE FUND FROM
12 THE CATASTROPHIC LOSS BENEFITS CONTINUATION FUND, OR SUCH OTHER
13 FUNDS AS MAY BE APPROPRIATE, SUCH MONEY AS IS NECESSARY IN ORDER
14 TO PAY THE LIABILITIES OF THE FUND UNTIL SUFFICIENT REVENUES ARE
15 REALIZED BY THE FUND. ANY TRANSFER MADE UNDER THIS SUBSECTION
16 SHALL BE REPAID PURSUANT TO SECTION 2 OF THE ACT OF AUGUST 22,
17 1961 (P.L.1049, NO.479), ENTITLED "AN ACT AUTHORIZING THE STATE
18 TREASURER UNDER CERTAIN CONDITIONS TO TRANSFER SUMS OF MONEY
19 BETWEEN THE GENERAL FUND AND CERTAIN FUNDS AND SUBSEQUENT
20 TRANSFERS OF EQUAL SUMS BETWEEN SUCH FUNDS, AND MAKING
21 APPROPRIATIONS NECESSARY TO EFFECT SUCH TRANSFERS."
22 (D) CONFIDENTIALITY.--INFORMATION PROVIDED TO THE DEPARTMENT
23 OR MAINTAINED BY THE DEPARTMENT REGARDING A CLAIM OR ADJUSTMENTS
24 TO AN INDIVIDUAL PARTICIPATING HEALTH CARE PROVIDER'S ASSESSMENT
25 SHALL BE CONFIDENTIAL, NOTWITHSTANDING THE ACT OF JUNE 21, 1957
26 (P.L.390, NO.212), REFERRED TO AS THE RIGHT-TO-KNOW LAW, OR 65
27 PA.C.S. CH. 7 (RELATING TO OPEN MEETINGS).
28 SECTION 714. MEDICAL PROFESSIONAL LIABILITY CLAIMS.
29 (A) NOTIFICATION.--A BASIC COVERAGE INSURER OR SELF-INSURED
30 PARTICIPATING HEALTH CARE PROVIDER SHALL PROMPTLY NOTIFY THE
20010H1802B3320 - 118 -
1 DEPARTMENT IN WRITING OF ANY MEDICAL PROFESSIONAL LIABILITY
2 CLAIM.
3 (B) FAILURE TO NOTIFY.--IF A BASIC COVERAGE INSURER OR SELF-
4 INSURED PARTICIPATING HEALTH CARE PROVIDER FAILS TO NOTIFY THE
5 DEPARTMENT AS REQUIRED UNDER SUBSECTION (A) AND THE DEPARTMENT
6 HAS BEEN PREJUDICED BY THE FAILURE OF NOTICE, THE INSURER OR
7 PROVIDER SHALL BE SOLELY RESPONSIBLE FOR THE PAYMENT OF THE
8 ENTIRE AWARD OR VERDICT THAT RESULTS FROM THE MEDICAL
9 PROFESSIONAL LIABILITY CLAIM.
10 (C) DEFENSE.--A BASIC COVERAGE INSURER OR SELF-INSURED
11 PARTICIPATING HEALTH CARE PROVIDER SHALL PROVIDE A DEFENSE TO A
12 MEDICAL PROFESSIONAL LIABILITY CLAIM, INCLUDING A DEFENSE OF ANY
13 POTENTIAL LIABILITY OF THE FUND, EXCEPT AS PROVIDED FOR IN
14 SECTION 715. THE DEPARTMENT MAY JOIN IN THE DEFENSE AND BE
15 REPRESENTED BY COUNSEL.
16 (D) RESPONSIBILITIES.--IN ACCORDANCE WITH SECTION 713, THE
17 DEPARTMENT MAY DEFEND, LITIGATE, SETTLE OR COMPROMISE ANY
18 MEDICAL PROFESSIONAL LIABILITY CLAIM PAYABLE BY THE FUND.
19 (E) RELEASES.--IN THE EVENT THAT A BASIC COVERAGE INSURER OR
20 SELF-INSURED PARTICIPATING HEALTH CARE PROVIDER ENTERS INTO A
21 SETTLEMENT WITH A CLAIMANT TO THE FULL EXTENT OF ITS LIABILITY
22 AS PROVIDED IN THIS CHAPTER, IT MAY OBTAIN A RELEASE FROM THE
23 CLAIMANT TO THE EXTENT OF ITS PAYMENT, WHICH PAYMENT SHALL HAVE
24 NO EFFECT UPON ANY CLAIM AGAINST THE FUND OR ITS DUTY TO
25 CONTINUE THE DEFENSE OF THE CLAIM.
26 (F) ADJUSTMENT.--THE DEPARTMENT MAY ADJUST CLAIMS.
