text: SECTION 1. SHORT TITLE.
  
      This Act may be cited as the ``Health Care OverUse Reform Today Act 
  (HealthCOURT Act) of 2011''.
  
  SEC. 2. LIMITATION ON RECOVERY IN A HEALTH CARE LAWSUIT BASED ON 
                COMPLIANCE WITH BEST PRACTICE GUIDELINES.
  
      (a) Selection and Issuance of Best Practices Guidelines.--
              (1) In general.--The Secretary of Health and Human Services 
          (in this section referred to as the ``Secretary'') shall 
          provide for the selection and issuance of best practice 
          guidelines for treatment of medical conditions (each in this 
          subsection referred to as a ``guideline'') in accordance with 
          paragraphs (2) and (3).
              (2) Development process.--Not later than 90 days after the 
          date of enactment of this Act, the Secretary shall enter into a 
          contract with a qualified physician consensus-building 
          organization (such as the Physician Consortium for Performance 
          Improvement), in concert and agreement with physician specialty 
          organizations, to develop guidelines. The contract shall 
          require that the organization submit guidelines to the agency 
          not later than 18 months after the date of enactment of this 
          Act.
              (3) Issuance.--
                      (A) In general.--Not later than 2 years after the 
                  date of the enactment of this Act, the Secretary shall, 
                  after notice and opportunity for public comment, make a 
                  rule that provides for the establishment of the 
                  guidelines submitted under paragraph (2).
                      (B) Limitation.--The Secretary may not make a rule 
                  that includes guidelines other than those submitted 
                  under paragraph (2).
                      (C) Dissemination.--The Secretary shall post such 
                  guidelines on the public Internet web page of the 
                  Department of Health and Human Services.
              (4) Maintenance.--Not later than 4 years after the date of 
          enactment of this Act, and every 2 years thereafter, the 
          Secretary shall review the guidelines and shall, as necessary, 
          enter into contracts similar to the contract described in 
          paragraph (2), and issue guidelines in a manner similar to the 
          issuance of guidelines under paragraph (3).
      (b) Limitation on Damages.--
              (1) Limitation on noneconomic damages.--In any health care 
          lawsuit, a court may not award noneconomic damages with respect 
          to treatment that is consistent with a guideline issued under 
          subsection (a).
              (2) Limitation on punitive damages.--In any health care 
          lawsuit, no punitive damages may be awarded against a health 
          care provider based on a claim that such treatment caused the 
          claimant harm if--
                      (A) such treatment was subject to quality review by 
                  a qualified physician consensus-building organization 
                  and has been found to be safe, effective, and 
                  appropriate;
                      (B) such treatment was approved in a guideline that 
                  underwent full review by such organization, public 
                  comment, approval by the Secretary, and dissemination 
                  as described in subparagraph (a); or
                      (C) such medical treatment is generally recognized 
                  among qualified experts (including medical providers 
                  and relevant physician specialty organizations) as 
                  safe, effective, and appropriate.
      (c) Use.--
              (1) Introduction as evidence.--Guidelines established in a 
          rule made under subsection (a) may not be introduced as 
          evidence of negligence or deviation in the standard of care in 
          any health care lawsuit unless they have previously been 
          introduced by the defendant.
              (2) No presumption of negligence.--There shall be no 
          presumption of negligence if a health care provider provides 
          treatment in a manner inconsistent with such guidelines.
      (d) Construction.--Nothing in this section shall be construed as 
  preventing a State from--
              (1) replacing their current medical malpractice rules with 
          rules that rely, as a defense, upon a health care provider's 
          compliance with a guideline issued under subsection (a); or
              (2) applying additional guidelines or safe-harbors that are 
          in addition to, but not in lieu of, the guidelines issued under 
          subsection (a).
  
  SEC. 3. STATE GRANTS TO CREATE ADMINISTRATIVE HEALTH CARE TRIBUNALS.
  
