Ending Defensive Medicine and Encouraging Innovative Reforms Act of 2011 - Sets conditions for lawsuits arising from health care liability claims regarding health care goods or services or any medical product affecting interstate commerce. Provides for periodic payment of future damages. Makes each party liable only for the amount of damages directly proportional to such party's percentage of responsibility. Requires the dismissal of any lawsuit for which a qualified specialist does not submit an affidavit to the court as to whether there is a reasonable and meritorious cause for filing the action. Requires the claimant to pay the defendant's reasonable costs and attorney fees, under certain circumstances. Absolves health care providers from liability if such providers acted consistent with accepted clinical practice guidelines.
Amends the Public Health Service Act to extend liability protections for employees of the Public Health Service to certain emergency medical personnel and health center volunteer practitioners.
Protects disaster relief volunteers, nonprofit organizations, and other entities from civil liability for injuries related to disaster relief services or donated goods, except for injuries caused by willful, wanton, or reckless misconduct.
Makes a state that has enacted and is implementing an alternative medical liability law eligible to receive an incentive payment from the Secretary of Health and Human Services (HHS). Subjects health care lawsuits in a state receiving an incentive payment to liability limits and other provisions governing health care liability claims if the state's alternative medical liability laws have not brought about a reduction in the number of health care lawsuits in the state, a reduction in the amount of time required to resolve lawsuits in the state, and a reduction in the cost of malpractice insurance in the state.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2205 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 2205
To improve the medical justice system by encouraging the prompt and
fair resolution of disputes, enhancing the quality of care, ensuring
patient access to health care services, fostering alternatives to
litigation, and combating defensive medicine, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 16, 2011
Mr. Dent (for himself and Mr. Paulsen) introduced the following bill;
which was referred to the Committee on Energy and Commerce, and in
addition to the Committee on the Judiciary, for a period to be
subsequently determined by the Speaker, in each case for consideration
of such provisions as fall within the jurisdiction of the committee
concerned
_______________________________________________________________________
A BILL
To improve the medical justice system by encouraging the prompt and
fair resolution of disputes, enhancing the quality of care, ensuring
patient access to health care services, fostering alternatives to
litigation, and combating defensive medicine, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ending Defensive Medicine and
Encouraging Innovative Reforms Act of 2011''.
SEC. 2. TABLE OF CONTENTS.
The table of contents is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--NATIONWIDE REFORMS
Subtitle A--In General
Sec. 101. Authorization of payment of future damages to claimants in
health care lawsuits.
Sec. 102. Fair Share Rule.
Sec. 103. Certificate of Merit.
Sec. 104. Practice guidelines.
Sec. 105. Payment determination.
Sec. 106. Definitions.
Subtitle B--Safety Net Providers
Sec. 121. Protection for emergency and related services furnished
pursuant to EMTALA.
Subtitle C--Community Health Center Volunteers
Sec. 131. Protection for health center volunteer practitioners.
Subtitle D--Disaster Relief Volunteers
Sec. 141. Protection for disaster relief volunteers.
TITLE II--STATE REFORM INCENTIVES
Sec. 201. Public Health Service Act amendment.
TITLE I--NATIONWIDE REFORMS
Subtitle A--In General
SEC. 101. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO CLAIMANTS IN
HEALTH CARE LAWSUITS.
(a) Compensating Patient Injury.--In any health care lawsuit, if an
award of future damages, without reduction to present value, equaling
or exceeding $50,000 is made against a party with sufficient insurance
or other assets to fund a periodic payment of such a judgment, the
court shall, at the request of any party, enter a judgment ordering
that the future damages be paid by periodic payments. In any health
care lawsuit, the court may be guided by the Uniform Periodic Payment
of Judgments Act promulgated by the National Conference of
Commissioners on Uniform State Laws.
(b) Applicability.--This section applies to all actions which have
not been first set for trial or retrial before the date of enactment of
this Act.
SEC. 102. FAIR SHARE RULE.