27 (G) MEDIATION.--UPON THE REQUEST OF A PARTY TO A MEDICAL
28 PROFESSIONAL LIABILITY CLAIM WITHIN THE FUND COVERAGE LIMITS,
29 THE DEPARTMENT MAY PROVIDE FOR A MEDIATOR IN INSTANCES WHERE
30 MULTIPLE CARRIERS DISAGREE ON THE DISPOSITION OR SETTLEMENT OF A
20010H1802B3320 - 119 -
1 CASE. UPON THE CONSENT OF ALL PARTIES, THE MEDIATION SHALL BE
2 BINDING. PROCEEDINGS CONDUCTED AND INFORMATION PROVIDED IN
3 ACCORDANCE WITH THIS SECTION SHALL BE CONFIDENTIAL AND SHALL NOT
4 BE CONSIDERED PUBLIC INFORMATION SUBJECT TO DISCLOSURE UNDER THE
5 ACT OF JUNE 21, 1957 (P.L.390, NO.212), REFERRED TO AS THE
6 RIGHT-TO-KNOW LAW OR 65 PA.C.S. CH. 7 (RELATING TO OPEN
7 MEETINGS).
8 (H) DELAY DAMAGES AND POSTJUDGMENT INTEREST.--DELAY DAMAGES
9 AND POSTJUDGMENT INTEREST APPLICABLE TO THE FUND'S LIABILITY ON
10 A MEDICAL PROFESSIONAL LIABILITY CLAIM SHALL BE PAID BY THE FUND
11 AND SHALL NOT BE CHARGED AGAINST THE PARTICIPATING HEALTH CARE
12 PROVIDER'S ANNUAL AGGREGATE LIMITS. THE BASIC COVERAGE INSURER
13 OR SELF-INSURED PARTICIPATING HEALTH CARE PROVIDER SHALL BE
14 RESPONSIBLE FOR ITS PROPORTIONATE SHARE OF DELAY DAMAGES AND
15 POSTJUDGMENT INTEREST.
16 SECTION 715. EXTENDED CLAIMS.
17 (A) GENERAL RULE.--IF A MEDICAL PROFESSIONAL LIABILITY CLAIM
18 AGAINST A HEALTH CARE PROVIDER WHO WAS REQUIRED TO PARTICIPATE
19 IN THE MEDICAL PROFESSIONAL LIABILITY CATASTROPHE LOSS FUND
20 UNDER SECTION 701(D) OF THE ACT OF OCTOBER 15, 1975 (P.L.390,
21 NO.111), KNOWN AS THE HEALTH CARE SERVICES MALPRACTICE ACT, IS
22 MADE MORE THAN FOUR YEARS AFTER THE BREACH OF CONTRACT OR TORT
23 OCCURRED AND IF THE CLAIM IS FILED WITHIN THE APPLICABLE STATUTE
24 OF LIMITATIONS, THE CLAIM SHALL BE DEFENDED BY THE DEPARTMENT IF
25 THE DEPARTMENT RECEIVED A WRITTEN REQUEST FOR INDEMNITY AND
26 DEFENSE WITHIN 180 DAYS OF THE DATE ON WHICH NOTICE OF THE CLAIM
27 IS FIRST GIVEN TO THE PARTICIPATING HEALTH CARE PROVIDER OR ITS
28 INSURER. WHERE MULTIPLE TREATMENTS OR CONSULTATIONS TOOK PLACE
29 LESS THAN FOUR YEARS BEFORE THE DATE ON WHICH THE HEALTH CARE
30 PROVIDER OR ITS INSURER RECEIVED NOTICE OF THE CLAIM, THE CLAIM
20010H1802B3320 - 120 -
1 SHALL BE DEEMED, FOR PURPOSES OF THIS SECTION, TO HAVE OCCURRED
2 LESS THAN FOUR YEARS PRIOR TO THE DATE OF NOTICE AND SHALL BE
3 DEFENDED BY THE INSURER IN ACCORDANCE WITH THIS CHAPTER.
4 (B) PAYMENT.--IF A HEALTH CARE PROVIDER IS FOUND LIABLE FOR
5 A CLAIM DEFENDED BY THE DEPARTMENT IN ACCORDANCE WITH SUBSECTION
6 (A), THE CLAIM SHALL BE PAID BY THE FUND. THE LIMIT OF LIABILITY
7 OF THE FUND FOR A CLAIM DEFENDED BY THE DEPARTMENT UNDER
8 SUBSECTION (A) SHALL BE $1,000,000 PER OCCURRENCE.
9 (C) CONCEALMENT.--IF A CLAIM IS DEFENDED BY THE DEPARTMENT
10 UNDER SUBSECTION (A) OR PAID UNDER SUBSECTION (B), AND THE CLAIM
11 IS MADE AFTER FOUR YEARS BECAUSE OF THE WILLFUL CONCEALMENT BY
12 THE HEALTH CARE PROVIDER OR ITS INSURER, THE FUND SHALL HAVE THE
13 RIGHT TO FULL INDEMNITY INCLUDING THE DEPARTMENT'S DEFENSE COSTS
14 FROM THE HEALTH CARE PROVIDER OR ITS INSURER.
15 (D) EXTENDED COVERAGE REQUIRED.--NOTWITHSTANDING SUBSECTIONS
16 (A), (B) AND (C), ALL MEDICAL PROFESSIONAL LIABILITY INSURANCE
17 POLICIES ISSUED ON OR AFTER JANUARY 1, 2006, SHALL PROVIDE
18 INDEMNITY AND DEFENSE FOR CLAIMS ASSERTED AGAINST A HEALTH CARE
19 PROVIDER FOR A BREACH OF CONTRACT OR TORT WHICH OCCURS FOUR OR
20 MORE YEARS AFTER THE BREACH OF CONTRACT OR TORT OCCURRED AND
21 AFTER DECEMBER 31, 2005.
22 SECTION 716. PODIATRIST LIABILITY.
23 WITHIN TWO YEARS OF THE EFFECTIVE DATE OF THIS CHAPTER, THE
24 DEPARTMENT SHALL CALCULATE THE AMOUNT NECESSARY TO ARRANGE FOR
25 THE SEPARATE RETIREMENT OF THE FUND'S LIABILITIES ASSOCIATED
26 WITH PODIATRISTS. ANY ARRANGEMENT SHALL BE ON TERMS AND
27 CONDITIONS PROPORTIONATE TO THE INDIVIDUAL LIABILITY OF THE
28 CLASS OF HEALTH CARE PROVIDER. THE ARRANGEMENT MAY RESULT IN
29 ASSESSMENTS FOR PODIATRISTS DIFFERENT FROM THE ASSESSMENTS FOR
30 OTHER HEALTH CARE PROVIDERS. UPON SATISFACTION OF THE
20010H1802B3320 - 121 -
1 ARRANGEMENT, PODIATRISTS SHALL NOT BE REQUIRED TO CONTRIBUTE TO
2 OR BE ENTITLED TO PARTICIPATE IN THE FUND. IN CASES WHERE THE
3 CLASS REJECTS AN ARRANGEMENT, THE DEPARTMENT SHALL PRESENT TO
4 THE PROVIDER CLASS NEW TERM ARRANGEMENTS AT LEAST ONCE IN EVERY
5 TWO-YEAR PERIOD. ALL COSTS AND EXPENSES ASSOCIATED WITH THE
6 COMPLETION AND IMPLEMENTATION OF THE ARRANGEMENT SHALL BE PAID
7 BY PODIATRISTS AND MAY BE CHARGED IN THE FORM OF AN ADDITION TO
8 THE ASSESSMENT.
9 SUBCHAPTER C
10 JOINT UNDERWRITING ASSOCIATION
11 SECTION 731. JOINT UNDERWRITING ASSOCIATION.
12 (A) ESTABLISHMENT.--THERE IS ESTABLISHED A NONPROFIT JOINT
13 UNDERWRITING ASSOCIATION TO BE KNOWN AS THE PENNSYLVANIA
14 PROFESSIONAL LIABILITY JOINT UNDERWRITING ASSOCIATION. THE JOINT
15 UNDERWRITING ASSOCIATION SHALL CONSIST OF ALL INSURERS
16 AUTHORIZED TO WRITE INSURANCE IN ACCORDANCE WITH SECTION
17 202(C)(4) AND (11) OF THE ACT OF MAY 17, 1921 (P.L.682, NO.284),
18 KNOWN AS THE INSURANCE COMPANY LAW OF 1921, AND SHALL BE
19 SUPERVISED BY THE DEPARTMENT. THE POWERS AND DUTIES OF THE JOINT
20 UNDERWRITING ASSOCIATION SHALL BE VESTED IN AND EXERCISED BY A
21 BOARD OF DIRECTORS.
22 (B) DUTIES.--THE JOINT UNDERWRITING ASSOCIATION SHALL DO ALL
23 OF THE FOLLOWING:
24 (1) SUBMIT A PLAN OF OPERATION TO THE COMMISSIONER FOR
25 APPROVAL.
26 (2) SUBMIT RATES AND ANY RATE MODIFICATION TO THE
27 DEPARTMENT FOR APPROVAL IN ACCORDANCE WITH THE ACT OF JUNE
28 11, 1947 (P.L.538, NO.246), KNOWN AS THE CASUALTY AND SURETY
29 RATE REGULATORY ACT.
30 (3) OFFER MEDICAL PROFESSIONAL LIABILITY INSURANCE TO
20010H1802B3320 - 122 -
1 HEALTH CARE PROVIDERS IN ACCORDANCE WITH SECTION 732.
2 (4) FILE WITH THE DEPARTMENT THE INFORMATION REQUIRED IN
3 SECTION 712.
4 (C) LIABILITIES.--A CLAIM AGAINST OR A LIABILITY OF THE
5 JOINT UNDERWRITING ASSOCIATION SHALL NOT BE DEEMED TO CONSTITUTE
6 A DEBT OR LIABILITY OF THE COMMONWEALTH OR A CHARGE AGAINST THE
7 GENERAL FUND.
8 SECTION 732. MEDICAL PROFESSIONAL LIABILITY INSURANCE.
9 (A) INSURANCE.--THE JOINT UNDERWRITING ASSOCIATION SHALL
10 OFFER MEDICAL PROFESSIONAL LIABILITY INSURANCE TO HEALTH CARE
11 PROVIDERS AND PROFESSIONAL CORPORATIONS, PROFESSIONAL
12 ASSOCIATIONS AND PARTNERSHIPS WHICH ARE ENTIRELY OWNED BY HEALTH
13 CARE PROVIDERS WHO CANNOT CONVENIENTLY OBTAIN MEDICAL
14 PROFESSIONAL LIABILITY INSURANCE THROUGH ORDINARY METHODS AT
15 RATES NOT IN EXCESS OF THOSE APPLICABLE TO SIMILARLY SITUATED
16 HEALTH CARE PROVIDERS, PROFESSIONAL CORPORATIONS, PROFESSIONAL
17 ASSOCIATIONS OR PARTNERSHIPS.
18 (B) REQUIREMENTS.--THE JOINT UNDERWRITING ASSOCIATION SHALL
19 ENSURE THAT THE MEDICAL PROFESSIONAL LIABILITY INSURANCE IT
20 OFFERS DOES ALL OF THE FOLLOWING:
21 (1) IS CONVENIENTLY AND EXPEDITIOUSLY AVAILABLE TO ALL
22 HEALTH CARE PROVIDERS REQUIRED TO BE INSURED UNDER SECTION
23 711.