      Part P of title III of the Public Health Service Act (42 U.S.C. 
  280g et seq.) is amended by adding at the end the following:
  
  ``SEC. 399T. STATE GRANTS TO CREATE ADMINISTRATIVE HEALTH CARE 
                TRIBUNALS.
  
      ``(a) In General.--The Secretary may award grants to States for the 
  development, implementation, and evaluation of administrative health 
  care tribunals that comply with this section, for the resolution of 
  disputes concerning injuries allegedly caused by health care providers.
      ``(b) Conditions for Demonstration Grants.--To be eligible to 
  receive a grant under this section, a State shall submit to the 
  Secretary an application at such time, in such manner, and containing 
  such information as may be required by the Secretary. A grant shall be 
  awarded under this section on such terms and conditions as the 
  Secretary determines appropriate.
      ``(c) Representation by Counsel.--A State that receives a grant 
  under this section may not preclude any party to a dispute before an 
  administrative health care tribunal operated under such grant from 
  obtaining legal representation during any review by the expert panel 
  under subsection (d), the administrative health care tribunal under 
  subsection (e), or a State court under subsection (f).
      ``(d) Expert Panel Review and Early Offer Guidelines.--
              ``(1) In general.--Prior to the submission of any dispute 
          concerning injuries allegedly caused by health care providers 
          to an administrative health care tribunal under this section, 
          such allegations shall first be reviewed by an expert panel.
              ``(2) Composition.--
                      ``(A) In general.--The members of each expert panel 
                  under this subsection shall be appointed by the head of 
                  the State agency responsible for health. Each expert 
                  panel shall be composed of no fewer than 3 members and 
                  not more than 7 members. At least one-half of such 
                  members shall be medical experts (either physicians or 
                  health care professionals).
                      ``(B) Licensure and expertise.--Each physician or 
                  health care professional appointed to an expert panel 
                  under subparagraph (A) shall--
                              ``(i) be appropriately credentialed or 
                          licensed in 1 or more States to deliver health 
                          care services; and
                              ``(ii) typically treat the condition, make 
                          the diagnosis, or provide the type of treatment 
                          that is under review.
                      ``(C) Independence.--
                              ``(i) In general.--Subject to clause (ii), 
                          each individual appointed to an expert panel 
                          under this paragraph shall--
                                      ``(I) not have a material familial, 
                                  financial, or professional relationship 
                                  with a party involved in the dispute 
                                  reviewed by the panel; and
                                      ``(II) not otherwise have a 
                                  conflict of interest with such a party.
                              ``(ii) Exception.--Nothing in clause (i) 
                          shall be construed to prohibit an individual 
                          who has staff privileges at an institution 
                          where the treatment involved in the dispute was 
                          provided from serving as a member of an expert 
                          panel merely on the basis of such affiliation, 
                          if the affiliation is disclosed to the parties 
                          and neither party objects.
                      ``(D) Practicing health care professional in same 
                  field.--
                              ``(i) In general.--In a dispute before an 
                          expert panel that involves treatment, or the 
                          provision of items or services--
                                      ``(I) by a physician, the medical 
                                  experts on the expert panel shall be 
                                  practicing physicians (allopathic or 
                                  osteopathic) of the same or similar 
                                  specialty as a physician who typically 
                                  treats the condition, makes the 
                                  diagnosis, or provides the type of 
                                  treatment under review; or
                                      ``(II) by a health care 
                                  professional other than a physician, at 
                                  least two medical experts on the expert 
                                  panel shall be practicing physicians 
                                  (allopathic or osteopathic) of the same 