In any health care lawsuit, each party shall be liable for that
party's several share of any damages only and not for the share of any
other person. Each party shall be liable only for the amount of damages
allocated to such party in direct proportion to such party's percentage
of responsibility. Whenever a judgment of liability is rendered as to
any party, a separate judgment shall be rendered against each such
party for the amount allocated to such party. For purposes of this
section, the trier of fact shall determine the proportion of
responsibility of each party for the claimant's harm.
SEC. 103. CERTIFICATE OF MERIT.
(a) Preliminary Procedure.--Within 30 days of the filing of a
health care lawsuit, the court shall appoint a qualified specialist
whose appointment is agreed to by one qualified specialist chosen by
the claimant and one qualified specialist chosen by the defendant. If a
qualified specialist is not agreed to by the qualified specialist
chosen by the claimant and the qualified specialist chosen by the
defendant within such 30 days, then the court shall appoint such
qualified specialist at its discretion. The qualified specialist
appointed by the court shall, within 45 days of such appointment,
submit to the court an affidavit that includes such specialist's
statement of opinion whether, based on a review of the available
medical record and other relevant material, there is a reasonable and
meritorious cause for the filing of the action against the defendant.
If such specialist does not submit such affidavit to the court within
45 days of such appointment, the court shall dismiss such health care
lawsuit. Such affidavit shall also contain a statement by the qualified
specialist of specific breaches in the standard of care and the
approximate negligence causation. Such affidavit shall not be
admissible in any health care lawsuit or other court proceedings, or
any arbitration proceeding. However, such affidavit, and information
relevant to the determinations made by such specialist in such
affidavit, shall be discoverable by the plaintiff and the defendant. In
the case of multiple defendants, a separate affidavit shall be required
for each defendant. The court shall set a reasonable fee that shall be
paid by the claimant for the preparation of such affidavit by such
qualified specialist. The plaintiff's attorney shall be given 90 days
to obtain the certificate of merit affidavit in cases where the period
to file the claim is due to expire because of the statute of
limitations. If a case is filed without a certificate of merit
affidavit, dismissal of the case is automatic without an extension
permitted under the applicable statute of limitation exemption
provision.
(b) Loser Pays.--In a health care lawsuit, in the event the
statement of opinion by a qualified specialist appointed by the court
in an affidavit is that there is no reasonable and meritorious cause
for the filing of the action against the defendant, and the claimant
does not substantially prevail by judgment, settlement, mediation,
arbitration, or any other form of alternative dispute resolution, the
court shall order the claimant, or such claimant's attorneys, to pay
the costs and reasonable attorneys fees incurred by the defendant as a
direct result of the health care lawsuit in which such qualified
specialist's opinion was filed. Claimants and their attorneys shall
share liability for such costs and reasonable attorneys fees incurred,
as determined by the court in the interests of justice.
(c) Definition.--In this section, the term ``qualified specialist''
means, with respect to a health care lawsuit--
(1) a health care professional who--
(A) is appropriately credentialed or licensed in
one or more States to deliver health care services;
(B) typically treats the diagnosis or condition or
provides the type of treatment under review;
(C) can demonstrate by competent evidence that, as
a result of training, education, knowledge, and
experience in the evaluation, diagnosis, and treatment
of the disease or injury which is the subject matter of
the lawsuit against the defendant, the health care
professional is substantially familiar with applicable
standards of care and practice on the date of the
incident as they relate to the act or omission which is
the subject of the lawsuit; and
(D) has not been out of practice for more than 5
consecutive years; and
(2) if the claim in the health care lawsuit involved
treatment that is recommended or provided by a physician
(allopathic or osteopathic), with respect to issues of
negligence concerning such treatment, a physician whose medical
specialty or subspecialty is the same as the defendant's or in
addition to a showing of substantial familiarity in accordance
with this section, there is a showing that the standards of
care and practice in the two specialty or subspecialty fields
are similar.
