[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 1518 Introduced in Senate (IS)]






108th CONGRESS
  1st Session
                                S. 1518

   To restore reliability to the medical justice system by fostering 
    alternatives to current medical tort litigation, and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                July 31 (legislative day, July 21), 2003

   Mr. Enzi introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
   To restore reliability to the medical justice system by fostering 
    alternatives to current medical tort litigation, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Reliable Medical Justice Act''.

SEC. 2. PURPOSES.

    The purposes of this Act are--
            (1) to restore reliability to the medical justice system by 
        fostering alternatives to current medical tort litigation that 
        promote early disclosure of health care errors and provide 
        prompt, fair, and reasonable compensation to patients who are 
        injured by health care errors; and
            (2) to support and assist States in developing such 
        alternatives.

SEC. 3. STATE DEMONSTRATION PROGRAMS TO EVALUATE ALTERNATIVES TO 
              CURRENT MEDICAL TORT LITIGATION.

    Part P of title III of the Public Health Service Act (42 U.S.C. 
280g et seq.) is amended by adding at the end the following:

``SEC. 3990. STATE DEMONSTRATION PROGRAM TO EVALUATE ALTERNATIVES TO 
              CURRENT MEDICAL TORT LITIGATION.

    ``(a) In General.--The Secretary is authorized to award 
demonstration grants to States for the development, implementation, and 
evaluation of alternatives to current tort litigation for resolving 
disputes over injuries allegedly caused by health care providers or 
health care organizations.
    ``(b) Duration.--The Secretary may award up to 7 grants under 
subsection (a) and each grant awarded under such subsection may not 
exceed a period of 10 years.
    ``(c) Conditions for Demonstration Grants.--
            ``(1) Requirements.--Each State desiring a grant under 
        subsection (a) shall--
                    ``(A) develop an alternative to current tort 
                litigation for resolving disputes over injuries 
                allegedly caused by health care providers or health 
                care organizations that may be 1 of the models 
                described in subsection (d); and
                    ``(B) establish procedures to allow for patient 
                safety data related to disputes resolved under 
                subparagraph (A) to be collected and analyzed by 
                organizations that engage in voluntary efforts to 
                improve patient safety and the quality of health care 
                delivery, in accordance with guidelines established by 
                the Secretary.
            ``(2) Alternative to current tort litigation.--Each State 
        desiring a grant under subsection (a) shall demonstrate how the 
        proposed alternative described in paragraph (1)(A)--
                    ``(A) makes the medical liability system more 
                reliable;
                    ``(B) enhances patient safety; and
                    ``(C) maintains access to liability insurance.
            ``(3) Sources of compensation.--Each State desiring a grant 
        under subsection (a) shall identify the sources from and 
        methods by which compensation would be paid for claims resolved 
        under the proposed alternative to current tort litigation, 
        which may include public or private funding sources, or a 
        combination of such sources. Funding methods may provide 
        financial incentives for activities that improve patient 
        safety.
            ``(4) Scope.--Each State desiring a grant under subsection 
        (a) may establish a scope of jurisdiction (such as a designated 
        geographic region or a designated area of health care practice) 
        for the proposed alternative to current tort litigation that is 
        sufficient to evaluate the effects of the alternative.
    ``(d) Models.--
            ``(1) In general.--Any State desiring a grant under 
        subsection (a) that proposes an alternative described in 
        paragraph (2), (3), or (4) shall be deemed to meet the criteria 
        under subsection (c)(2).
            ``(2) Early disclosure and compensation model.--In the 
        early disclosure and compensation model, the State shall--
                    ``(A) provide immunity from tort liability (except 
                in cases of fraud, or in cases of criminal or 
                intentional harm) to any health care provider or health 
                care organization that enters into an agreement to pay 
                compensation to a patient for an injury;
                    ``(B) set a limited time period during which a 
                health care provider or health care organization may 
                make an offer of compensation benefits under 
                subparagraph (A), with consideration for instances 
                where prompt recognition of an injury is unlikely or 
                impossible;
                    ``(C) require that the compensation provided under 
                subparagraph (A) include--
                            ``(i) payment for the net economic loss of 
                        the patient, on a periodic basis, reduced by 
                        any payments received by the patient under--
                                    ``(I) any health or accident 
                                insurance;
                                    ``(II) any wage or salary 
                                continuation plan; or
                                    ``(III) any disability income 
                                insurance;
                            ``(ii) payment for the patient's pain and 
                        suffering, if appropriate for the injury, based 
                        on a capped payment schedule developed by the 
                        State in consultation with relevant experts; 
                        and
                            ``(iii) reasonable attorney's fees;
                    ``(D) not abridge the right of an injured patient 
                to seek redress through the State tort system if a 
                health care provider does not enter into a compensation 
                agreement with the patient in accordance with 
                subparagraph (A);
                    ``(E) prohibit a patient who accepts compensation 
                benefits in accordance with subparagraph (A) from 
                filing a health care lawsuit against other health care 
                providers or health care organizations for the same 
                injury; and
                    ``(F) permit a health care provider or health care 
                organization that enters into an agreement to pay 
                compensation benefits to an individual under 
