An Act To Establish the Patient Compensation System Act
Sec. 1. 5 MRSA §12004-G, sub-§21-C is enacted to read:
|Insurance||Patient Compensation Board||Legislative Per Diem and Expenses Only||24 MRSA §2994|
Sec. 2. 24 MRSA c. 21, sub-c. 11 is enacted to read:
PATIENT COMPENSATION SYSTEM ACT
§ 2991. Short title
This subchapter may be known and cited as "the Patient Compensation System Act."
§ 2992. Definitions
As used in this subchapter, unless the context otherwise indicates, the following terms have the following meanings.
"Medical injury" includes consideration of an alternate course of treatment only if the personal injury or death could have been avoided through a different but equally effective manner of treatment for the underlying condition. "Medical injury" includes consideration only of information that would have been known to an experienced specialist or readily available to an optimal system of care at the time of the medical treatment.
"Medical injury" does not include a personal injury or wrongful death if the medical treatment conformed with national practice standards for the care and treatment of patients as determined by the independent medical review panel.
§ 2993. Patient Compensation System
The Patient Compensation System is established to provide a method for patients to be compensated for medical injuries. The system is administered by the department.
§ 2994. Patient Compensation Board
The Patient Compensation Board is established to govern the system.
The board shall annually elect from its membership one member to serve as chair of the board and one member to serve as vice-chair.
§ 2995. Committees
The board shall create a Medical Review Committee and a Compensation Committee. The board may create additional committees as necessary to assist in the performance of its duties and responsibilities. Each committee is composed of 3 board members chosen by a majority vote of the board.
(1) A compensation schedule, formulated so that the aggregate cost of medical malpractice and the aggregate of participating provider fees are equal to or less than the prior fiscal year's aggregate cost of medical malpractice. Compensation awards for each injury must be no less than the average indemnity payment reported by the Physician Insurers Association of America or a successor organization for similar medical injuries with similar severity. The committee shall annually review the compensation schedule and, if necessary, recommend a revised schedule so that a projected increase in the upcoming fiscal year's aggregate cost of medical malpractice does not exceed the percentage change from the prior year in the medical care component of the Consumer Price Index for All Urban Consumers as compiled by the Bureau of Labor Statistics, United States Department of Labor;
(2) Guidelines for the payment of compensation awards through periodic payments; and
(3) Guidelines for the apportionment of the cost of compensation among multiple providers, which must be based on the historical apportionment among multiple providers for similar injuries with similar severity.
§ 2996. Independent medical review panels
The chief medical officer of the system shall convene an independent medical review panel to evaluate each application to determine whether a medical injury occurred. Each panel must be composed of an odd number of at least 3 panelists chosen from a list of panelists that represent the same or a similar specialty as the provider and convenes, either in person or by teleconference, at the call of the chief medical officer. Each panelist must be paid a stipend as determined by the board for service on the panel. In order to expedite the review of applications, the chief medical officer may, whenever practicable, group related applications together for consideration by a single panel.
§ 2997. Conflict of interest
A board member, panelist of an independent medical review panel or employee of the system may not engage in any conduct that constitutes a conflict of interest. For purposes of this section, "conflict of interest" means a situation in which the private interest of a board member, panelist or employee could influence that person's judgment in the performance of that person's duties under this subchapter. A board member, panelist or employee shall immediately disclose in writing the presence of a conflict of interest when the board member, panelist or employee knows or reasonably should have known that the factual circumstances surrounding a particular application constitute or constituted a conflict of interest. A board member, panelist or employee who violates this section is subject to disciplinary action as determined by the board. "Conflict of interest" includes, but is not limited to:
§ 2998. Rulemaking
The board shall adopt routine technical rules pursuant to Title 5, chapter 375, subchapter 2-A to implement and administer this subchapter, including rules addressing:
§ 2999. Filing of applications
§ 2999-A. Disposition of applications
Within 30 days after the completion of the investigation under this subsection, the chief medical officer shall convene an independent medical review panel to determine whether the application constitutes a medical injury. The independent medical review panel must have access to all information, with names redacted, obtained by the office in the course of the investigation of the application and shall make a written determination, which must be immediately provided to the applicant and the participating provider.