SEC. 104. PRACTICE GUIDELINES.
Notwithstanding any other provision of Federal, State, or local law
the following shall apply:
(1) In a health care lawsuit or proceeding brought against
a health care provider, such provider shall not be liable for
the care provided if, in delivering such care, such provider
acted consistent with accepted clinical practice guidelines
established by the specialty of which the defendant is board
certified or if guidelines established by the specialty are not
available, accepted clinical practice guideline listed in the
National Guideline Clearinghouse. Non-compliance with accepted
clinical practice guidelines established by the specialty of
which the defendant is board certified, or if guidelines
established by the specialty are not available, accepted
clinical practice guidelines listed in the National Guideline
Clearinghouse shall not, in a health care lawsuit or proceeding
brought against a health care provider, constitute a breach of
the applicable medical standard of care, or be otherwise
admissible to prove a breach of the standard of care,
negligence or other tortious conduct.
(2) Compliance or non-compliance with regulations,
directives, or guidelines established by or on behalf of the
Secretary of Health and Human Services pursuant to authority
set forth in title XVIII of the Social Security Act (42 U.S.C.
1395-1395ccc) shall not, in a health care lawsuit or proceeding
brought against a health care provider, constitute a breach of
the medical standard of care, or be otherwise admissible to
prove a breach of the medical standard of care, negligence or
other tortious conduct.
(3) Compliance or non-compliance with regulations,
directives, or guidelines established by or on behalf of the
Secretary of Health and Human Services or any State official or
entity administering Medicaid programs under title XIX of the
Social Security Act (42 U.S.C. 1396-1396v) and Children's
Health Insurance Programs under title XXI of the Social
Security Act (42 U.S.C. 1397aa-1397jj) shall not, in a health
care lawsuit or proceeding brought against a health care
provider, constitute a breach of the applicable medical
standard of care, or be otherwise admissible to prove a breach
of the standard of care, negligence or other tortious conduct.
(4) Compliance or non-compliance with Comparative
Effectiveness Research and any regulations, directives, or
guidelines based in whole or in part upon such research shall
not, in a health care lawsuit or proceeding brought against a
health care provider, constitute a breach of the applicable
medical standard of care, or be otherwise admissible to prove
the medical standard of care, negligence or other tortious
conduct.
SEC. 105. PAYMENT DETERMINATION.
Notwithstanding any other provision of Federal, State, or local law
the following shall apply:
(1) Evidence of payments and reimbursements made to health
care providers pursuant to title XVIII of the Social Security
Act (42 U.S.C. 1395-1395ccc) and evidence of payment rates,
payment mechanisms, and payment policies established on or
behalf of the Secretary of Health and Human Services for
services provided pursuant to the programs set forth in title
XVIII of the Social Security Act (42 U.S.C. 1395-1395ccc) shall
not, in a health care lawsuit or proceeding brought against a
health care provider, constitute a determination that a health
care provider has or has not met the medical standard of care
or be otherwise admissible to prove breach of the medical
standard of care, negligence or other tortious conduct.
(2) Compliance or non-compliance with payment rates,
payment mechanisms, or payment policies established by or on
behalf of the Secretary of Health and Human Services or any
State official or entity administering Medicaid programs under
title XIX of the Social Security Act (42 U.S.C. 1396-1396v) and
Children's Health Insurance Programs under title XXI of the
Social Security Act (42 U.S.C. 1397aa-1397jj) shall not, in a
health care lawsuit or proceeding brought against a health care
provider, constitute a determination that a health care
provider has or has not met the applicable medical standard of
care or be otherwise admissible to prove a breach of the
medical standard of care, negligence or other tortious conduct.
SEC. 106. DEFINITIONS.
In this subtitle:
(1) Health care lawsuit.--The term ``health care lawsuit''
means any health care liability claim concerning the provision
of health care goods or services or any medical product
affecting interstate commerce, or any health care liability
action concerning the provision of health care goods or
services or any medical product affecting interstate commerce,
brought in a State or Federal court or pursuant to an
alternative dispute resolution system, 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, State, or local government; or
which is grounded in antitrust.
