[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3865 Introduced in House (IH)]







109th CONGRESS
  1st Session
                                H. R. 3865

   To provide for the establishment of medical malpractice insurance 
   corporations which may operate and function without hindrance or 
   impedance in any or all of the States, to limit frivolous medical 
             malpractice lawsuits, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 22, 2005

 Mr. Andrews introduced the following bill; which was referred to the 
 Committee on Energy and Commerce, and in addition to the Committee on 
   the Judiciary, for a period to be subsequently determined by the 
  Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
   To provide for the establishment of medical malpractice insurance 
   corporations which may operate and function without hindrance or 
   impedance in any or all of the States, to limit frivolous medical 
             malpractice lawsuits, 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 ``Medical Malpractice Insurance 
Corporation Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Arbitration.--The term ``arbitration'' means a 
        settlement process that--
                    (A) is coordinated by a neutral third party or a 
                panel of neutral third parties, such as a medical 
                malpractice arbitration panel established under section 
                4(e); and
                    (B) includes the ultimate rendering of a formal 
                opinion as to factual or legal findings.
            (2) Claimant.--The term ``claimant'' means any person who 
        alleges a medical malpractice claim, and any person on whose 
        behalf such a claim is alleged, including the decedent in the 
        case of an action brought through or on behalf of an estate.
            (3) Health care professional.--The term ``health care 
        professional'' means any individual who provides health care 
        services in a State and who is required by the laws or 
        regulations of the State to be licensed or certified by the 
        State to provide such services in the State.
            (4) Health care provider.--The term ``health care 
        provider'' means a hospital or other organization or 
        institution that is engaged in the delivery of health care 
        services in a State and that is required by the laws or 
        regulations of the State to be licensed or certified by the 
        State to engage in the delivery of such services in the State.
            (5) Hospital.--The term ``hospital'' means any of the 
        following:
                    (A) Any facility defined as a hospital under State 
                law and issued an operating certificate as a hospital 
                or nursing home.
                    (B) Any ambulance service which is registered or 
                certified under State law and which is designed and 
                equipped to provide definitive acute medical care 
                pursuant to rules and regulations of the State health 
                agency, which must include the provision of advanced 
                life support services.
                    (C) Any community mental health center operated by 
                a State or unit of local government, holding an 
                operating certificate issued by the State mental 
                hygiene agency.
                    (D) Any certified public or voluntary non-profit 
                home care service agency which possesses a valid 
                certificate of approval issued under State public 
                health law.
            (6) Injury.--The term ``injury'' means any illness, 
        disease, or other harm that is the subject of a medical 
        malpractice liability action or a medical malpractice claim.
            (7) Medical malpractice claim.--The term ``medical 
        malpractice claim'' means a claim against a health care 
        professional or health care provider in which a claimant 
        alleges that injury was caused by the provision of (or the 
        failure to provide) health care services, except that such term 
        does not include--
                    (A) any claim based on an allegation of an 
                intentional tort; or
                    (B) any claim based on an allegation that a product 
                is defective or unreasonably dangerous.
            (8) Medical malpractice insurance.--The term ``medical 
        malpractice insurance'' means insurance against legal liability 
        of the insured, and against loss, damage, or expense incident 
        to a claim of such liability arising out of the death or injury 
        of any person due to medical, dental, podiatric, certified 
        nurse-midwifery, or hospital malpractice by any health care 
        professional or health care provider.
            (9) Medical malpractice liability action.--The term 
        ``medical malpractice liability action'' means an arbitration 
        proceeding (or a subsequent civil action brought in a State or 
        Federal court) against a health care professional or a health 
        care provider in which the claimant alleges a medical 
        malpractice claim.
            (10) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.
            (11) State.--The term ``State'' means the 50 States, the 
        District of Columbia, and any Commonwealth, territory, or 
        possession of the United States.

SEC. 3. MEDICAL MALPRACTICE INSURANCE CORPORATIONS.

    (a) Establishment and Purpose.--There are authorized to be 
established bodies corporate which shall provide medical malpractice 
insurance to health care professionals and health care providers based 
on customary coverage terms and liability amounts.
    (b) Certification.--The Secretary for Health and Human Services 
shall certify as a medical malpractice insurance corporation each 
corporation that satisfies the requirements of subsection (d).
    (c) Operation.--Notwithstanding any State law to the contrary, a 
medical malpractice insurance corporation certified under subsection 
(b) may operate and function without hindrance or impedance in any or 
all of the several States.
    (d) Certification Requirements.--A corporation may be certified as 
a medical malpractice insurance corporation if--
            (1) it is subject to the fiduciary standards promulgated by 
        the Secretary for Health and Human Services, as required by 
        subsection (e);
            (2) its corporate structure is organized in such a way as 
        to require any excess earnings to be used to reduce premiums 
        paid by their insureds, consistent with the fiduciary standards 
        promulgated under subsection (e); and
            (3) its corporate structure is organized under the 
        requirements of section 501(c)(3) of the Internal Revenue Code 
        of 1986.
    (e) Promulgation of and Adherence to Fiduciary Standards.--The 
Secretary shall promulgate appropriate fiduciary standards to which all 
such medical malpractice insurance corporations shall adhere.

SEC. 4. MEDICAL MALPRACTICE DISPUTE RESOLUTION.