                subparagraph (A) to join in the payment of the 
                compensation benefits of any health care provider or 
                health care organization that is potentially liable, in 
                whole or in part, for the injury.
            ``(3) Administrative determination of compensation model.--
                    ``(A) In general.--In the administrative 
                determination of compensation model--
                            ``(i) the State shall--
                                    ``(I) designate an administrative 
                                entity (in this paragraph referred to 
                                as the `Board') that shall include 
                                representatives of--
                                            ``(aa) relevant State 
                                        licensing boards;
                                            ``(bb) patient advocacy 
                                        groups;
                                            ``(cc) health care 
                                        providers and health care 
                                        organizations; and
                                            ``(dd) attorneys in 
                                        relevant practice areas;
                                    ``(II) set up classes of avoidable 
                                injuries that will be used by the Board 
                                to determine compensation under clause 
                                (ii)(II) and, in setting such classes, 
                                may consider 1 or more factors, 
                                including--
                                            ``(aa) the severity of the 
                                        disability arising from the 
                                        injury;
                                            ``(bb) the cause of injury;
                                            ``(cc) the length of time 
                                        the patient will be affected by 
                                        the injury;
                                            ``(dd) the degree of fault 
                                        of the health care provider or 
                                        health care organization; and
                                            ``(ee) standards of care 
                                        that the State may adopt and 
                                        their breach;
                                    ``(III) modify tort liability, 
                                through statute or contract, to bar 
                                negligence claims in court against 
                                health care providers and health care 
                                organizations for the classes of 
                                injuries established under subclause 
                                (II), except in cases of fraud, or in 
                                cases of criminal or intentional harm;
                                    ``(IV) outline a procedure for 
                                informing patients about the modified 
                                liability system described in this 
                                paragraph and, in systems where 
                                participation by the health care 
                                provider, health care organization, or 
                                patient is voluntary, allow for the 
                                decision by the provider, organization, 
                                or patient of whether to participate to 
                                be made prior to the provision of, use 
                                of, or payment for the health care 
                                service;
                                    ``(V) provide for an appeals 
                                process to allow for a review of 
                                decisions; and
                                    ``(VI) establish procedures to 
                                coordinate settlement payments with 
                                other sources of payment;
                            ``(ii) the Board shall--
                                    ``(I) resolve health care liability 
                                claims for certain classes of avoidable 
                                injuries as determined by the State and 
                                determine compensation for such claims; 
                                and
                                    ``(II) develop a schedule of 
                                compensation to be used in making such 
                                determinations that includes--
                                            ``(aa) payment for the net 
                                        economic loss of the patient, 
                                        on a periodic basis, reduced by 
                                        any payments received by the 
                                        patient under any health or 
                                        accident insurance, any wage or 
                                        salary continuation plan, or 
                                        any disability income 
                                        insurance;
                                            ``(bb) payment for the 
                                        patient's pain and suffering, 
                                        if appropriate for the injury, 
                                        based on a capped payment 
                                        schedule developed by the State 
                                        in consultation with relevant 
                                        experts; and
                                            ``(cc) reasonable 
                                        attorney's fees; and
                            ``(iii) the Board may--
                                    ``(I) develop guidelines relating 
                                to--
                                            ``(aa) the standard of 
                                        care; and
                                            ``(bb) the credentialing 
                                        and disciplining of doctors; 
                                        and
                                    ``(II) develop a plan for updating 
                                the schedule under clause (ii)(II) on a 
                                regular basis.
                    ``(B) Appeals.--The State, in establishing the 
                appeals process described in subparagraph (A)(i)(V), 
                may choose whether to allow for de novo review, review 
                with deference, or some opportunity for parties to 
                reject determinations by the Board and elect to file a 