(2) Claimant.--The term ``claimant'' means any person who
brings a health care lawsuit, including a person who asserts or
claims a right to legal or equitable contribution, indemnity,
or subrogation, arising out of a health care liability claim or
action, and any person on whose behalf such a claim is asserted
or such an action is brought, whether deceased, incompetent, or
a minor.
(3) Health care provider.--The term `health care provider'
means any person or entity--
(A) required by State or Federal law or regulations
to be licensed, registered, or certified to provide
health care services; and
(B) being either so licensed, registered, or
certified, or exempted from such requirement by other
law or regulation.
Subtitle B--Safety Net Providers
SEC. 121. PROTECTION FOR EMERGENCY AND RELATED SERVICES FURNISHED
PURSUANT TO EMTALA.
Section 224(g) of the Public Health Service Act (42 U.S.C. 233(g))
is amended--
(1) in paragraph (4), by striking ``An entity'' and
inserting ``Subject to paragraph (6), an entity''; and
(2) by adding at the end the following:
``(6)(A) For purposes of this section--
``(i) an entity described in subparagraph (B) shall
be considered to be an entity described in paragraph
(4); and
``(ii) the provisions of this section shall apply
to an entity described in subparagraph (B) in the same
manner as such provisions apply to an entity described
in paragraph (4), except that--
``(I) notwithstanding paragraph (1)(B), the
deeming of any entity described in subparagraph
(B), or of an officer, governing board member,
employee, contractor, or on-call provider of
such an entity, to be an employee of the Public
Health Service for purposes of this section
shall apply only with respect to items and
services that are furnished to an individual
pursuant to section 1867 of the Social Security
Act and to post stabilization services (as
defined in subparagraph (D)) furnished to such
an individual;
``(II) nothing in paragraph (1)(D) shall be
construed as preventing a physician or
physician group described in subparagraph
(B)(ii) from making the application referred to
in such paragraph or as conditioning the
deeming of a physician or physician group that
makes such an application upon receipt by the
Secretary of an application from the hospital
or emergency department that employs or
contracts with the physician or group, or
enlists the physician or physician group as an
on-call provider;
``(III) notwithstanding paragraph (3), this
paragraph shall apply only with respect to
causes of action arising from acts or omissions
that occur on or after January 1, 2010;
``(IV) paragraph (5) shall not apply to a
physician or physician group described in
subparagraph (B)(ii);
``(V) the Attorney General, in consultation
with the Secretary, shall make separate
estimates under subsection (k)(1) with respect
to entities described in subparagraph (B) and
entities described in paragraph (4) (other than
those described in subparagraph (B)), and the
Secretary shall establish separate funds under
subsection (k)(2) with respect to such groups
of entities, and any appropriations under this
subsection for entities described in
subparagraph (B) shall be separate from the
amounts authorized by subsection (k)(2);
``(VI) notwithstanding subsection (k)(2),
the amount of the fund established by the
Secretary under such subsection with respect to
entities described in subparagraph (B) may
exceed a total of $10,000,000 for a fiscal
year; and
``(VII) subsection (m) shall not apply to
entities described in subparagraph (B).
``(B) An entity described in this subparagraph is--
``(i) a hospital or an emergency department to
which section 1867 of the Social Security Act applies;
and
``(ii) a physician or physician group that is
employed by, is under contract with, or is an on-call
provider of such hospital or emergency department, to
furnish items and services to individuals under such
section.
``(C) For purposes of this paragraph, the term `on-call
provider' means a physician or physician group that--
``(i) has full, temporary, or locum tenens staff
privileges at a hospital or emergency department to
which section 1867 of the Social Security Act applies;
and
``(ii) is not employed by or under contract with
such hospital or emergency department, but agrees to be
ready and available to provide services pursuant to
section 1867 of the Social Security Act or post
stabilization services to individuals being treated in
the hospital or emergency department with or without
compensation from the hospital or emergency department.