24 (2) IS SUBJECT ONLY TO THE PAYMENT OR PROVISIONS FOR
25 PAYMENT OF THE PREMIUM.
26 (3) PROVIDES REASONABLE MEANS FOR THE HEALTH CARE
27 PROVIDERS IT INSURES TO TRANSFER TO THE ORDINARY INSURANCE
28 MARKET.
29 (4) PROVIDES SUFFICIENT COVERAGE FOR A HEALTH CARE
30 PROVIDER TO SATISFY ITS INSURANCE REQUIREMENTS UNDER SECTION
20010H1802B3320 - 123 -
1 711 ON REASONABLE AND NOT UNFAIRLY DISCRIMINATORY TERMS.
2 (5) PERMITS A HEALTH CARE PROVIDER TO FINANCE ITS
3 PREMIUM OR ALLOWS INSTALLMENT PAYMENT OF PREMIUMS SUBJECT TO
4 CUSTOMARY TERMS AND CONDITIONS.
5 SECTION 733. DEFICIT.
6 (A) FILING.--IN THE EVENT THE JOINT UNDERWRITING ASSOCIATION
7 EXPERIENCES A DEFICIT IN ANY CALENDAR YEAR, THE BOARD OF
8 DIRECTORS SHALL FILE WITH THE COMMISSIONER THE DEFICIT.
9 (B) APPROVAL.--WITHIN 30 DAYS OF RECEIPT OF THE FILING, THE
10 COMMISSIONER SHALL APPROVE OR DENY THE FILING. IF APPROVED, THE
11 JOINT UNDERWRITING ASSOCIATION IS AUTHORIZED TO BORROW FUNDS
12 SUFFICIENT TO SATISFY THE DEFICIT.
13 (C) RATE FILING.--WITHIN 30 DAYS OF RECEIVING APPROVAL OF
14 ITS FILING IN ACCORDANCE WITH SUBSECTION (B), THE JOINT
15 UNDERWRITING ASSOCIATION SHALL FILE A RATE FILING WITH THE
16 DEPARTMENT. THE COMMISSIONER SHALL APPROVE THE FILING IF THE
17 PREMIUMS GENERATE SUFFICIENT INCOME FOR THE JOINT UNDERWRITING
18 ASSOCIATION TO AVOID A DEFICIT DURING THE FOLLOWING 12 MONTHS
19 AND TO REPAY PRINCIPAL AND INTEREST ON THE MONEY BORROWED IN
20 ACCORDANCE WITH SUBSECTION (B).
21 SUBCHAPTER D
22 REGULATION OF MEDICAL PROFESSIONAL
23 LIABILITY INSURANCE
24 SECTION 741. APPROVAL.
25 IN ORDER FOR AN INSURER TO ISSUE A POLICY OF MEDICAL
26 PROFESSIONAL LIABILITY INSURANCE TO A HEALTH CARE PROVIDER OR TO
27 A PROFESSIONAL CORPORATION, PROFESSIONAL ASSOCIATION OR
28 PARTNERSHIP WHICH IS ENTIRELY OWNED BY HEALTH CARE PROVIDERS,
29 THE INSURER MUST BE AUTHORIZED TO WRITE MEDICAL PROFESSIONAL
30 LIABILITY INSURANCE IN ACCORDANCE WITH THE ACT OF MAY 17, 1921
20010H1802B3320 - 124 -
1 (P.L.682, NO.284), KNOWN AS THE INSURANCE COMPANY LAW OF 1921.
