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.

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

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.

END