``(D) For purposes of this paragraph, the term `post
stabilization services' means, with respect to an individual
who has been treated by an entity described in subparagraph (B)
for purposes of complying with section 1867 of the Social
Security Act, services that are--
``(i) related to the condition that was so treated;
and
``(ii) provided after the individual is stabilized
in order to maintain the stabilized condition or to
improve or resolve the condition of the individual.
``(E)(i) Nothing in this paragraph (or in any other
provision of this section as such provision applies to entities
described in subparagraph (B) by operation of subparagraph (A))
shall be construed as authorizing or requiring the Secretary to
make payments to such entities, the budget authority for which
is not provided in advance by appropriation Acts.
``(ii) The Secretary shall limit the total amount of
payments under this paragraph for a fiscal year to the total
amount appropriated in advance by appropriation Acts for such
purpose for such fiscal year. If the total amount of payments
that would otherwise be made under this paragraph for a fiscal
year exceeds such total amount appropriated, the Secretary
shall take such steps as may be necessary to ensure that the
total amount of payments under this paragraph for such fiscal
year does not exceed such total amount appropriated.''.
Subtitle C--Community Health Center Volunteers
SEC. 131. PROTECTION FOR HEALTH CENTER VOLUNTEER PRACTITIONERS.
(a) In General.--Section 224 of the Public Health Service Act (42
U.S.C. 233) is amended--
(1) in subsection (g)(1)(A)--
(A) in the first sentence, by striking ``or
employee'' and inserting ``employee, or (subject to
subsection (k)(4)) volunteer practitioner''; and
(B) in the second sentence, by inserting ``and
subsection (k)(4)'' after ``subject to paragraph (5)'';
and
(2) in each of subsections (g), (i), (j), (k), (l), and
(m)--
(A) by striking the term ``employee, or
contractor'' each place such term appears and inserting
``employee, volunteer practitioner, or contractor'';
(B) by striking the term ``employee, and
contractor'' each place such term appears and inserting
``employee, volunteer practitioner, and contractor'';
(C) by striking the term ``employee, or any
contractor'' each place such term appears and inserting
``employee, volunteer practitioner, or contractor'';
and
(D) by striking the term ``employees, or
contractors'' each place such term appears and
inserting ``employees, volunteer practitioners, or
contractors''.
(b) Applicability; Definition.--Section 224(k) of the Public Health
Service Act (42 U.S.C. 233(k)) is amended by adding at the end the
following paragraph:
``(4)(A) Subsections (g) through (m) apply with respect to
volunteer practitioners beginning with the first fiscal year for which
an appropriations Act provides that amounts in the fund under paragraph
(2) are available with respect to such practitioners.
``(B) For purposes of subsections (g) through (m), the term
`volunteer practitioner' means a practitioner who, with respect to an
entity described in subsection (g)(4), meets the following conditions:
``(i) In the State involved, the practitioner is a licensed
physician, a licensed clinical psychologist, or other licensed
or certified health care practitioner.
``(ii) At the request of such entity, the practitioner
provides services to patients of the entity, at a site at which
the entity operates or at a site designated by the entity. The
weekly number of hours of services provided to the patients by
the practitioner is not a factor with respect to meeting
conditions under this subparagraph.
``(iii) The practitioner does not for the provision of such
services receive any compensation from such patients, from the
entity, or from third-party payers (including reimbursement
under any insurance policy or health plan, or under any Federal
or State health benefits program).''.
Subtitle D--Disaster Relief Volunteers
SEC. 141. PROTECTION FOR DISASTER RELIEF VOLUNTEERS.
