[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 2662 Introduced in Senate (IS)]
111th CONGRESS
1st Session
S. 2662
To establish Federal standards for the resolution of health care
malpractice claims, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 2, 2009
Mr. Graham (for himself and Mr. Chambliss) introduced the following
bill; which was read twice and referred to the Committee on the
Judiciary
_______________________________________________________________________
A BILL
To establish Federal standards for the resolution of health care
malpractice claims, 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 ``Fair Resolution of Medical Liability
Disputes Act of 2009''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the health care and insurance industries are industries
affecting interstate commerce, and the health care malpractice
litigation systems throughout the United States affect
interstate commerce by contributing to the high cost of health
care and premiums for malpractice insurance purchased by health
care providers; and
(2) the Federal Government, as a direct provider of health
care and as a source of payment for health care, has a major
interest in health care and a demonstrated interest in
assessing the quality of care, access to care, and the costs of
care through the evaluative activities of several Federal
agencies.
SEC. 3. DEFINITIONS.
In this Act:
(1) Alternative dispute resolution system; adr.--The term
``alternative dispute resolution system'' or ``ADR'' means a
system established under this Act that provides for the
resolution of covered health care malpractice claims in a
manner other than through a civil action in Federal or State
court.
(2) Covered health care malpractice action.--The term
``covered health care malpractice action'' means a civil action
in which a covered health care malpractice claim is made
against a health care provider or health care professional.
(3) Covered health care malpractice claim.--The term
``covered health care malpractice claim'' means a malpractice
claim (excluding product liability claims) relating to the
provision of, or the failure to provide, health care services
involving a defendant covered health care professional or
provider.
(4) Covered health care professional.--The term ``covered
health care professional'' means an individual, including a
physician, nurse, chiropractor, nurse midwife, physical
therapist, social worker, or physician assistant--
(A) who provides health care services in a State;
(B) for whom individuals entitled to, or enrolled
for, benefits under part A of title XVIII of the Social
Security Act (42 U.S.C. 1395c et seq.), or enrolled for
benefits under part B of such Act (42 U.S.C. 1395j et
seq.) comprise not less than 25 percent of the total
patients of such professional, as determined by the
Secretary; and
(C) who is required by State law or regulation to
be licensed or certified by a State a condition for
providing such services in the State.
(5) Covered health care provider.--The term ``covered
health care provider'' means an organization or institution--
(A) that is engaged in the delivery of health care
services in a State;
(B) for which individuals entitled to, or enrolled
for, benefits under part A of title XVIII of the Social
Security Act (42 U.S.C. 1395c et seq.), or enrolled for
benefits under part B of such Act (42 U.S.C. 1395j et
seq.) comprise not less than 25 percent of the total
patients of such organization or institution, as
determined by the Secretary; and
(C) that is required by State law or regulation to
be licensed or certified by the State as a condition
for engaging in the delivery of such services in the
State.
(6) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(7) State.--The term ``State'' means each of the several
States, the District of Columbia, Puerto Rico, the Virgin
Islands, Guam, American Samoa, and the Northern Mariana
Islands.
SEC. 4. REQUIREMENT FOR INITIAL RESOLUTION OF ACTION THROUGH
ALTERNATIVE DISPUTE RESOLUTION.
(a) In General.--
(1) State cases.--A covered health care malpractice action
may not be brought in any State court during a calendar year
unless the covered health care malpractice claim that is the
subject of the action has been initially resolved under an
alternative dispute resolution system certified for the year by
the Attorney General under section 6(a), or, in the case of a
State in which such a system is not in effect for the year,
under the alternative Federal system established under section
6(b).
(2) Federal diversity actions.--A covered health care
malpractice action may not be brought in a Federal court under
section 1332 of title 28, United States Code, during a calendar
year unless the covered health care malpractice claim that is
the subject of the action has been initially resolved under the
alternative dispute resolution system described in paragraph
(1) that applied in the State whose law applies in such action.
