THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY GODSHALL, AUMENT, BAKER, BOYD, CLYMER, CUTLER, FLECK, GEIST, GROVE, KAUFFMAN, MARSICO, MILNE, MOUL, QUINN, STERN, SWANGER AND VULAKOVICH, FEBRUARY 16, 2011

REFERRED TO COMMITTEE ON INSURANCE, FEBRUARY 16, 2011  

AN ACT

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

"An act reforming the law on medical professional liability;

providing for patient safety and reporting; establishing the

Patient Safety Authority and the Patient Safety Trust Fund;

abrogating regulations; providing for medical professional

liability informed consent, damages, expert qualifications,

limitations of actions and medical records; establishing the

Interbranch Commission on Venue; providing for medical

professional liability insurance; establishing the Medical

Care Availability and Reduction of Error Fund; providing for

medical professional liability claims; establishing the Joint

Underwriting Association; regulating medical professional

liability insurance; providing for medical licensure

regulation; providing for administration; imposing penalties;

and making repeals," further providing for medical

professional liability insurance, for basic coverage limits,

for Medical Care Availability and Reduction of Error Fund

liability limits and for extended claims.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Sections 711(d), 712(c) and 715 of the act of

March 20, 2002 (P.L.154, No.13), known as the Medical Care

Availability and Reduction of Error (Mcare) Act, are amended to

read:

Section 711.  Medical professional liability insurance.

* * *

(d)  Basic coverage limits.--A health care provider shall

insure or self-insure medical professional liability in

accordance with the following:

(1)  For policies issued or renewed in the calendar year

2002, the basic insurance coverage shall be:

(i)  $500,000 per occurrence or claim and $1,500,000

per annual aggregate for a health care provider who

conducts more than 50% of its health care business or

practice within this Commonwealth and that is not a

hospital.

(ii)  $500,000 per occurrence or claim and $1,500,000

per annual aggregate for a health care provider who

conducts 50% or less of its health care business or

practice within this Commonwealth.

(iii)  $500,000 per occurrence or claim and

$2,500,000 per annual aggregate for a hospital.

(2)  For policies issued or renewed in the calendar years

2003, 2004 and 2005, the basic insurance coverage shall be:

(i)  $500,000 per occurrence or claim and $1,500,000

per annual aggregate for a participating health care

provider that is not a hospital.

(ii)  $1,000,000 per occurrence or claim and

$3,000,000 per annual aggregate for a nonparticipating

health care provider.

(iii)  $500,000 per occurrence or claim and

$2,500,000 per annual aggregate for a hospital.

(3)  Unless the commissioner finds pursuant to section

745(a) that additional basic insurance coverage capacity is

not available, for policies issued or renewed in calendar

year 2006 and each year thereafter subject to paragraph (4),

the basic insurance coverage shall be:

(i)  $750,000 per occurrence or claim and $2,250,000

per annual aggregate for a participating health care

provider that is not a hospital.

(ii)  $1,000,000 per occurrence or claim and

$3,000,000 per annual aggregate for a nonparticipating

health care provider.

(iii)  $750,000 per occurrence or claim and

$3,750,000 per annual aggregate for a hospital.

If the commissioner finds pursuant to section 745(a) that

additional basic insurance coverage capacity is not

available, the basic insurance coverage requirements shall

remain at the level required by paragraph (2); and the

commissioner shall conduct a study every two years until the

commissioner finds that additional basic insurance coverage

capacity is available, at which time the commissioner shall

increase the required basic insurance coverage in accordance

with this paragraph.

(4)  Unless the commissioner finds pursuant to section

745(b) that additional basic insurance coverage capacity is

not available, for policies issued or renewed three years

after the increase in coverage limits required by paragraph

(3) and for each year thereafter, the basic insurance

coverage shall be:

(i)  [$1,000,000] $500,000 per occurrence or claim

and [$3,000,000] $1,500,000 per annual aggregate for a

participating health care provider that is not a

hospital.

