42 U.S.C. § 11112 — Standards for professional review ac-

Page 8115 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11112 before the effective date of the State law, which may not be earlier than the date of the enactment of that law. (Pub. L. 99–660, title IV, § 411, Nov. 14, 1986, 100 Stat. 3784; Pub. L. 100–177, title IV, § 402(c), as added Pub. L. 101–239, title VI, § 6103(e)(6)(A), Dec. 19, 1989, 103 Stat. 2208.) Editorial Notes REFERENCES IN TEXT The Civil Rights Act of 1964, referred to in subsec. (a)(1), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241, which is classified principally to subchapters II to IX (§ 2000a et seq.) of chapter 21 of this title. Title VII of this Act relates to equal employment opportunities, and is clas- sified generally to subchapter VI (§ 2000e et seq.) of chapter 21 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of this title and Tables. The Civil Rights Acts, referred to in subsec. (a)(1), are classified generally to chapter 21 (§ 1981 et seq.) of this title. AMENDMENTS 1989—Subsec. (c)(2)(B), (C). Pub. L. 101–239 added Pub. L. 100–177, § 402(c), see 1987 Amendment note below. 1987—Subsec. (c)(2)(B), (C). Pub. L. 100–177, § 402(c), as added by Pub. L. 101–239, redesignated subpar. (C) as (B), struck out ‘‘subparagraphs (A) and (B)’’ after ‘‘for purposes of’’, and struck out former subpar. (B) which read as follows: ‘‘Subsection (a) of this section shall not apply to State laws in a State for actions commenced on or after October 14, 1989, if the State by legislation elects such treatment.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100–177 effective Nov. 14, 1986, see section 402(d) of Pub. L. 100–177, as renumbered and amended, set out as a note under section 11137 of this title. EFFECTIVE DATE Pub. L. 99–660, title IV, § 416, Nov. 14, 1986, 100 Stat. 3788, provided that: ‘‘This part [part A (§§ 411–416) of title IV of Pub. L. 99–660, enacting this subchapter] shall apply to professional review actions commenced on or after the date of the enactment of this Act [Nov. 14, 1986].’’ § 11112. Standards for professional review ac- tions (a) In general For purposes of the protection set forth in sec- tion 11111(a) of this title, a professional review action must be taken— (1) in the reasonable belief that the action was in the furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing proce- dures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3). A professional review action shall be presumed to have met the preceding standards necessary for the protection set out in section 11111(a) of this title unless the presumption is rebutted by a preponderance of the evidence. (b) Adequate notice and hearing A health care entity is deemed to have met the adequate notice and hearing requirement of subsection (a)(3) with respect to a physician if the following conditions are met (or are waived voluntarily by the physician): (1) Notice of proposed action The physician has been given notice stat- ing— (A)(i) that a professional review action has been proposed to be taken against the physi- cian, (ii) reasons for the proposed action, (B)(i) that the physician has the right to request a hearing on the proposed action, (ii) any time limit (of not less than 30 days) within which to request such a hear- ing, and (C) a summary of the rights in the hearing under paragraph (3). (2) Notice of hearing If a hearing is requested on a timely basis under paragraph (1)(B), the physician involved must be given notice stating— (A) the place, time, and date, of the hear- ing, which date shall not be less than 30 days after the date of the notice, and (B) a list of the witnesses (if any) expected to testify at the hearing on behalf of the pro- fessional review body. (3) Conduct of hearing and notice If a hearing is requested on a timely basis under paragraph (1)(B)— (A) subject to subparagraph (B), the hear- ing shall be held (as determined by the health care entity)— (i) before an arbitrator mutually accept- able to the physician and the health care entity, (ii) before a hearing officer who is ap- pointed by the entity and who is not in di- rect economic competition with the physi- cian involved, or (iii) before a panel of individuals who are appointed by the entity and are not in di- rect economic competition with the physi- cian involved; (B) the right to the hearing may be for- feited if the physician fails, without good cause, to appear; (C) in the hearing the physician involved has the right— (i) to representation by an attorney or other person of the physician’s choice, (ii) to have a record made of the pro- ceedings, copies of which may be obtained by the physician upon payment of any rea- sonable charges associated with the prepa- ration thereof, (iii) to call, examine, and cross-examine witnesses, (iv) to present evidence determined to be relevant by the hearing officer, regardless of its admissibility in a court of law, and (v) to submit a written statement at the close of the hearing; and Page 8116 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 11113 (D) upon completion of the hearing, the physician involved has the right— (i) to receive the written recommenda- tion