(b) Initial Resolution of Claims Under ADR.--For purposes of
subsection (a), an action is ``initially resolved'' under an
alternative dispute resolution system if--
(1) the ADR reaches a decision on whether the defendant is
liable to the plaintiff for damages; and
(2) if the ADR determines that the defendant is liable, the
ADR reaches a decision regarding the amount of damages assessed
against the defendant.
(c) Procedures for Filing Actions.--
(1) Notice of intent to contest decision.--
(A) In general.--Not later than 60 days after a
decision is issued with respect to a covered health
care malpractice claim under an alternative dispute
resolution system, each party affected by the decision
shall submit a sealed statement to a court of competent
jurisdiction, selected by the arbitrator, indicating
whether the party intends to contest the decision.
(B) Sealed statements.--Each sealed statement
submitted to a court under subparagraph (A) shall
remain sealed until the earlier of--
(i) the date on which all affected parties
have submitted such statement; or
(ii) the submission deadline described in
subparagraph (A).
(2) Requirements for filing action.--A covered health care
malpractice action may not be brought by a party unless--
(A) such party files the action in a court of
competent jurisdiction not later than 90 days after the
decision resolving the covered health care malpractice
claim that is the subject of the action is issued under
the applicable alternative dispute resolution system;
and
(B) any party has filed the notice of intent
required by paragraph (1).
(3) Court of competent jurisdiction.--For purposes of this
subsection, the term ``court of competent jurisdiction''
means--
(A) with respect to actions filed in a State court,
the appropriate State trial court; and
(B) with respect to actions filed in a Federal
court, the appropriate United States district court.
(d) Legal Effect of Uncontested ADR Decision.--A decision reached
under an alternative dispute resolution system that is not contested
under subsection (c) shall, for purposes of enforcement by a court of
competent jurisdiction, have the same status in the court as the
verdict of a covered health care malpractice action adjudicated in a
State or Federal trial court.
(e) Standard of Judicial Review.--The standard of judicial review
of a claim filed under subsection (c) shall be de novo.
(f) Award of Costs and Attorneys' Fees After Initial ADR
Resolution.--
(1) In general.--In the case of a covered health care
malpractice action brought in any State or Federal court after
ADR, if the final judgment or order issued (exclusive of costs,
expenses, and attorneys' fees incurred after judgment or trial)
in the action is not more favorable to a party contesting the
ADR decision than the ADR decision, the opposing party may file
with the court, not later than 10 days after the final judgment
or order is issued, a petition for payment of costs and
expenses, including attorneys' fees, incurred with respect to
the claim or claims after the date of the ADR decision.
(2) Award of costs and expenses.--If the court finds, under
a petition filed under paragraph (1), with respect to a claim
or claims, that the judgment or order finally obtained is not
more favorable to the party contesting the ADR decision with
respect to the claim or claims than the ADR decision, the court
shall order the contesting party to pay the costs and expenses
of the opposing party, including attorneys' fees, incurred with
respect to the claim or claims after the date of the ADR
decision, unless the court finds that requiring the payment of
such costs and expenses would be manifestly unjust.
(3) Limitation.--Attorneys' fees awarded under this
subsection shall be in an amount reasonably attributable to the
claim or claims involved, calculated on the basis of an hourly
rate of the attorney, which may not exceed that which the court
considers acceptable in the community in which the attorney
practices law, taking into account the attorney's
qualifications and experience and the complexity of the case.
Attorneys' fees under this subsection may not exceed--
(A) the actual cost incurred by the party for
attorneys' fees payable to an attorney for services in
connection with the claim or claims; or
(B) if no such cost was incurred by the party due
to a contingency fee agreement, a reasonable cost that
would have been incurred by the party for noncontingent
attorneys' fees payable to an attorney for services in
connection with the claim or claims.
(g) Applicability.--The requirements of this section shall apply
only to each covered health care malpractice claim arising out of an
event (or events) occurring on or after the date that is 270 days after
the date of enactment of this Act.
SEC. 5. BASIC REQUIREMENTS FOR STATE ALTERNATIVE DISPUTE RESOLUTION
SYSTEMS.