                                  or similar specialty as the health care 
                                  professional who typically treats the 
                                  condition, makes the diagnosis, or 
                                  provides the type of treatment under 
                                  review, and, if determined appropriate 
                                  by the State agency, an additional 
                                  medical expert shall be a practicing 
                                  health care professional (other than 
                                  such a physician) of such a same or 
                                  similar specialty.
                              ``(ii) Practicing defined.--In this 
                          paragraph, the term `practicing' means, with 
                          respect to an individual who is a physician or 
                          other health care professional, that the 
                          individual provides health care services to 
                          individual patients on average at least 2 days 
                          a week.
                      ``(E) Pediatric expertise.--In the case of dispute 
                  relating to a child, at least 1 medical expert on the 
                  expert panel shall have expertise described in 
                  subparagraph (D)(i) in pediatrics.
              ``(3) Determination.--After a review under paragraph (1), 
          an expert panel shall make a determination as to the liability 
          of the parties involved and compensation.
              ``(4) Acceptance.--If the parties to a dispute before an 
          expert panel under this subsection accept the determination of 
          the expert panel concerning liability and compensation, such 
          compensation shall be paid to the claimant and the claimant 
          shall agree to forgo any further action against the health care 
          providers involved.
              ``(5) Failure to accept.--If any party decides not to 
          accept the expert panel's determination, the matter shall be 
          referred to an administrative health care tribunal created 
          pursuant to this section.
      ``(e) Administrative Health Care Tribunals.--
              ``(1) In general.--Upon the failure of any party to accept 
          the determination of an expert panel under subsection (d), the 
          parties shall have the right to request a hearing concerning 
          the liability or compensation involved by an administrative 
          health care tribunal established by the State involved.
              ``(2) Requirements.--In establishing an administrative 
          health care tribunal under this section, a State shall--
                      ``(A) ensure that such tribunals are presided over 
                  by special judges with health care expertise;
                      ``(B) provide authority to such judges to make 
                  binding rulings, rendered in written decisions, on 
                  standards of care, causation, compensation, and related 
                  issues with reliance on independent expert witnesses 
                  commissioned by the tribunal;
                      ``(C) establish gross negligence as the legal 
                  standard for the tribunal;
                      ``(D) allow the admission into evidence of the 
                  recommendation made by the expert panel under 
                  subsection (d); and
                      ``(E) provide for an appeals process to allow for 
                  review of decisions by State courts.
      ``(f) Review by State Court After Exhaustion of Administrative 
  Remedies.--
              ``(1) Right to file.--If any party to a dispute before a 
          health care tribunal under subsection (e) is not satisfied with 
          the determinations of the tribunal, the party shall have the 
          right to file their claim in a State court of competent 
          jurisdiction.
              ``(2) Forfeit of awards.--Any party filing an action in a 
          State court in accordance with paragraph (1) shall forfeit any 
          compensation award made under subsection (e).
              ``(3) Admissibility.--The determinations of the expert 
          panel and the administrative health care tribunal pursuant to 
          subsections (d) and (e) with respect to a State court 
          proceeding under paragraph (1) shall be admissible into 
          evidence in any such State court proceeding.
      ``(g) Definition.--In this section, the term `health care provider' 
  means any person or entity required by State or Federal laws or 
  regulations to be licensed, registered, or certified to provide health 
  care services, and being either so licensed, registered, or certified, 
  or exempted from such requirement by other statute or regulation.
      ``(h) Authorization of Appropriations.--There are authorized to be 
  appropriated for any fiscal year such sums as may be necessary for 
  purposes of making grants to States under this section.''.
  