of the arbitrator, officer, or panel, in- cluding a statement of the basis for the recommendations, and (ii) to receive a written decision of the health care entity, including a statement of the basis for the decision. A professional review body’s failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the stand- ards of subsection (a)(3). (c) Adequate procedures in investigations or health emergencies For purposes of section 11111(a) of this title, nothing in this section shall be construed as— (1) requiring the procedures referred to in subsection (a)(3)— (A) where there is no adverse professional review action taken, or (B) in the case of a suspension or restric- tion of clinical privileges, for a period of not longer than 14 days, during which an inves- tigation is being conducted to determine the need for a professional review action; or (2) precluding an immediate suspension or restriction of clinical privileges, subject to subsequent notice and hearing or other ade- quate procedures, where the failure to take such an action may result in an imminent danger to the health of any individual. (Pub. L. 99–660, title IV, § 412, Nov. 14, 1986, 100 Stat. 3785.) § 11113. Payment of reasonable attorneys’ fees and costs in defense of suit In any suit brought against a defendant, to the extent that a defendant has met the standards set forth under section 11112(a) of this title and the defendant substantially prevails, the court shall, at the conclusion of the action, award to a substantially prevailing party defending against any such claim the cost of the suit at- tributable to such claim, including a reasonable attorney’s fee, if the claim, or the claimant’s conduct during the litigation of the claim, was frivolous, unreasonable, without foundation, or in bad faith. For the purposes of this section, a defendant shall not be considered to have sub- stantially prevailed when the plaintiff obtains an award for damages or permanent injunctive or declaratory relief. (Pub. L. 99–660, title IV, § 413, Nov. 14, 1986, 100 Stat. 3787.) § 11114. Guidelines of Secretary The Secretary may establish, after notice and opportunity for comment, such voluntary guide- lines as may assist the professional review bod- ies in meeting the standards described in section 11112(a) of this title. (Pub. L. 99–660, title IV, § 414, Nov. 14, 1986, 100 Stat. 3787.) § 11115. Construction (a) In general Except as specifically provided in this sub- chapter, nothing in this subchapter shall be con- strued as changing the liabilities or immunities under law or as preempting or overriding any State law which provides incentives, immuni- ties, or protection for those engaged in a profes- sional review action that is in addition to or greater than that provided by this subchapter. (b) Scope of clinical privileges Nothing in this subchapter shall be construed as requiring health care entities to provide clin- ical privileges to any or all classes or types of physicians or other licensed health care practi- tioners. (c) Treatment of nurses and other practitioners Nothing in this subchapter shall be construed as affecting, or modifying any provision of Fed- eral or State law, with respect to activities of professional review bodies regarding nurses, other licensed health care practitioners, or other health professionals who are not physi- cians. (d) Treatment of patient malpractice claims Nothing in this chapter shall be construed as affecting in any manner the rights and remedies afforded patients under any provision of Federal or State law to seek redress for any harm or in- jury suffered as a result of negligent treatment or care by any physician, health care practi- tioner, or health care entity, or as limiting any defenses or immunities available to any physi- cian, health care practitioner, or health care en- tity. (Pub. L. 99–660, title IV, § 415, Nov. 14, 1986, 100 Stat. 3787; Pub. L. 100–177, title IV, § 402(c), as added Pub. L. 101–239, title VI, § 6103(e)(6)(A), Dec. 19, 1989, 103 Stat. 2208.) Editorial Notes AMENDMENTS 1989—Subsec. (a). Pub. L. 101–239 added Pub. L. 100–177, § 402(c), see 1987 Amendment note below. 1987—Subsec. (a). Pub. L. 100–177, § 402(c), as added by Pub. L. 101–239, inserted before period at end ‘‘or as pre- empting or overriding any State law which provides in- centives, immunities, or protection for those engaged in a professional review action that is in addition to or greater than that provided by this subchapter’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1987 AMENDMENT Amendment by Pub. L. 100–177 effective Nov. 14, 1986, see section 402(d) of Pub. L. 100–177, as renumbered and amended, set out as a note under section 11137 of this title. SUBCHAPTER II—REPORTING OF INFORMATION § 11131. Requiring reports on medical mal- practice payments (a) In general Each entity (including an insurance company) which makes payment under a policy of insur- ance, self-insurance, or otherwise in settlement (or partial settlement) of, or in satisfaction of a judgment in, a medical malpractice action or claim shall report, in accordance with section 11134 of this title, information respecting the payment and circumstances thereof.