Scope. The legislation narrowly defines "medical malpractice action" to cover "licensed physicians and health professionals" for only cases involving medical malpractice. These definitions are intended to include doctors, hospitals, nurses, and other health professionals who pay medical malpractice insurance premiums. See, Sec.105(2).

The Republican legislation is broadly drafted to include HMO’s, insurance companies, nursing homes, and drug and device manufacturers for a broad range of liabilities. It is still unknown to what extent H.R. 5 protects the wrongdoings of these companies.

Title I

Sec. 101 - Statute of Limitations. This section limits the amount of time during which a patient can file a medical malpractice action to the later of three years from the date of injury or three years from the date the patient discovers (or through the use of reasonable diligence should have discovered) the injury. Children under the age of 18 have the later of three years from their eighteenth birthday or three years from the date the patient discovers (or through the use of reasonable diligence should have discovered) the injury.

The Republican legislation limits it to the earlier of three years from the date an injury "manifests" itself or one year from the date discovered, but in no event can it exceed three years. This makes it more akin to a statute of repose than a statute of limitations. H.R. 5 also establishes a statute of repose for children injured under the age of six that is the later of three years from the date of manifestation or prior to the minor’s eighth birthday.

Sec. 102 - Attorney Certificate of Merit. This section reduces the occurrence of frivolous lawsuits by requiring all plaintiff attorneys who file a medical malpractice action to certify that the case is meritorious. Attorneys who erroneously file such a certificate are subject to strict civil penalties modeled after Rule 11 of the Federal Rules of Civil Procedure.

The Republican legislation does not have a provision that directly addresses the filing of frivolous lawsuits. By contrast, H.R. 5 caps the damages of injured patients in meritorious lawsuits.

Sec. 103 - Punitive Damages. This section limits the circumstances under which a claimant can seek punitive damages in a medical malpractice action. It also allocates 50% of any punitive damages that are awarded to a Patient Safety Fund managed by the Department of Health and Human Services (HHS). HHS will administer the Patient Safety Fund through the Agency for Healthcare Research and Quality. The Secretary will promulgate regulations that will establish programs and procedures to carry out this objective. See also, Sec. 221-223.

The Republican legislation raises the evidentiary standard, provides an exemption for FDA approved drugs or devices, and caps punitive damages at the greater of twice the economic damages or $250,000.

Sec. 104 - Reduction in Premiums. This section requires medical malpractice insurance companies to annually project the savings that will result from Title I of the bill. Insurance companies must then develop and implement a plan to annually dedicate at least 50% of those savings to reduce the insurance premiums that medical professionals pay. Insurance companies must report these activities to HHS annually. The section provides for civil penalties for the non-compliance of insurance companies.

Title II

Sec. 201-202 - Independent Advisory Commission on Medical Malpractice Insurance. This section establishes the national Independent Advisory Commission on Medical Malpractice Insurance. The Commission must evaluate the causes and scope of the recent and dramatic increases in medical malpractice insurance premiums, formulate additional proposals to reduce those premiums, and make recommendations to avoid any such increases in the future. In formulating its proposals, the Commission must, at a minimum, consider a variety of enumerated factors.

The Republican legislation only addresses tort reform and does not examine other causes of malpractice premium costs.

Sec. 203 - Report. This section requires the Commission to file an initial report with Congress within 180 days of enactment and to file annual reports until the Commission terminates.

Sec. 204 - Membership. This section specifically establishes the number and type of commissioners that the Comptroller General of the United States must appoint to the Commission. Generally, the membership of the Commission will include individuals with national recognition for their expertise in health finance and economics, actuarial science, medical malpractice insurance, insurance regulation, health care law, health care policy, health care access, allopathic and osteopathic physicians, other providers of health care services, patient advocacy, and other related fields, who provide a mix of different professionals, broad geographic representations, and a balance between urban and rural representatives.

Sec. 207 - Authorization of Appropriations. This section authorizes that such sums be appropriated to the Commission for five fiscal years.

Title III

Sec. 301 - Grants and Contracts Regarding Health Provider Shortages. This section authorizes the Secretary of HHS to award grants or contracts through the Health Resources Services and Administration (HRSA) to geographic areas that have a shortage of one or more types of health providers as a result of dramatic increases in malpractice insurance premiums.

The Republican legislation does not give providers any direct assistance with their rising malpractice premiums. The sole remedy of H.R. 5 is tort reform.

Sec. 302 - Health Professional Assignments to Trauma Centers. This section amends the Public Health Service Act to authorize the Secretary to send physicians from the National Health Service Corps to trauma centers that are in danger of closing (or losing their trauma center status) due to dramatic increases in malpractice premiums.

The Republican legislation does not directly address the access to care issue caused by rising malpractice premiums. The sole remedy of H.R. 5 is tort reform.

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