2 SECTION 742. APPROVAL OF POLICIES ON "CLAIMS MADE" BASIS.
3 THE COMMISSIONER SHALL NOT APPROVE A MEDICAL PROFESSIONAL
4 LIABILITY INSURANCE POLICY WRITTEN ON A "CLAIMS MADE" BASIS BY
5 ANY INSURER DOING BUSINESS IN THIS COMMONWEALTH UNLESS THE
6 INSURER SHALL GUARANTEE TO THE COMMISSIONER THE CONTINUED
7 AVAILABILITY OF SUITABLE LIABILITY PROTECTION FOR A HEALTH CARE
8 PROVIDER SUBSEQUENT TO THE DISCONTINUANCE OF PROFESSIONAL
9 PRACTICE BY THE HEALTH CARE PROVIDER OR THE TERMINATION OF THE
10 INSURANCE POLICY BY THE INSURER OR THE HEALTH CARE PROVIDER FOR
11 SO LONG AS THERE IS A REASONABLE PROBABILITY OF A CLAIM FOR
12 INJURY FOR WHICH THE HEALTH CARE PROVIDER MAY BE HELD LIABLE.
13 SECTION 743. REPORTS TO COMMISSIONER AND CLAIMS INFORMATION.
14 (A) DUTY TO REPORT.--BY OCTOBER 15 OF EACH YEAR, BASIC
15 INSURANCE COVERAGE INSURERS AND SELF-INSURED PARTICIPATING
16 HEALTH CARE PROVIDERS SHALL REPORT TO THE DEPARTMENT THE CLAIMS
17 INFORMATION SPECIFIED IN SUBSECTION (B).
18 (B) DEPARTMENT REPORT.--SIXTY DAYS AFTER THE END OF EACH
19 CALENDAR YEAR, THE DEPARTMENT SHALL PREPARE A REPORT. THE REPORT
20 SHALL CONTAIN THE TOTAL AMOUNT OF CLAIMS PAID AND EXPENSES
21 INCURRED DURING THE PRECEDING CALENDAR YEAR, THE TOTAL AMOUNT OF
22 RESERVE SET ASIDE FOR FUTURE CLAIMS, THE DATE AND PLACE IN WHICH
23 EACH CLAIM AROSE, THE AMOUNTS PAID, IF ANY, AND THE DISPOSITION
24 OF EACH CLAIM, JUDGMENT OF COURT, SETTLEMENT OR OTHERWISE. FOR
25 FINAL CLAIMS AT THE END OF ANY CALENDAR YEAR, THE REPORT SHALL
26 INCLUDE DETAILS BY BASIC INSURANCE COVERAGE INSURERS AND SELF-
27 INSURED PARTICIPATING HEALTH CARE PROVIDERS OF THE AMOUNT OF
28 ASSESSMENT COLLECTED, THE NUMBER OF REIMBURSEMENTS PAID AND THE
29 AMOUNT OF REIMBURSEMENTS PAID.
30 (C) SUBMISSION OF REPORT.--A COPY OF THE REPORT PREPARED
20010H1802B3320 - 125 -
1 PURSUANT TO THIS SECTION SHALL BE SUBMITTED TO THE CHAIRMAN AND
2 MINORITY CHAIRMAN OF THE BANKING AND INSURANCE COMMITTEE OF THE
3 SENATE AND THE CHAIRMAN AND MINORITY CHAIRMAN OF THE INSURANCE
4 COMMITTEE OF THE HOUSE OF REPRESENTATIVES.
5 SECTION 744. PROFESSIONAL CORPORATIONS, PROFESSIONAL
6 ASSOCIATIONS AND PARTNERSHIPS.
7 A PROFESSIONAL CORPORATION, PROFESSIONAL ASSOCIATION OR
8 PARTNERSHIP WHICH IS ENTIRELY OWNED BY HEALTH CARE PROVIDERS AND
9 WHICH ELECTS TO PURCHASE BASIC INSURANCE COVERAGE IN ACCORDANCE
10 WITH SECTION 711 FROM THE JOINT UNDERWRITING ASSOCIATION OR FROM
11 AN INSURER LICENSED OR APPROVED BY THE DEPARTMENT SHALL BE
12 REQUIRED TO PARTICIPATE IN THE FUND AND, UPON PAYMENT OF THE
13 ASSESSMENT REQUIRED BY SECTION 712, BE ENTITLED TO COVERAGE FROM
14 THE FUND.
15 SECTION 745. ACTUARIAL DATA.
16 (A) INITIAL STUDY.--THE FOLLOWING SHALL APPLY:
17 (1) NO LATER THAN APRIL 1, 2005, EACH INSURER PROVIDING
18 MEDICAL PROFESSIONAL LIABILITY INSURANCE IN THIS COMMONWEALTH
19 SHALL FILE LOSS DATA AS REQUIRED BY THE COMMISSIONER. FOR
20 FAILURE TO COMPLY, THE COMMISSIONER SHALL IMPOSE AN
21 ADMINISTRATIVE PENALTY OF $1,000 FOR EVERY DAY THAT THIS DATA
22 IS NOT PROVIDED IN ACCORDANCE WITH THIS PARAGRAPH.
23 (2) BY JULY 1, 2005, THE COMMISSIONER SHALL CONDUCT A
24 STUDY REGARDING THE AVAILABILITY OF ADDITIONAL BASIC
25 INSURANCE COVERAGE CAPACITY. THE STUDY SHALL INCLUDE AN
26 ESTIMATE OF THE TOTAL CHANGE IN MEDICAL PROFESSIONAL
27 LIABILITY INSURANCE LOSS-COST RESULTING FROM IMPLEMENTATION
28 OF THIS ACT PREPARED BY AN INDEPENDENT ACTUARY. THE FEE FOR
29 THE INDEPENDENT ACTUARY SHALL BE BORNE BY THE FUND. IN
30 DEVELOPING THE ESTIMATE, THE INDEPENDENT ACTUARY SHALL
20010H1802B3320 - 126 -
1 CONSIDER ALL OF THE FOLLOWING:
2 (I) THE MOST RECENT ACCIDENT YEAR AND RATEMAKING
3 DATA AVAILABLE.
4 (II) ANY OTHER RELEVANT FACTORS WITHIN OR OUTSIDE
5 THIS COMMONWEALTH IN ACCORDANCE WITH SOUND ACTUARIAL
6 PRINCIPLES.
7 (B) ADDITIONAL STUDY.--THE FOLLOWING SHALL APPLY:
8 (1) THREE YEARS FOLLOWING THE INCREASE OF THE BASIC
9 INSURANCE COVERAGE REQUIREMENT IN ACCORDANCE WITH SECTION
10 711(D)(3), EACH INSURER PROVIDING MEDICAL PROFESSIONAL
11 LIABILITY INSURANCE IN THIS COMMONWEALTH SHALL FILE LOSS DATA
12 WITH THE COMMISSIONER UPON REQUEST. FOR FAILURE TO COMPLY,
13 THE COMMISSIONER SHALL IMPOSE AN ADMINISTRATIVE PENALTY OF
14 $1,000 FOR EVERY DAY THAT THIS DATA IS NOT PROVIDED IN
15 ACCORDANCE WITH THIS PARAGRAPH.
16 (2) THREE MONTHS FOLLOWING THE REQUEST MADE UNDER
17 PARAGRAPH (1), THE COMMISSIONER SHALL CONDUCT A STUDY
18 REGARDING THE AVAILABILITY OF ADDITIONAL BASIC INSURANCE
19 COVERAGE CAPACITY. THE STUDY SHALL INCLUDE AN ESTIMATE OF THE
20 TOTAL CHANGE IN MEDICAL PROFESSIONAL LIABILITY INSURANCE
21 LOSS-COST RESULTING FROM IMPLEMENTATION OF THIS ACT PREPARED
22 BY AN INDEPENDENT ACTUARY. THE FEE FOR THE INDEPENDENT
23 ACTUARY SHALL BE BORNE BY THE FUND. IN DEVELOPING THE
24 ESTIMATE, THE INDEPENDENT ACTUARY SHALL CONSIDER ALL OF THE
25 FOLLOWING:
26 (I) THE MOST RECENT ACCIDENT YEAR AND RATEMAKING
27 DATA AVAILABLE.
28 (II) ANY OTHER RELEVANT FACTORS WITHIN OR OUTSIDE
29 THIS COMMONWEALTH IN ACCORDANCE WITH SOUND ACTUARIAL
30 PRINCIPLES.
20010H1802B3320 - 127 -
1 SECTION 746. MANDATORY REPORTING.
2 (A) GENERAL PROVISIONS.--EACH MEDICAL PROFESSIONAL LIABILITY
3 INSURER AND EACH SELF-INSURED HEALTH CARE PROVIDER, INCLUDING
4 THE FUND ESTABLISHED BY THIS CHAPTER, WHICH MAKES PAYMENT IN
5 SETTLEMENT, OR IN PARTIAL SETTLEMENT OF, OR IN SATISFACTION OF A
6 JUDGMENT IN A MEDICAL PROFESSIONAL LIABILITY ACTION OR CLAIM
7 SHALL PROVIDE TO THE APPROPRIATE LICENSURE BOARD A TRUE AND
8 CORRECT COPY OF THE REPORT REQUIRED TO BE FILED WITH THE FEDERAL
9 GOVERNMENT BY SECTION 421 OF THE HEALTH CARE QUALITY IMPROVEMENT
10 ACT OF 1986 (PUBLIC LAW 99-660, 42 U.S.C. § 11131). THE COPY OF
11 THE REPORT REQUIRED BY THIS SECTION SHALL BE FILED
12 SIMULTANEOUSLY WITH THE REPORT REQUIRED BY SECTION 421 OF THE
13 HEALTH CARE QUALITY IMPROVEMENT ACT OF 1986. THE DEPARTMENT
14 SHALL MONITOR AND ENFORCE COMPLIANCE WITH THIS SECTION. THE
15 BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS AND THE
16 LICENSURE BOARDS SHALL HAVE ACCESS TO INFORMATION PERTAINING TO
17 COMPLIANCE.
18 (B) IMMUNITY.--A MEDICAL PROFESSIONAL LIABILITY INSURER OR
19 PERSON WHO REPORTS UNDER SUBSECTION (A) IN GOOD FAITH AND
20 WITHOUT MALICE SHALL BE IMMUNE FROM CIVIL OR CRIMINAL LIABILITY
21 ARISING FROM THE REPORT.
22 (C) PUBLIC INFORMATION.--INFORMATION RECEIVED UNDER THIS
23 SECTION SHALL NOT BE CONSIDERED PUBLIC INFORMATION FOR THE
24 PURPOSES OF THE ACT OF JUNE 21, 1957 (P.L.390, NO.212), REFERRED
25 TO AS THE RIGHT-TO-KNOW LAW OR 65 PA.C.S. CH. 7 (RELATING TO
26 OPEN MEETINGS), UNTIL USED IN A FORMAL DISCIPLINARY PROCEEDING.
27 SECTION 747. CANCELLATION OF INSURANCE POLICY.
28 A TERMINATION OF A MEDICAL PROFESSIONAL LIABILITY INSURANCE
29 POLICY BY CANCELLATION, EXCEPT FOR SUSPENSION OR REVOCATION OF
30 THE INSURED'S LICENSE OR FOR REASON OF NONPAYMENT OF PREMIUM, IS
20010H1802B3320 - 128 -
1 NOT EFFECTIVE AGAINST THE INSURED, UNLESS NOTICE OF CANCELLATION
2 WAS GIVEN WITHIN 60 DAYS AFTER THE ISSUANCE OF THE POLICY TO THE
3 INSURED AND NO CANCELLATION SHALL TAKE EFFECT UNLESS A WRITTEN
4 NOTICE STATING THE REASONS FOR THE CANCELLATION AND THE DATE AND
5 TIME UPON WHICH THE TERMINATION BECOMES EFFECTIVE HAS BEEN
6 RECEIVED BY THE COMMISSIONER. MAILING OF THE NOTICE TO THE
7 COMMISSIONER AT THE COMMISSIONER'S PRINCIPAL OFFICE ADDRESS
8 SHALL CONSTITUTE NOTICE TO THE COMMISSIONER.
9 SECTION 748. REGULATIONS.
10 THE COMMISSIONER MAY PROMULGATE REGULATIONS TO IMPLEMENT AND
11 ADMINISTER THIS CHAPTER.
12 CHAPTER 9
13 ADMINISTRATIVE PROVISIONS
14 SECTION 901. SCOPE.
15 (A) GENERAL RULE.--
16 (1) EXCEPT AS SET FORTH IN SUBSECTION (B), THIS CHAPTER
17 IS IN PARI MATERIA WITH:
18 (I) THE ACT OF OCTOBER 5, 1978 (P.L.1109, NO.261),
19 KNOWN AS THE OSTEOPATHIC MEDICAL PRACTICE ACT; AND
20 (II) THE ACT OF DECEMBER 20, 1985 (P.L.457, NO.112),
21 KNOWN AS THE MEDICAL PRACTICE ACT OF 1985.
22 (2) NO DUPLICATION OF PROCEDURE IS REQUIRED BETWEEN THIS
23 CHAPTER AND EITHER:
24 (I) THE OSTEOPATHIC MEDICAL PRACTICE ACT; OR
25 (II) THE MEDICAL PRACTICE ACT OF 1985.
26 (B) CONFLICT.--THIS CHAPTER SHALL PREVAIL IF THERE IS A
27 CONFLICT BETWEEN THIS CHAPTER AND EITHER:
28 (1) THE OSTEOPATHIC MEDICAL PRACTICE ACT; OR
29 (2) THE MEDICAL PRACTICE ACT OF 1985.
30 SECTION 902. DEFINITIONS.
20010H1802B3320 - 129 -
1 THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS CHAPTER
2 SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS SECTION UNLESS THE
3 CONTEXT CLEARLY INDICATES OTHERWISE:
4 "LICENSURE BOARD." EITHER OR BOTH OF THE FOLLOWING,
5 DEPENDING ON THE LICENSURE OF THE AFFECTED INDIVIDUAL:
6 (1) THE STATE BOARD OF MEDICINE.
7 (2) THE STATE BOARD OF OSTEOPATHIC MEDICINE.
8 "PHYSICIAN." AN INDIVIDUAL LICENSED UNDER THE LAWS OF THIS
9 COMMONWEALTH TO ENGAGE IN THE PRACTICE OF:
10 (1) MEDICINE AND SURGERY IN ALL ITS BRANCHES, WITHIN THE
11 SCOPE OF THE ACT OF DECEMBER 20, 1985 (P.L.457, NO.112),
12 KNOWN AS THE MEDICAL PRACTICE ACT OF 1985; OR
13 (2) OSTEOPATHIC MEDICINE AND SURGERY, WITHIN THE SCOPE
14 OF THE ACT OF OCTOBER 5, 1978 (P.L.1109, NO.261), KNOWN AS
15 THE OSTEOPATHIC MEDICAL PRACTICE ACT.
16 SECTION 903. REPORTING.
17 A PHYSICIAN SHALL REPORT TO THE STATE BOARD OF MEDICINE OR
18 THE STATE BOARD OF OSTEOPATHIC MEDICINE, AS APPROPRIATE, WITHIN
19 60 DAYS OF THE OCCURRENCE OF ANY OF THE FOLLOWING:
20 (1) NOTICE OF A COMPLAINT IN A MEDICAL PROFESSIONAL
21 LIABILITY ACTION THAT IS FILED AGAINST THE PHYSICIAN. THE
22 PHYSICIAN SHALL PROVIDE THE DOCKET NUMBER OF THE CASE, WHERE
23 THE CASE IS FILED AND A DESCRIPTION OF THE ALLEGATIONS IN THE
24 COMPLAINT.
25 (2) INFORMATION REGARDING DISCIPLINARY ACTION TAKEN
26 AGAINST THE PHYSICIAN BY A HEALTH CARE LICENSING AUTHORITY OF
27 ANOTHER STATE.
28 (3) INFORMATION REGARDING SENTENCING OF THE PHYSICIAN
29 FOR AN OFFENSE AS PROVIDED IN SECTION 15 OF THE ACT OF
30 OCTOBER 5, 1978 (P.L.1109, NO.261), KNOWN AS THE OSTEOPATHIC
20010H1802B3320 - 130 -
1 MEDICAL PRACTICE ACT, OR SECTION 41 OF THE ACT OF DECEMBER
2 20, 1985 (P.L.457, NO.112), KNOWN AS THE MEDICAL PRACTICE ACT
3 OF 1985.
4 (4) INFORMATION REGARDING AN ARREST OF THE PHYSICIAN FOR
5 ANY OF THE FOLLOWING OFFENSES IN THIS COMMONWEALTH OR ANOTHER
6 STATE:
7 (I) 18 PA.C.S. CH. 25 (RELATING TO CRIMINAL
8 HOMICIDE);
9 (II) 18 PA.C.S. § 2702 (RELATING TO AGGRAVATED
10 ASSAULT); OR
11 (III) 18 PA.C.S. CH. 31 (RELATING TO SEXUAL
12 OFFENSES).
13 (IV) A VIOLATION OF THE ACT OF APRIL 14, 1972
14 (P.L.233, NO.64), KNOWN AS THE CONTROLLED SUBSTANCE,
15 DRUG, DEVICE AND COSMETIC ACT.
16 SECTION 904. COMMENCEMENT OF INVESTIGATION AND ACTION.
17 (A) INVESTIGATIONS BY LICENSURE BOARD.--WITH REGARD TO
18 NOTICES OF COMPLAINTS RECEIVED PURSUANT TO SECTION 903(1), OR A
19 COMPLAINT FILED WITH THE LICENSURE BOARD, THE LICENSURE BOARD
20 SHALL DEVELOP CRITERIA AND STANDARDS FOR REVIEW BASED ON THE
21 FREQUENCY AND SEVERITY OF COMPLAINTS FILED AGAINST A PHYSICIAN.
22 ANY INVESTIGATION OF A PHYSICIAN BASED UPON A COMPLAINT MUST BE
23 COMMENCED NO MORE THAN FOUR YEARS FROM THE DATE NOTICE OF THE
24 COMPLAINT IS RECEIVED UNDER SECTION 903(1).
25 (B) ACTION BY LICENSURE BOARD.--UNLESS AN INVESTIGATION HAS
26 ALREADY BEEN INITIATED PURSUANT TO SUBSECTION (A), AN ACTION
27 AGAINST A PHYSICIAN MUST BE COMMENCED BY THE LICENSURE BOARD NO
28 MORE THAN FOUR YEARS FROM THE TIME THE LICENSURE BOARD RECEIVES
29 THE EARLIEST OF ANY OF THE FOLLOWING:
30 (1) NOTICE THAT A PAYMENT AGAINST THE PHYSICIAN HAS BEEN
20010H1802B3320 - 131 -
1 REPORTED TO THE NATIONAL PRACTITIONER DATA BANK.
2 (2) NOTICE THAT A PAYMENT IN A MEDICAL PROFESSIONAL
3 LIABILITY ACTION AGAINST THE PHYSICIAN HAS BEEN REPORTED TO
4 THE LICENSURE BOARD BY AN INSURER.
5 (3) NOTICE OF A REPORT MADE PURSUANT TO SECTION 903(2),
6 (3) OR (4).