(1) The medical treatment conformed to national practice standards for the care and treatment of patients, then the application must be dismissed and the participating provider is not held responsible for the applicant's medical injury; or
(2) All of the following criteria exist by a preponderance of the evidence, then the panel shall report that the application constitutes a medical injury:
(a) The participating provider performed a medical treatment on the applicant;
(b) The applicant suffered a personal injury or wrongful death;
(c) The medical treatment was the proximate cause of the personal injury or wrongful death; and
(d) One or more of the following has occurred:
(i) An accepted medical treatment was not used;
(ii) An accepted medical treatment was used but was executed in a substandard fashion; and
(iii) An accepted medical treatment was used, but, as determined by a prospective analysis, personal injury or wrongful death could have been avoided by using a less hazardous but equally effective medical treatment.
§ 2999-B. Review by Superior Court; appellate review; extensions of time
§ 2999-C. Expenses of administration; opt out
§ 2999-D. Notice to patients of participation in the system
§ 2999-E. Annual report
The board annually, beginning on October 1, 2016, shall submit to the Department of Professional and Financial Regulation, the Governor and the joint standing committee of the Legislature having jurisdiction over insurance matters a report that describes the filing and disposition of applications in the preceding fiscal year. The report must include, in the aggregate, the number of applications, the disposition of the applications and the compensation awarded.
§ 2999-F. Patient Compensation System Fund
The Patient Compensation System Fund, referred to in this section as "the fund," is established within the department as a nonlapsing fund for the purposes specified in this subchapter. The fund is funded from the fees collected under section 2999-C and from other funds accepted by the department or allocated or appropriated by the Legislature. Allocations from the fund must be made for expenses of the administration of this subchapter, including the costs the board may incur for staff, administrative support services, legal representation and contracted services.
§ 2999-G. Exclusive remedy
The rights and remedies granted by this subchapter due to a personal injury or wrongful death exclude all other rights and remedies of the applicant and the applicant's personal representative, parents, dependents and next of kin against any participating provider directly involved in providing the medical treatment resulting in the injury or death, arising out of or related to a professional negligence claim, whether in tort or in contract, with respect to the injury or death. Notwithstanding any other law, this subchapter applies exclusively to applications submitted under this subchapter.
§ 2999-H. Early offer
This subchapter does not prohibit a self-insured provider or an insurer from providing an early offer of settlement or apology in satisfaction of a medical injury. A person who accepts a settlement or apology offer under this section may not file an application under this subchapter for the same medical injury. If an application has been filed before the offer of settlement or apology, the acceptance of the settlement or apology offer by the applicant results in the withdrawal of the application.
§ 2999-I. Wrongful death
Compensation may not be provided under this subchapter for an application that requests an investigation of an alleged wrongful death due to medical treatment if that application is filed by an adult child on behalf of the adult child's parent or by a parent on behalf of the parent's adult child.
Sec. 3. Staggered terms. Notwithstanding the Maine Revised Statutes, Title 24, section 2994, subsection 2, of the initial appointments to the Patient Compensation Board, the 5 members appointed by the Governor under Title 24, section 2994, subsection 1, paragraphs A to E are appointed to 2-year terms, and the remaining 6 members are appointed to 3-year terms.
Sec. 4. Application. This Act applies to medical incidents for which a notice of intent to initiate litigation has not been mailed before July 1, 2016.
This bill establishes within the Department of Professional and Financial Regulation the Patient Compensation System, which allows a person who has suffered a medical injury to receive compensation outside of the court system. The Patient Compensation System is governed by a board of medical, legal, patient and business representatives. The bill establishes 3 offices within the system to provide medical review of claims, compensation allocations and quality review, as well as 2 committees to provide guidance in the selection of medical review panelists and the design of compensation schedules. The bill also creates the Patient Compensation System Fund, which is funded by fees paid by physicians participating in the system.