(a) Liability of Disaster Relief Volunteers.--A disaster relief
volunteer shall not be liable for any injury (including personal
injury, property damage or loss, and death) caused by an act or
omission of such volunteer in connection with such volunteer's
providing or facilitating the provision of disaster relief services
if--
(1) the injury was not caused by willful, wanton, or
reckless misconduct by the volunteer; and
(2) the injury was not caused by the volunteer's operating
a motor vehicle, vessel, aircraft, or other vehicle for which
the state requires the operator or the owner of the vehicle,
craft, or vessel to--
(A) possess an operator's license; or
(B) maintain insurance.
(b) Liability of Employer or Partner of Disaster Relief
Volunteer.--An employer or business partner of a disaster relief
volunteer shall not be liable for any act or omission of such volunteer
in connection with such volunteer's providing or facilitating the
provision of disaster relief services.
(c) Liability of Host or Enabling Person, Entity, or
Organization.--A person or entity, including a governmental entity,
that works with, accepts services from, or makes its facilities
available to a disaster relief volunteer to enable such volunteer to
provide disaster relief services shall not be liable for any act or
omission of such volunteer in connection with such volunteer's
providing such services.
(d) Liability of Nonprofit Organizations.--A nonprofit organization
shall not be liable for any injury (including personal injury, property
damage or loss, and death) caused by an act or omission in connection
with such nonprofit organization's providing or facilitating the
provision of disaster relief services if the injury was not caused by
willful, wanton, or reckless misconduct by the nonprofit organization.
(e) Liability of Governmental and Intergovernmental Entities for
Donations of Disaster Relief Goods.--A governmental or
intergovernmental entity that donates to an agency or instrumentality
of the United States disaster relief goods shall not be liable for any
injury (including personal injury, property damage or loss, and death)
caused by such donated goods if the injury was not caused by willful,
wanton, or reckless misconduct by such governmental or
intergovernmental entity.
(f) Limitation on Punitive and Noneconomic Damages Based on Actions
of Disaster Relief Volunteers and Governmental Donors.--
(1) Punitive damages.--Unless the claimant establishes by
clear and convincing evidence that its damages were proximately
caused by willful, wanton, or reckless misconduct by either--
(A) a disaster relief volunteer in any civil action
brought for injury caused by the volunteer's providing
or facilitating the provision of disaster relief
services; or
(B) a governmental or intergovernmental entity in
any civil action brought for injury caused by disaster
relief goods donated by such governmental or
intergovernmental entity;
punitive damages may not be awarded in any civil action against
such a volunteer or governmental entity.
(2) Noneconomic damages.--
(A) General rule.--In any civil action brought
against--
(i) a disaster relief volunteer for injury
caused by such volunteer's providing or
facilitating the provision of disaster relief
services; or
(ii) a governmental or intergovernmental
entity for injury caused by disaster relief
goods donated by such governmental entity;
liability for noneconomic loss, if permitted under
subsection (a) or (e) of this section, shall be
determined in accordance with this subparagraph.
(B) Amount of liability.--(i) The amount of
noneconomic loss allocated to the disaster relief
volunteer or governmental or intergovernmental entity
defendant shall be in direct proportion to the
percentage of responsibility of that defendant
(determined in accordance with clause (ii)) for the
harm to the claimant with respect to which that
defendant is liable. The court shall render a separate
judgment against each defendant in an amount determined
pursuant to this section.
(ii) For purposes of determining the amount of
noneconomic loss allocated to a defendant, the trier of
fact shall determine the percentage of responsibility
of each person or entity responsible for the claimant's
harm, whether or not such person or entity is a party
to the action.
(g) Construction.--Nothing in this section shall be construed to
abrogate or limit any protection that a volunteer, as defined in the
Volunteer Protection Act of 1997 (42 U.S.C. 14501 et seq.), may be
entitled to under that Act. Neither shall anything in this section be
construed to confer any private right of action or to abrogate or limit
any protection with respect to either liability or damages that any
disaster relief volunteer or governmental or intergovernmental entity
may be entitled to under any other provision of law.