  SEC. 4. DEFINITIONS.
  
      In this Act:
              (1) Health care lawsuit.--The term ``health care lawsuit'' 
          means any health care liability claim concerning the provision 
          of health care goods or services brought in a Federal court or 
          in a State court or pursuant to an alternative dispute 
          resolution system, if such claim concerns items or services 
          with respect to which payment is made under title XVIII, title 
          XIX, or title XXI of the Social Security Act or for which the 
          claimant receives a Federal tax benefit, against a health care 
          provider, a health care organization, or the manufacturer, 
          distributor, supplier, marketer, promoter, or seller of a 
          medical product, regardless of the theory of liability on which 
          the claim is based, or the number of claimants, plaintiffs, 
          defendants, or other parties, or the number of claims or causes 
          of action, in which the claimant alleges a health care 
          liability claim. Such term does not include a claim or action 
          which is based on criminal liability; which seeks civil fines 
          or penalties paid to Federal government; or which is grounded 
          in antitrust.
              (2) Noneconomic damages.--The term ``noneconomic damages'' 
          means damages for losses for physical and emotional pain, 
          suffering, inconvenience, physical impairment, mental anguish, 
          disfigurement, loss of enjoyment of life, loss of society and 
          companionship, loss of consortium, hedonic damages, injury to 
          reputation, and any other nonpecuniary losses.
              (3) Punitive damages.--The term ``punitive damages'' means 
          damages awarded, for the purpose of punishment or deterrence, 
          and not solely for compensatory purposes, against a health care 
          provider. Punitive damages are neither economic nor noneconomic 
          damages.
              (4) Medical treatment.--The term ``medical treatment'' 
          means the provision of any goods or services by a health care 
          provider or by any individual working under the supervision of 
          a health care provider, that relates to the diagnosis, 
          prevention, or treatment of any human disease or impairment, or 
          the assessment or care of the health of human beings.
              (5) Health care provider.--The term ``health care 
          provider'' means any person or entity required by State or 
          Federal laws or regulations to be licensed, registered, or 
          certified to provide health care services, and being either so 
          licensed, registered, or certified, or exempted from such 
          requirement by other statute or regulation.
              (6) Federal tax benefit.--A claimant shall be treated as 
          receiving a Federal tax benefit with respect to payment for 
          items or services if--
                      (A) such payment is compensation by insurance--
                              (i) which constitutes medical care, and
                              (ii) with respect to the payment of 
                          premiums for which the claimant, or the 
                          employer of the claimant, was allowed an 
                          exclusion from gross income, a deduction, or a 
                          credit for Federal income tax purposes,
                      (B) a deduction was allowed with respect to such 
                  payment for Federal income tax purposes, or
                      (C) such payment was from an Archer MSA (as defined 
                  in section 220(d) of the Internal Revenue Code of 
                  1986), a health savings account (as defined in section 
                  223(d) of such Code), a flexible spending arrangement 
                  (as defined in section 106(c)(2) of such Code), or a 
                  health reimbursement arrangement which is treated as 
                  employer-provided coverage under an accident or health 
                  plan for purposes of section 106 of such Code.
target: Health Care OverUse Reform Today Act (HealthCOURT Act) of 2011 - Requires the Secretary of Health and Human Services (HHS) to provide for the selection and issuance of best practice guidelines for treatment of medical conditions.
  
  Requires the Secretary to contract with a qualified physician consensus-building organization to develop guidelines and issue a rule that provides for the establishment of such guidelines. Prohibits the Secretary from making a rule that includes guidelines other than those submitted by such organization.
  
  Requires the Secretary to routinely review guidelines and, as necessary, enter into additional contracts to issue guidelines.
  
  Prohibits a court from awarding noneconomic damages or punitive damages in any health care lawsuit with respect to treatment that is consistent with a guideline issued under this Act.
  
  Prohibits guidelines from being introduced as evidence of negligence or deviation in the standard of care in any health care lawsuit unless such guidelines have previously been introduced by the defendant.
  
  Declares that there shall be no presumption of negligence if a health care provider provides treatment in a manner inconsistent with such guidelines.
  
  Amends the Public Health Service Act to authorize the Secretary to award grants to states for the development, implementation, and evaluation of administrative health care tribunals for the resolution of disputes concerning injuries allegedly caused by health care providers. Sets forth provisions governing the operation of such tribunals, including requiring a review of allegations by an expert panel to assess liability.
feat_title: To establish performance-based quality measures, to establish limitations on recovery in health care lawsuits based on compliance with best practice guidelines, and to provide grants to States for administrative health care tribunals.