7 (C) LACHES.--THE DEFENSE OF LACHES IS UNAVAILABLE IF THE
8 LICENSURE BOARD COMPLIES WITH THIS SECTION.
9 (D) APPLICABILITY.--THIS SECTION SHALL APPLY TO ACTIONS
10 AGAINST A PHYSICIAN INITIATED ON OR AFTER THE EFFECTIVE DATE OF
11 THIS CHAPTER.
12 SECTION 905. ACTION ON NEGLIGENCE.
13 IF THE LICENSURE BOARD DETERMINES, BASED ON ACTIONS TAKEN
14 PURSUANT TO SECTION 904, THAT A PHYSICIAN HAS PRACTICED
15 NEGLIGENTLY, THE LICENSURE BOARD MAY IMPOSE DISCIPLINARY
16 SANCTIONS OR CORRECTIVE MEASURES.
17 SECTION 906. CONFIDENTIALITY AGREEMENTS.
18 (A) CONFIDENTIALITY AGREEMENTS.--UPON SETTLEMENT OF A
19 MEDICAL PROFESSIONAL LIABILITY ACTION CONTAINING A
20 CONFIDENTIALITY AGREEMENT OR UPON A COURT ORDER SEALING THE
21 SETTLEMENT AND RELATED RECORDS FOR PURPOSES OF CONFIDENTIALITY,
22 THE AGREEMENT OR ORDER SHALL NOT BE OPERABLE AGAINST THE
23 LICENSURE BOARD TO OBTAIN COPIES OF MEDICAL RECORDS OF THE
24 PATIENT ON WHOSE BEHALF THE ACTION IS COMMENCED. PRIOR TO
25 OBTAINING MEDICAL RECORDS UNDER THIS SUBSECTION, THE LICENSURE
26 BOARD MUST OBTAIN THE CONSENT OF THE PATIENT OR THE PATIENT'S
27 LEGAL REPRESENTATIVE.
28 (B) APPLICABILITY.--THE ADDITION OF SUBSECTION (A) SHALL
29 APPLY TO SETTLEMENTS ENTERED INTO AND COURT ORDERS ISSUED ON OR
30 AFTER THE EFFECTIVE DATE OF THIS CHAPTER.
20010H1802B3320 - 132 -
1 SECTION 907. CONFIDENTIALITY OF RECORDS OF LICENSURE BOARDS.
2 (A) GENERAL RULE.--ALL DOCUMENTS, MATERIALS OR INFORMATION
3 UTILIZED SOLELY FOR AN INVESTIGATION UNDERTAKEN BY THE STATE
4 BOARD OF MEDICINE OR STATE BOARD OF OSTEOPATHIC MEDICINE OR
5 CONCERNING A COMPLAINT FILED WITH THE STATE BOARD OF MEDICINE OR
6 STATE BOARD OF OSTEOPATHIC MEDICINE SHALL BE CONFIDENTIAL AND
7 PRIVILEGED. NO PERSON WHO HAS INVESTIGATED OR HAS ACCESS TO OR
8 CUSTODY OF DOCUMENTS, MATERIALS OR INFORMATION WHICH ARE
9 CONFIDENTIAL AND PRIVILEGED UNDER THIS SUBSECTION SHALL BE
10 REQUIRED TO TESTIFY IN ANY JUDICIAL OR ADMINISTRATIVE PROCEEDING
11 WITHOUT THE WRITTEN CONSENT OF THE STATE BOARD OF MEDICINE OR
12 STATE BOARD OF OSTEOPATHIC MEDICINE. THIS SUBSECTION SHALL NOT
13 PRECLUDE OR LIMIT INTRODUCTION OF THE CONTENTS OF AN
14 INVESTIGATIVE FILE OR RELATED WITNESS TESTIMONY IN A HEARING OR
15 PROCEEDING HELD BEFORE THE STATE BOARD OF MEDICINE OR STATE
16 BOARD OF OSTEOPATHIC MEDICINE. THIS SUBSECTION SHALL NOT APPLY
17 TO LETTERS TO A LICENSEE THAT DISCLOSE THE FINAL OUTCOME OF AN
18 INVESTIGATION OR TO FINAL ADJUDICATIONS OR ORDERS ISSUED BY THE
19 LICENSURE BOARD.
20 (B) CERTAIN DISCLOSURE PERMITTED.--EXCEPT AS PROVIDED IN
21 SUBSECTION (A), THIS SECTION SHALL NOT PREVENT DISCLOSURE OF ANY
22 DOCUMENTS, MATERIALS OR INFORMATION PERTAINING TO THE STATUS OF
23 A LICENSE, PERMIT OR CERTIFICATE ISSUED OR PREPARED BY THE STATE
24 BOARD OF MEDICINE OR STATE BOARD OF OSTEOPATHIC MEDICINE OR
25 RELATING TO A PUBLIC DISCIPLINARY PROCEEDING OR HEARING.
26 SECTION 908. LICENSURE BOARD-IMPOSED CIVIL PENALTY.
27 IN ADDITION TO ANY OTHER CIVIL REMEDY OR CRIMINAL PENALTY
28 PROVIDED FOR IN THIS ACT, THE ACT OF DECEMBER 20, 1985 (P.L.457,
29 NO.112), KNOWN AS THE MEDICAL PRACTICE ACT OF 1985 OR THE ACT OF
30 OCTOBER 5, 1978 (P.L.1109, NO.261), KNOWN AS THE OSTEOPATHIC
20010H1802B3320 - 133 -
1 MEDICAL PRACTICE ACT, THE STATE BOARD OF MEDICINE AND THE STATE
2 BOARD OF OSTEOPATHIC MEDICINE, BY A VOTE OF THE MAJORITY OF THE
3 MAXIMUM NUMBER OF THE AUTHORIZED MEMBERSHIP OF EACH BOARD AS
4 PROVIDED BY LAW, OR BY A VOTE OF THE MAJORITY OF THE DULY
5 QUALIFIED AND CONFIRMED MEMBERSHIP OR A MINIMUM OF FIVE MEMBERS,
6 WHICHEVER IS GREATER, MAY LEVY A CIVIL PENALTY OF UP TO $10,000
7 ON ANY CURRENT LICENSEE WHO VIOLATES ANY PROVISION OF THIS ACT,
8 THE MEDICAL PRACTICE ACT OF 1985 OR THE OSTEOPATHIC MEDICAL
9 PRACTICE ACT OR ON ANY PERSON WHO PRACTICES MEDICINE OR
10 OSTEOPATHIC MEDICINE WITHOUT BEING PROPERLY LICENSED TO DO SO
11 UNDER THE MEDICAL PRACTICE ACT OF 1985 OR THE OSTEOPATHIC
12 MEDICAL PRACTICE ACT. THE BOARDS SHALL LEVY THIS PENALTY ONLY
13 AFTER AFFORDING THE ACCUSED PARTY THE OPPORTUNITY FOR A HEARING,
14 AS PROVIDED IN 2 PA.C.S. (RELATING TO ADMINISTRATIVE LAW AND
15 PROCEDURE).
16 SECTION 909. LICENSURE BOARD REPORT.
17 (A) ANNUAL REPORT.--EACH LICENSURE BOARD SHALL SUBMIT A
18 REPORT NOT LATER THAN MARCH 1 OF EACH YEAR TO THE CHAIR AND THE
19 MINORITY CHAIR OF THE CONSUMER PROTECTION AND PROFESSIONAL
20 LICENSURE COMMITTEE OF THE SENATE AND TO THE CHAIR AND MINORITY
21 CHAIR OF THE PROFESSIONAL LICENSURE COMMITTEE OF THE HOUSE OF
22 REPRESENTATIVES. THE REPORT SHALL INCLUDE:
23 (1) THE NUMBER OF COMPLAINT FILES AGAINST BOARD
24 LICENSEES THAT WERE OPENED IN THE PRECEDING FIVE CALENDAR
25 YEARS.
26 (2) THE NUMBER OF COMPLAINT FILES AGAINST BOARD
27 LICENSEES THAT WERE CLOSED IN THE PRECEDING FIVE CALENDAR
28 YEARS.
29 (3) THE NUMBER OF DISCIPLINARY SANCTIONS IMPOSED UPON
30 BOARD LICENSEES IN THE PRECEDING FIVE CALENDAR YEARS.
20010H1802B3320 - 134 -
1 (4) THE NUMBER OF REVOCATIONS, AUTOMATIC SUSPENSIONS,
2 IMMEDIATE TEMPORARY SUSPENSIONS AND STAYED AND ACTIVE
3 SUSPENSIONS IMPOSED, VOLUNTARY SURRENDERS ACCEPTED, LICENSE