(h) Supplemental Declaration.--If a Disaster Declaration is issued,
the President, the Secretary of Health and Human Services, or the
Secretary of Homeland Security may issue a Supplemental Declaration
under this section.
(1) Temporal effect.--Such Supplemental Declaration may
provide that, for purposes of this section, such Disaster
Declaration shall have such temporal effect as the President or
the Secretary may deem necessary or appropriate to further the
public interest, including providing that such Disaster
Declaration shall have an effective date earlier than the date
of the declaration or determination of such Disaster
Declaration.
(2) Geographic and other conditions.--Such Supplemental
Declaration may provide that, for purposes of this section,
such Disaster Declaration shall have such geographic or other
conditions as the President or the Secretary may deem necessary
or appropriate to further the public interest.
(i) Licensing, Certification, and Authorization.--This section
shall not apply to a disaster relief volunteer where the disaster
relief service such volunteer provides is of a type that generally
requires a license, certificate, or authorization, and the disaster
relief volunteer lacks such license, certificate, or authorization,
unless--
(1) such volunteer is licensed, certified, or authorized to
provide such services in any State to the extent required, if
any, by the appropriate authorities of that State, even if such
State is not the State in which the disaster relief volunteer
provides disaster relief services; or
(2) otherwise specified in a Disaster Declaration or
Supplemental Declaration under this section.
(j) Definitions.--For purposes of this section:
(1) The term ``Disaster Declaration'' means--
(A) a public health emergency declaration by the
Secretary of Health and Human Services under section
319 of the Public Health Service Act (42 U.S.C. 247d);
(B) a declaration of a public health emergency or a
risk of such emergency as determined by the Secretary
of Homeland Security in accordance with clause (i) or
clause (ii) of section 2811(b)(3)(A) of such Act (42
U.S.C. 300hh-11(b)(3)(A)) and section 503(5) of the
Homeland Security Act of 2002 (6 U.S.C. 313(5)); or
(C) an emergency or major disaster declaration by
the President under section 401 or 501 of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act
(42 U.S.C. 5170 or 5191).
(2) The term ``disaster relief volunteer'' means an
individual who provides disaster relief services in connection
with a Disaster Declaration without expectation or receipt of
compensation in exchange for providing such services.
(3) The term ``disaster relief services'' means services or
assistance provided in preparation for, response to, or
recovery from any event that is the subject of a Disaster
Declaration, including but not limited to health, medical, fire
fighting, rescue, reconstruction, and any other services or
assistance specified by a Supplemental Declaration under this
section as necessary or desirable to prepare for, respond to,
or recover from an event that is the subject of a Disaster
Declaration.
(4) The term ``disaster relief good'' means either--
(A) those goods provided in preparation for,
response to, or recovery from any event that is the
subject of a Disaster Declaration and reasonably
necessary to such preparation, response, or recovery;
or
(B) those goods defined by a Disaster Declaration
or Supplemental Declaration under this section.
(5) The term ``noneconomic loss'' means 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
(other than loss of domestic service), hedonic damages, injury
to reputation, and all other nonpecuniary losses of any kind or
nature.
(6) The term ``State'' means each of the several States,
the District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, the Northern Mariana
Islands, any other territory or possession of the United
States, or any political subdivision of any such State,
territory, or possession, and (for purposes of subsection (h))
any foreign country.
(7) The term ``compensation'' means monetary or other
compensation of any kind provided in exchange for an
individual's services, but does not include--
(A) reasonable reimbursement or allowance for
expenses actually incurred by such an individual;
(B) provision of reasonable supplies, lodging, or
transportation to such an individual; or
(C) such an individual's ordinary salary or
compensation paid by his or her employer while such
individual is on leave from his or her ordinary duties
with such employer in order to provide disaster relief
services.
TITLE II--STATE REFORM INCENTIVES
SEC. 201. PUBLIC HEALTH SERVICE ACT AMENDMENT.