    (a) Qualified Expert Opinion.--
            (1) Accompanying affidavit.--No medical malpractice 
        liability action may be brought against a health care 
        professional or a health care provider by any claimant unless, 
        at the time the claimant brings the action (except as provided 
        in subsection (c)), it is accompanied by the affidavit of a 
        qualified specialist or medical expert containing the 
        information required by paragraph (2).
            (2) Contents of affidavit.--To satisfy the requirements of 
        paragraph (1), the affidavit shall include the specialist's or 
        expert's statement of belief that, based on a review of the 
        available medical record and other relevant material, there is 
        a reasonable and meritorious cause for the filing of the 
        action.
    (b) Qualified Specialist or Medical Expert.--With respect to a 
medical malpractice liability action, a qualified specialist or medical 
expert is a person who has been so recognized by the Secretary or has 
received proper accreditation from the medical licensing board of any 
State, such that such qualified specialist or medical expert is 
recognized--
            (1) to be knowledgeable in the relevant issues involved in 
        the action;
            (2) to practice (or to have practiced) or to teach (or to 
        have taught) in the same area of health care or medicine that 
        is at issue in the action; and
            (3) in the case of an action against a physician, to be 
        board certified in a speciality relating to that area of 
        medicine.
    (c) Extension in Certain Instances.--
            (1) Unavailability of adequate medical records.--Subject to 
        paragraph (2), subsection (a) shall not apply with respect to a 
        claimant who brings a medical malpractice liability action 
        without submitting an affidavit described in such subsection 
        if, as of the time the claimant brings the action, the claimant 
        certifies that adequate medical records or other information 
        necessary to prepare the affidavit are unavailable.
            (2) Time limit.--In the case of an claimant who brings an 
        action for which paragraph (1) applies, the action shall be 
        dismissed unless the claimant submits the affidavit described 
        in subsection (a) not later than 120 days after commencement of 
        the action.
    (d) Medical Malpractice Arbitration Panels.--
            (1) Establishment.--The Secretary of Health and Human 
        Services shall provide for the establishment of medical 
        malpractice arbitration panels which shall hear and render a 
        decision on all medical malpractice claims.
            (2) Composition of arbitration panels.--Arbitration shall 
        be conducted by one or more arbitrators who--
                    (A) are qualified specialists or medical experts; 
                and
                    (B) are selected by agreement of the parties, or, 
                if the parties do not agree, who are qualified under 
                applicable State law and selected by the court.
            (3) Mandatory participation and dissatisfaction.--
                    (A) Mandatory participation.--Participation in 
                arbitration to resolve a medical malpractice claim is 
                mandatory, and shall be in lieu of any other 
                alternative dispute resolution method required by any 
                other law or by any contractual arrangement made by or 
                on behalf of the parties to the arbitration before the 
                commencement of the action.
                    (B) Dissatisfaction.--Any party dissatisfied with a 
                determination reached by a medical malpractice 
                arbitration panel with respect to a medical malpractice 
                claim as a result of such arbitration shall not be 
                bound by such determination, and may bring a civil 
                action in any Federal district court of competent 
                jurisdiction within the 30-day period beginning on the 
                date such determination was reached. The determination 
                of such arbitration, and all statements, offers, and 
                communications made during such arbitration, shall be 
                inadmissible for purposes of adjudicating such action.
            (4) Frivolousness.--
                    (A) Federal district court.--Except as provided in 
                subparagraph (B), if a medical malpractice arbitration 
                panel determines a medical malpractice claim to be 
                frivolous, the panel shall dismiss such claim. If such 
                claim is dismissed, the claimant may bring a civil 
                action in any Federal district court of competent 
                jurisdiction. If the defendant prevails in such action, 
                the court may, in its discretion and as the interests 
                of justice require, assess against the claimant a 
                reasonable attorney's fee and other litigation costs 
                and expenses (including expert fees) reasonably 
                incurred.
                    (B) Exception.--If a medical malpractice 
                arbitration panel is unable to determine if a medical 
                malpractice claim is frivolous, the panel may dismiss 
                such claim. If such claim is dismissed, the claimant 
                may bring a civil action in any Federal district court 
                of competent jurisdiction. If the claimant prevails in 
                such action, each party shall individually be 
                responsible for reasonable attorney's fee and other 
                litigation costs and expenses (including expert fees) 
                reasonably incurred.
            (5) Disclosure.--Each State shall disclose to residents of 
        the State the procedures relating to arbitration and formal 
        adjudication for resolution of medical malpractice claims.
            (6) Additional requirements.--The Attorney General, in 
        consultation with the Secretary for Health and Human Services, 
        shall proscribe regulations to ensure that medical malpractice 
        arbitration is carried out in a manner that--
                    (A) is affordable for the parties involved;
                    (B) encourages timely resolution of medical 
                malpractice claims;
                    (C) encourages the consistent and fair resolution 
                of such claims; and
                    (D) provides for reasonably convenient access to 
                dispute resolution.
    (e) Effective Date.--This section shall apply with respect to any 
medical malpractice claim that arises more than 180 days after the date 
of the enactment of this Act.

SEC. 5. PREEMPTION.

    The provisions of this Act shall preempt any State law to the 
extent such law is inconsistent with the provisions of this Act.
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