4 APPLICATIONS DENIED AND LICENSE REINSTATEMENTS DENIED IN THE
5 PRECEDING FIVE CALENDAR YEARS.
6 (5) THE RANGE OF LENGTHS OF SUSPENSIONS, OTHER THAN
7 AUTOMATIC SUSPENSIONS AND IMMEDIATE TEMPORARY SUSPENSIONS,
8 IMPOSED DURING THE PRECEDING FIVE CALENDAR YEARS.
9 (B) POSTING.--THE REPORT SHALL BE POSTED ON EACH LICENSURE
10 BOARD'S PUBLICLY ACCESSIBLE WORLD WIDE WEB SITE.
11 SECTION 910. CONTINUING MEDICAL EDUCATION.
12 (A) RULES AND REGULATIONS.--EACH LICENSURE BOARD SHALL
13 PROMULGATE AND ENFORCE REGULATIONS CONSISTENT WITH THE ACT OF
14 OCTOBER 5, 1978 (P.L.1109, NO.261), KNOWN AS THE OSTEOPATHIC
15 MEDICAL PRACTICE ACT, OR THE ACT OF DECEMBER 20, 1985 (P.L.457,
16 NO.112), KNOWN AS THE MEDICAL PRACTICE ACT OF 1985, AS
17 APPROPRIATE, IN ESTABLISHING REQUIREMENTS OF CONTINUING MEDICAL
18 EDUCATION FOR INDIVIDUALS LICENSED TO PRACTICE MEDICINE AND
19 SURGERY WITHOUT RESTRICTION AS A CONDITION FOR RENEWAL OF THEIR
20 LICENSES. SUCH REGULATIONS SHALL INCLUDE ANY FEES NECESSARY FOR
21 THE LICENSURE BOARD TO CARRY OUT ITS RESPONSIBILITIES UNDER THIS
22 SECTION.
23 (B) REQUIRED COMPLETION.--BEGINNING WITH THE LICENSURE
24 PERIOD COMMENCING JANUARY 1, 2003, AND FOLLOWING WRITTEN NOTICE
25 TO LICENSEES BY THE LICENSURE BOARD, INDIVIDUALS LICENSED TO
26 PRACTICE MEDICINE AND SURGERY WITHOUT RESTRICTION SHALL BE
27 REQUIRED TO ENROLL AND COMPLETE 100 HOURS OF MANDATORY
28 CONTINUING EDUCATION DURING EACH TWO-YEAR LICENSURE PERIOD. AS
29 PART OF THE 100-HOUR REQUIREMENT, THE LICENSURE BOARD SHALL
30 ESTABLISH A MINIMUM NUMBER OF HOURS THAT MUST BE COMPLETED IN
20010H1802B3320 - 135 -
1 IMPROVING PATIENT SAFETY AND RISK MANAGEMENT SUBJECT AREAS.
2 (C) REVIEW.--THE LICENSURE BOARD SHALL REVIEW AND APPROVE
3 CONTINUING MEDICAL EDUCATION PROVIDERS OR ACCREDITING BODIES WHO
4 SHALL BE CERTIFIED TO OFFER CONTINUING MEDICAL EDUCATION CREDIT
5 HOURS.
6 (D) EXEMPTION.--LICENSEES SHALL BE EXEMPT FROM THE
7 PROVISIONS OF THIS SECTION AS FOLLOWS:
8 (1) AN INDIVIDUAL APPLYING FOR LICENSURE IN THIS
9 COMMONWEALTH FOR THE FIRST TIME SHALL BE EXEMPT FROM THE
10 CONTINUING MEDICAL EDUCATION REQUIREMENT FOR THE BIENNIAL
11 RENEWAL PERIOD FOLLOWING INITIAL LICENSURE.
12 (2) AN INDIVIDUAL HOLDING A CURRENT TEMPORARY TRAINING
13 LICENSE SHALL BE EXEMPT FROM THE CONTINUING MEDICAL EDUCATION
14 REQUIREMENT.
15 (3) A RETIRED PHYSICIAN WHO PROVIDES CARE ONLY TO
16 IMMEDIATE FAMILY MEMBERS SHALL BE EXEMPT FROM THE CONTINUING
17 MEDICAL EDUCATION REQUIREMENT.
18 (E) WAIVER.--THE LICENSURE BOARD MAY WAIVE ALL OR A PORTION
19 OF THE CONTINUING EDUCATION REQUIREMENT FOR BIENNIAL RENEWAL TO
20 A LICENSEE WHO SHOWS TO THE SATISFACTION OF THE LICENSURE BOARD
21 THAT HE OR SHE WAS UNABLE TO COMPLETE THE REQUIREMENTS DUE TO
22 SERIOUS ILLNESS, MILITARY SERVICE OR OTHER DEMONSTRATED
23 HARDSHIP. A WAIVER REQUEST SHALL BE MADE IN WRITING, WITH
24 APPROPRIATE DOCUMENTATION, AND SHALL INCLUDE A DESCRIPTION OF
25 CIRCUMSTANCES SUFFICIENT TO SHOW WHY COMPLIANCE IS IMPOSSIBLE. A
26 WAIVER REQUEST SHALL BE EVALUATED BY THE LICENSURE BOARD ON A
27 CASE-BY-CASE BASIS. THE LICENSURE BOARD SHALL SEND WRITTEN
28 NOTIFICATION OF ITS APPROVAL OR DENIAL OF A WAIVER REQUEST.
29 (F) REINSTATEMENT.--A LICENSEE SEEKING TO REINSTATE AN
30 INACTIVE OR LAPSED LICENSE SHALL SHOW PROOF OF COMPLIANCE WITH
20010H1802B3320 - 136 -
1 THE CONTINUING EDUCATION REQUIREMENT FOR THE PRECEDING BIENNIUM.
2 (G) BOARD APPROVAL.--AN INDIVIDUAL SHALL RETAIN OFFICIAL
3 DOCUMENTATION OF ATTENDANCE FOR TWO YEARS AFTER RENEWAL, AND
4 SHALL CERTIFY COMPLETED COURSES ON A FORM PROVIDED BY THE
5 LICENSURE BOARD FOR THAT PURPOSE TO BE FILED WITH THE BIENNIAL
6 RENEWAL FORM. OFFICIAL DOCUMENTATION PROVING ATTENDANCE SHALL BE
7 PRODUCED UPON LICENSURE BOARD DEMAND, PURSUANT TO RANDOM AUDITS
8 OF REPORTED CREDIT HOURS. ELECTRONIC SUBMISSION OF DOCUMENTATION
9 IS PERMISSIBLE TO PROVE COMPLIANCE WITH THIS SUBSECTION.
10 NONCOMPLIANCE WITH THE REQUIREMENTS OF THIS SECTION MAY RESULT
11 IN DISCIPLINARY PROCEEDINGS.
12 (H) REGULATIONS.--THE LICENSURE BOARD SHALL PROMULGATE
13 REGULATIONS NECESSARY TO CARRY OUT THE PROVISIONS OF THIS
14 SECTION WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THIS SECTION.
15 CHAPTER 51
16 MISCELLANEOUS PROVISIONS
17 SECTION 5101. OVERSIGHT.
18 (A) GENERAL RULE.--THE DEPARTMENT HAS THE AUTHORITY AND
19 SHALL ASSUME OVERSIGHT OF THE MEDICAL PROFESSIONAL LIABILITY
20 CATASTROPHE LOSS FUND ESTABLISHED IN SECTION 701(D) OF THE ACT
21 OF OCTOBER 15, 1975 (P.L.390, NO.111), KNOWN AS THE HEALTH CARE
22 SERVICES MALPRACTICE ACT. AS PART OF ITS RESPONSIBILITIES, THE
23 DEPARTMENT SHALL DO ALL OF THE FOLLOWING:
24 (1) MAKE ALL ADMINISTRATIVE DECISIONS, INCLUDING
25 STAFFING REQUIREMENTS, ON BEHALF OF THAT FUND.
26 (2) APPROVE THE ADJUSTMENT, DEFENSE, LITIGATION,
27 SETTLEMENT OR COMPROMISE OF ANY CLAIM PAYABLE BY THAT FUND.
28 (3) COLLECT THE SURCHARGES IMPOSED IN ACCORDANCE WITH
29 SECTION 701(E)(1) OF THE HEALTH CARE SERVICES MALPRACTICE
30 ACT.
20010H1802B3320 - 137 -
1 (B) EXPIRATION.--THIS SECTION SHALL EXPIRE SEPTEMBER 1,
2 2002.