                civil action after such rejection. Any State desiring 
                to adopt the model described in this paragraph shall 
                indicate how such review method meets the criteria 
under subsection (c)(2).
                    ``(C) Timeliness.--Any claim handled under the 
                system described in this paragraph shall provide for 
                adjudication that is more timely and expedited than 
                adjudication in a traditional tort system.
            ``(4) Special health care court model.--In the special 
        health care court model, the State shall--
                    ``(A) establish a special court for adjudication of 
                disputes over injuries allegedly caused by health care 
                providers or health care organizations;
                    ``(B) ensure that such court is presided over by 
                judges with expertise in and an understanding of health 
                care;
                    ``(C) provide authority to such judges to make 
                binding rulings on causation, compensation, standards 
                of care, and related issues;
                    ``(D) provide for an appeals process to allow for a 
                review of decisions; and
                    ``(E) at its option, establish an administrative 
                entity similar to the entity described in paragraph 
                (3)(a)(i)(I) to provide advice and guidance to the 
                special court.
    ``(e) Application.--Each State desiring a grant under subsection 
(a) shall submit to the Secretary an application, at such time, in such 
manner, and containing such information as the Secretary may require.
    ``(f) Report.--Each State receiving a grant under subsection (a) 
shall submit to the Secretary a report evaluating the effectiveness of 
activities funded with grants awarded under such subsection at such 
time and in such manner as the Secretary may require.
    ``(g) Technical Assistance.--The Secretary shall provide technical 
assistance to the States awarded grants under subsection (a). Such 
technical assistance shall include the development, in consultation 
with States, of common definitions, formats, and data collection 
infrastructure for States receiving grants under this section to use in 
reporting to facilitate aggregation and analysis of data both within 
and between States. States not receiving grants under this section may 
also use such common definitions, formats, and data collection 
infrastructure.
    ``(h) Evaluation.--
            ``(1) In general.--The Secretary shall enter into a 
        contract with an appropriate research organization to conduct 
        an overall evaluation of the effectiveness of grants awarded 
        under subsection (a) and to annually prepare and submit a 
        report to the appropriate committees of Congress. Such an 
        evaluation shall begin not later than 18 months following the 
        date of implementation of the first program funded by a grant 
        under subsection (a).
            ``(2) Contents.--The evaluation under paragraph (1) shall 
        include--
                    ``(A) an analysis of the effect of the grants 
                awarded under subsection (a) on the number, nature, and 
                costs of health care liability claims;
                    ``(B) a comparison of the claim and cost 
                information of each State receiving a grant under 
                subsection (a); and
                    ``(C) a comparison between States receiving a grant 
                under this section and States that did not receive such 
                a grant, matched to ensure similar legal and health 
                care environments, and to determine the effects of the 
                grants and subsequent reforms on--
                            ``(i) the liability environment;
                            ``(ii) health care quality; and
                            ``(iii) patient safety.
    ``(i) Option To Provide for Initial Planning Grants.--Of the funds 
appropriated pursuant to subsection (k), the Secretary may use a 
portion not to exceed $500,000 per State to provide planning grants to 
such States for the development of demonstration proposals meeting the 
criteria described in subsection (c). In selecting States to receive 
such planning grants, the Secretary shall give preference to those 
States in which current law would not prohibit the adoption of an 
alternative to current tort litigation.
    ``(j) Definitions.--In this section:
            ``(1) Health care services.--The term `health care 
        services' means any services provided by a health care 
        provider, or by any individual working under the supervision of 
        a health care provider, that relate to--
                    ``(A) the diagnosis, prevention, or treatment of 
                any human disease or impairment; or
                    ``(B) the assessment of the health of human beings.
            ``(2) Health care organization.--The term `health care 
        organization' means any individual or entity which is obligated 
        to provide, pay for, or administer health benefits under any 
        health plan.
            ``(3) Health care provider.--The term `health care 
        provider' means any individual or entity--
                    ``(A) licensed, registered, or certified under 
                Federal or State laws or regulations to provide health 
                care services; or
                    ``(B) required to be so licensed, registered, or 
                certified but that is exempted by other statute or 
                regulation.
            ``(4) Net economic loss.--The term `net economic loss' 
        means--
                    ``(A) reasonable expenses incurred for products, 
                services, and accommodations needed for health care, 
                training, and other remedial treatment and care of an 
                injured individual;
                    ``(B) reasonable and appropriate expenses for 
                rehabilitation treatment and occupational training;
                    ``(C) 100 percent of the loss of income from work 
                that an injured individual would have performed if not 
                injured, reduced by any income from substitute work 
                actually performed; and
                    ``(D) reasonable expenses incurred in obtaining 
                ordinary and necessary services to replace services an 
                injured individual would have performed for the benefit 
                of the individual or the family of such individual if 
                the individual had not been injured.
    ``(k) Authorization of Appropriations.--There are authorized to be 
appropriated to carry out this section such sums as may be necessary. 
Amounts appropriated pursuant to this subsection shall remain available 
until expended.''.
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