(ii)  [$1,000,000] $500,000 per occurrence or claim

and [$3,000,000] $1,500,000 per annual aggregate for a

nonparticipating health care provider.

(iii)  $1,000,000 per occurrence or claim and

$4,500,000 per annual aggregate for a hospital.

[If the commissioner finds pursuant to section 745(b) that

additional basic insurance coverage capacity is not

available, the basic insurance coverage requirements shall

remain at the level required by paragraph (3); and the

commissioner shall conduct a study every two years until the

commissioner finds that additional basic insurance coverage

capacity is available, at which time the commissioner shall

increase the required basic insurance coverage in accordance

with this paragraph.]

* * *

Section 712.  Medical Care Availability and Reduction of Error

Fund.

* * *

(c)  Fund liability limits.--

(1)  For calendar year 2002, the limit of liability of

the fund created in section 701(d) of the former Health Care

Services Malpractice Act for each health care provider that

conducts more than 50% of its health care business or

practice within this Commonwealth and for each hospital shall

be $700,000 for each occurrence and $2,100,000 per annual

aggregate.

(2)  The limit of liability of the fund for each

participating health care provider shall be as follows:

(i)  For calendar year 2003 and each year thereafter,

the limit of liability of the fund shall be $500,000 for

each occurrence and $1,500,000 per annual aggregate.

(ii)  If the basic insurance coverage requirement is

increased in accordance with section 711(d)(3) and,

notwithstanding subparagraph (i), for each calendar year

following the increase in the basic insurance coverage

requirement, the limit of liability of the fund shall be

$250,000 for each occurrence and $750,000 per annual

aggregate.

[(iii)  If the basic insurance coverage requirement

is increased in accordance with section 711(d)(4) and,

notwithstanding subparagraphs (i) and (ii), for each

calendar year following the increase in the basic

insurance coverage requirement, the limit of liability of

the fund shall be zero.]

(3)  For calendar year 2011 and each year thereafter the

limit of liability of the fund shall be zero.

* * *

Section 715.  Extended claims.

(a)  General rule.--If a medical professional liability claim

against a health care provider who was required to participate

in the Medical Professional Liability Catastrophe Loss Fund

under section 701(d) of the act of October 15, 1975 (P.L.390,

No.111), known as the Health Care Services Malpractice Act, is

made more than four years after the breach of contract or tort

occurred and if the claim is filed within the applicable statute

of limitations, the claim shall be defended by the department if

the department received a written request for indemnity and

defense within 180 days of the date on which notice of the claim

is first given to the participating health care provider or its

insurer. Where multiple treatments or consultations took place

less than four years before the date on which the health care

provider or its insurer received notice of the claim, the claim

shall be deemed for purposes of this section to have occurred

less than four years prior to the date of notice and shall be

defended by the insurer in accordance with this chapter.

(b)  Payment.--If a health care provider is found liable for

a claim defended by the department in accordance with subsection

(a), the claim shall be paid by the fund. The limit of liability

of the fund for a claim defended by the department under

subsection (a) shall be $1,000,000 per occurrence[.], except as

provided for under subsection (b.1).

(b.1)  Limit of liability.--The limit of liability of the

fund for an occurrence or claim that arose on or after January

1, 2011, shall be zero.

(c)  Concealment.--If a claim is defended by the department

under subsection (a) or paid under subsection (b) and the claim

is made after four years because of the willful concealment by

the health care provider or its insurer, the fund shall have the

right to full indemnity, including the department's defense

costs, from the health care provider or its insurer.

(d)  Extended coverage required.--Notwithstanding subsections

(a), (b) and (c), all medical professional liability insurance

policies issued on or after January 1, 2006, shall provide

indemnity and defense for claims asserted against a health care

provider for a breach of contract or tort which occurs four or

more years after the breach of contract or tort occurred and

after December 31, 2005.

Section 2.  This act shall take effect in 60 days.