Summary: H.R.5400 — 98th Congress (1983-1984)All Information (Except Text)

There is one summary for H.R.5400. Bill summaries are authored by CRS.

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Introduced in House (04/10/1984)

Alternative Medical Liability Act - Amends part A (Hospital Insurance) of title XVIII (Medicare) of the Social Security Act to provide for an alternative liability system for malpractice.

Requires a health care provider, in order to participate in the alternative liability program, to participate, directly or through an insurance company which has agreed to be the compensation obligor with respect to that provider, in an assigned claims plan which meets the requirements of this paragraph in order to insure the payment of compensation benefits by compensation obligors. Permits entities (including insurance companies) in a State to organize and maintain, subject to approval and regulation by the State insurance regulator, an assigned claims plan and adopt rules for its operation consistent with this paragraph. Provides that if such a plan is not established or maintained in a State, the Secretary of Health and Human Services shall organize and maintain an assigned claims plan for the State. Requires each assigned claims plan to provide for the assessment of costs on a fair and equitable basis consistent with the liability system established by this Act. Prohibits an assigned claims plan from permitting an entity covered under the plan to withdraw from the plan retrospectively. Permits an injured individual entitled to compensation benefits from a compensation obligor to obtain them through the assigned claims plan if the initiating compensation obligor claims that it is unable to fulfill its obligation. Provides that where an assigned claims plan finds that a compensation obligor which is associated with such plan reasonably claims that it is unable to pay the compensation benefits it owes, the assigned claims plan shall promptly assign the claims to a member or members of the plan and notify the individual or individuals entitled to receive such benefits of the identity and address of the assignee or assignees. Permits any such assignee to seek payment from the compensation obligor or its successor of 120 percent of the costs and expenses in fulfilling the obligor's obligations. Defines the "compensation obligor", with respect to a personal injury, as the health care provider obligated to pay benefits for an injury and includes in such definition: (1) any other entity (including an insurance company) obligated for payment; and (2) any person joined with respect to the injury.

Prohibits an individual from bringing a civil action against a health care provider for a disease or injury arising from health care services provided pursuant to Medicare, Medicaid (title XIX of the Social Security Act), an armed forces' or veterans' health plan, the Federal employees' health benefits program, or any other health benefits program established under Federal law in any case where a provider which is participating in an assigned claims plan and is potentially liable for the injury, if the provider provides the individual (within a specified time period) with a written tender to pay compensation benefits in accordance with the alternative liability malpractice system. States that civil actions include any civil action which could have been brought against a compensation obligor with respect to recovery of damages relating to personal injury, whether based on: (1) negligence or gross negligence; (2) strict or absolute liability in tort; (3) breach of express or implied warranty or contract; (4) failure to discharge a duty to warn or instruct or to obtain consent; or (5) any other theory that is the basis for an award of damages for personal injury. States that civil actions do not include: (1) any action to recover for compensation benefits tendered under this Act; or (2) any action in the nature of a wrongful death action, but only in the case of such an action for losses accruing to survivors after the death of an injured individual and resulting from the death of an individual.

Permits a health care provider making a tender to join any person who is potentially liable for the injury. Provides that any disagreement as to any party's share of the costs shall be submitted to binding arbitration and that each party's share shall be based on the comparative fault of the parties. Sets forth provisions relating to the subrogation of parties.

Provides that the amount of compensation benefits payable with respect to a personal injury is equal to the net economic loss resulting from the injury, plus attorney's fees. Defines "net economic loss" and other terms used in defining "net economic loss."

Requires compensation benefits to be paid not later than 30 days after the date that reasonable proof of the fact and amount of net economic loss incurred is submitted to the initiating compensation obligor, except that payment may be made for expenses incurred over periods not exceeding 31 days within 15 days after the end of the period. Provides that if reasonable proof is supplied as to only a portion of net economic loss, and the portion totals $100 or more, the compensation benefits with respect to that portion shall be paid without regard to the remainder of the net economic loss. Sets the statute of limitations for a claim under this Act at five years.

Provides, upon the request of an injured individual or compensation obligor, for the disclosure of facts about, and the mental and physical examination of, the injured individual. Provides that in the case of a dispute as to the right of an injured individual or compensation obligor to discover information, a petition may be made to a court having jurisdiction over the matter for an order for discovery.

Provides that if a health care provider tenders compensation benefits with respect to an injured individual and there is a dispute between the compensation obligors and the injured individual respecting the determination of the amount of compensation benefits owing, except as otherwise provided for in this Act, application may be made to a court with appropriate jurisdiction for a declaration as to the amount of compensation benefits owed.

Permits an obligation to pay compensation benefits to be discharged by a settlement or lump sum payment, except that no such discharge shall be made with respect to an injury with a current value of net economic loss exceeding $5,000 unless a court having jurisdiction over the matter determines that the settlement is fair to the injured individual. Permits an agreement or judgment to be modified as to amounts to be paid in the future upon a finding that a material and substantial change of circumstances has occurred after the date the agreement or judgment was made, or that there is newly discovered evidence which would not have been known previously in the exercise of reasonable diligence.

Provides that the preceding provisions of this Act shall not apply to any personal injury occurring: (1) before January 1, 1987; or (2) in a State which has in effect an alternative medical liability law which the Secretary of Health and Human Services determines meets specified requirements. Sets forth requirements for a State alternative medical liability law.