The alternative dispute resolution system of a State meets the
requirements of this section if the system--
(1) applies to all covered health care malpractice claims
under the jurisdiction of the courts of such State;
(2) requires that a written opinion resolving the dispute
be issued not later than 180 days after the date on which each
party against whom the claim is filed has received notice of
the claim (other than in exceptional cases for which a longer
period is required for the issuance of such an opinion), and
that the opinion contain--
(A) findings of fact relating to the dispute; and
(B) a description of the costs incurred in
resolving the dispute under the system (including any
fees paid to the individuals hearing and resolving the
claim), together with an appropriate assessment of the
costs against any of the parties;
(3) requires individuals who hear and resolve claims under
the system to meet such qualifications as the State may require
(in accordance with regulations of the Attorney General);
(4) is approved by the State or by local governments in the
State;
(5) with respect to a State system that consists of
multiple dispute resolution procedures--
(A) permits the parties to a dispute to select the
procedure to be used for the resolution of the dispute
under the system; and
(B) if the parties do not agree on the procedure to
be used for the resolution of the dispute, assigns a
particular procedure to the parties;
(6) provides for the transmittal to the State agency
responsible for monitoring or disciplining health care
professionals and health care providers of any findings made
under the system that such a professional or provider committed
malpractice, unless, during the 90-day period beginning on the
date the system resolves the claim against the professional or
provider, the professional or provider brings an action
contesting the decision made under the system; and
(7) provides for the regular transmittal to the
Administrator of the Agency for Healthcare Research and Quality
of information on disputes resolved under the system, in a
manner that assures that the identity of the parties to a
dispute shall not be revealed.
SEC. 6. CERTIFICATION OF STATE SYSTEMS; APPLICABILITY OF ALTERNATIVE
FEDERAL SYSTEM.
(a) Certification.--
(1) In general.--Not later than 270 days after the date of
enactment of this Act and periodically thereafter, the Attorney
General, in consultation with the Secretary, shall determine
whether the alternative dispute resolution systems of each
State meet the requirements of this Act.
(2) Basis for certification.--The Attorney General shall
certify the alternative dispute resolution system of a State
under this subsection for a calendar year if the Attorney
General determines under paragraph (1) that such system meets
the requirements of section 5.
(b) Applicability of Alternative Federal System.--
(1) Establishment and applicability.--Not later than 270
days after the date of enactment of this Act, the Attorney
General, in consultation with the Secretary, shall establish by
rulemaking an alternative Federal ADR system for the resolution
of covered health care malpractice claims during a calendar
year, to be used for a calendar year in States that do not have
an alternative dispute resolution system that is certified
under subsection (a) for such year.
(2) Requirements for system.--Under the alternative Federal
ADR system established under paragraph (1)--
(A) paragraphs (1), (2), (6), and (7) of section 5
shall apply to claims brought under such system;
(B) the claims brought under such system shall be
heard and resolved by medical and legal experts
appointed as arbitrators by the Attorney General, in
consultation with the Secretary; and
(C) with respect to a State in which such system is
in effect, the Attorney General may (at the request of
such State) modify the system to take into account the
existence of dispute resolution procedures in the State
that affect the resolution of health care malpractice
claims.
(3) Treatment of states with alternative system in
effect.--If the alternative Federal ADR system established
under this subsection is applied with respect to a State for a
calendar year such State shall reimburse the United States, at
such time and in such manner as the Secretary may require, for
the costs incurred by the United States during such year as a
result of the application of the system with respect to the
State.
SEC. 7. GAO STUDY OF PRIVATE LITIGATION INSURANCE.
The Comptroller General of the United States shall--
(1) undertake a study of the effectiveness of private
litigation insurance markets, such as those in the United
Kingdom and Germany, in providing affordable access to courts,
evaluating the merit of prospective claims, and ensuring that
prevailing parties in ``loser pays'' systems are reimbursed for
attorneys' fees; and
(2) not later than 270 days after the date of enactment of
this Act, submit to Congress a report describing the results of
such study.
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