3 SECTION 5102. PRIOR FUND.
4 (A) ADMINISTRATION.--EMPLOYEES OF THE MEDICAL PROFESSIONAL
5 LIABILITY CATASTROPHE LOSS FUND ON THE EFFECTIVE DATE OF THIS
6 SECTION SHALL CONTINUE TO ADMINISTER THAT FUND SUBJECT TO THE
7 AUTHORITY AND OVERSIGHT OF THE DEPARTMENT. THIS SUBSECTION SHALL
8 EXPIRE SEPTEMBER 1, 2002.
9 (B) EMPLOYEES.--IF AN EMPLOYEE OF THAT FUND ON THE EFFECTIVE
10 DATE OF THIS SECTION IS SUBSEQUENTLY FURLOUGHED AND THE EMPLOYEE
11 HELD A POSITION NOT COVERED BY A COLLECTIVE BARGAINING
12 AGREEMENT, THE EMPLOYEE SHALL BE GIVEN PRIORITY CONSIDERATION
13 FOR EMPLOYMENT TO FILL VACANCIES WITH EXECUTIVE AGENCIES UNDER
14 THE GOVERNOR'S JURISDICTION.
15 SECTION 5103. NOTICE.
16 WHEN THE AUTHORITY HAS ESTABLISHED A STATEWIDE REPORTING
17 SYSTEM, THE NOTICE SHALL BE TRANSMITTED TO THE LEGISLATIVE
18 REFERENCE BUREAU FOR PUBLICATION IN THE PENNSYLVANIA BULLETIN.
19 SECTION 5104. REPEALS.
20 (A) SPECIFIC.--
21 (1) SECTION 6506(C) OF TITLE 75 OF THE PENNSYLVANIA
22 CONSOLIDATED STATUTES IS REPEALED.
23 (2) EXCEPT AS SET FORTH IN PARAGRAPHS (3), (4) AND (5),
24 THE ACT OF OCTOBER 15, 1975 (P.L.390, NO.111), KNOWN AS THE
25 HEALTH CARE SERVICES MALPRACTICE ACT, IS REPEALED.
26 (3) SECTION 103 OF THE HEALTH CARE SERVICES MALPRACTICE
27 ACT IS REPEALED.
28 (4) EXCEPT AS PROVIDED IN PARAGRAPH (5), ARTICLE VII OF
29 THE HEALTH CARE SERVICES MALPRACTICE ACT IS REPEALED.
30 (5) SECTION 701(E)(1) OF THE HEALTH CARE SERVICES
20010H1802B3320 - 138 -
1 MALPRACTICE ACT IS REPEALED.
2 (B) INCONSISTENT.--
3 (1) SECTION 6506(B) OF TITLE 75 OF THE PENNSYLVANIA
4 CONSOLIDATED STATUTES IS REPEALED INSOFAR AS IT IS
5 INCONSISTENT WITH SECTION 712(M).
6 (2) ALL OTHER ACTS AND PARTS OF ACTS ARE REPEALED
7 INSOFAR AS THEY ARE INCONSISTENT WITH THIS ACT.
8 SECTION 5105. APPLICABILITY.
9 (A) PATIENT SAFETY DISCOUNT.--SECTION 312 SHALL APPLY TO
10 POLICIES ISSUED OR RENEWED AFTER DECEMBER 31, 2002.
11 (B) ACTIONS.--SECTIONS 504(D)(2), 505(E), 508, 509 AND 510
12 SHALL APPLY TO CAUSES OF ACTION WHICH ARISE ON OR AFTER THE
13 EFFECTIVE DATE OF THIS SECTION.
14 SECTION 5106. CONTINUATION.
15 (A) ORDERS AND REGULATIONS.--ORDERS AND REGULATIONS WHICH
16 WERE ISSUED OR PROMULGATED UNDER THE FORMER ACT OF OCTOBER 15,
17 1975 (P.L.390, NO.111), KNOWN AS THE HEALTH CARE SERVICES
18 MALPRACTICE ACT, AND WHICH ARE IN EFFECT ON THE EFFECTIVE DATE
19 OF THIS SECTION SHALL REMAIN APPLICABLE AND IN FULL FORCE AND
20 EFFECT UNTIL MODIFIED UNDER THIS ACT.
21 (B) ADMINISTRATION AND CONSTRUCTION.--TO THE EXTENT POSSIBLE
22 UNDER SUBCHAPTER C OF CHAPTER 7, THE JOINT UNDERWRITING
23 ASSOCIATION IS AUTHORIZED TO ADMINISTER SUBCHAPTER C OF CHAPTER
24 7 AS A CONTINUATION OF THE FORMER ARTICLE VIII OF THE HEALTH
25 CARE SERVICES MALPRACTICE ACT.
26 SECTION 5107. EFFECTIVE DATE.
27 THIS ACT SHALL TAKE EFFECT AS FOLLOWS:
28 (1) THE FOLLOWING PROVISIONS SHALL TAKE EFFECT
29 IMMEDIATELY:
30 (I) CHAPTER 1.
20010H1802B3320 - 139 -
1 (II) SECTION 501.
2 (III) SECTION 502.
3 (IV) SECTION 503.
4 (V) SECTION 504.
5 (VI) SECTION 505.
6 (VII) SECTION 506.
7 (VIII) SECTION 507.
8 (IX) SECTION 508.
9 (X) SECTION 509.
10 (XI) SECTION 510.
11 (XII) SECTION 513.
12 (XIII) SECTION 514.
13 (XIV) EXCEPT AS PROVIDED IN PARAGRAPH (3)(I),
14 CHAPTER 7.
15 (XV) SECTION 5101.
16 (XVI) SECTION 5102.
17 (XVII) SECTION 5103.
18 (XVIII) SECTION 5104(A)(1) AND (2) AND (B)(2).
19 (XIX) SECTION 5105.
20 (XX) SECTION 5106.
21 (XXI) THIS SECTION.
22 (2) THE FOLLOWING PROVISIONS SHALL TAKE EFFECT 30 DAYS
23 AFTER PUBLICATION OF THE NOTICE UNDER SECTION 5103:
24 (I) SECTION 313.
25 (II) SECTION 314.
26 (3) THE FOLLOWING PROVISIONS SHALL TAKE EFFECT SEPTEMBER
27 1, 2002:
28 (I) SECTION 712(B) AND (C)(1).
29 (II) SECTION 5104(A)(4).
30 (4) SECTION 5104(A) (3) AND (5) AND (B)(1) SHALL TAKE
20010H1802B3320 - 140 -
1 EFFECT JANUARY 1, 2004.
2 (5) THE REMAINDER OF THIS ACT SHALL TAKE EFFECT IN 60
3 DAYS.
F13L40JLW/20010H1802B3320 - 141 -