The Public Health Service Act is amended by adding at the end the
following:
``TITLE XXXIV--MEDICAL LIABILITY ALTERNATIVES
``Subtitle A--Incentive Payments
``SEC. 3401. INCENTIVE PAYMENTS FOR MEDICAL LIABILITY REFORM.
``(a) Eligibility.--A State that has enacted and is implementing an
alternative medical liability law is eligible to receive an incentive
payment in an amount determined by the Secretary, subject to the
availability of appropriations for that purpose.
``(b) Contents of Alternative Medical Liability Law.--An
alternative medical liability law shall contain any one or a
combination of the following litigation alternatives:
``(1) Early offer.--Within a time period to be determined
by the State, a health care provider may offer to pay economic
damages to an injured party. The injured party must be provided
an equal amount of time to accept or reject the offer.
Notification would not constitute an admission of liability.
Evidence of an offer would be inadmissible in a health care
lawsuit. Providers should be incentivized to make good faith
offers as early as possible and patients should be incentivized
to accept legitimate offers of compensation.
``(2) Healthcare court.--Health Courts would provide a
forum, either a bench or jury trial, where medical liability
actions could be heard by judges specially trained in medical
liability matters and who hear only medical liability cases.
``(3) I'm sorry provision.--In any medical liability
action, any and all statements, affirmations, gestures, or
conduct expressing apology, sympathy, commiseration,
condolence, compassion, fault, or a general sense of
benevolence which are made by a healthcare provider to the
plaintiff or a relative of the plaintiff which relate solely to
the discomfort, pain, suffering, injury, or death as the result
of the unanticipated outcome of the medical care shall be
inadmissible as evidence of an admission of liability or as
evidence of an admission against interest.
``(4) Voluntary alternative dispute resolution.--
Alternatives to medical liability trials would be pursued
through binding and nonbinding dispute processes and
techniques, including but not limited to mediation and
arbitration. Mediation is a private, facilitated negotiation in
which parties discuss their dispute with the help of a neutral
third party, whose role is to help the parties communicate with
one another to reach an agreement or settlement. Arbitration is
different from mediation in that the neutral arbitrator
actually has the authority to make a decision about the
dispute.
``(5) Expert witness qualifications.--Amendments to State
statutory qualifications for those who may serve as medical
expert witnesses at trial, including the creation of additional
standards that medical expert witnesses must meet in order to
ensure the testimony juries receive is presented by an
individual with particularized expertise in the matter in
question.
``(6) Other alternatives approved by the secretary.--Any
other alternative the Secretary approves by rule as carrying
out the purposes of this subtitle.
``(c) Use of Incentive Payments.--The State shall, not later than 3
years after receipt of an incentive payment under this title, use that
incentive payment to improve health care in that State.
``SEC. 3402. STATE REPORTS.
``(a) Duty To Report.--Each State that accepts an incentive payment
under this title shall thereafter submit annual reports to the
Secretary describing the progress of that State in the implementation
of that State's alternative medical liability law.
``(b) Required Contents of Reports.--Each such report shall
contain, for the period covered by the report--
``(1) the number of health care lawsuits initiated in the
State;
``(2) the average amount of time taken to resolve each
lawsuit that is resolved in the State; and
``(3) the average cost of malpractice insurance in the
State.
``SEC. 3403. REPORTS BY SECRETARY TO CONGRESS.
``(a) Annual Reports by Secretary.--Beginning not later than one
year after the date of the enactment of this title, the Secretary shall
submit to Congress an annual report on the effect of the laws of each
State that has received an incentive payment under this title in
restoring reliability to that State's medical justice system. Such
report shall include any determination made by the Secretary under
subsection (b).
``(b) Determination of Effectiveness of Laws.--
``(1) General rule.--Except as provided in paragraph (2),
after a State makes 3 reports under section 3402, the Secretary
shall determine whether, during the period covered by such
reports, those laws have brought about--
``(A) a reduction in the number of health care
lawsuits initiated in the State;
``(B) a reduction in the amount of time required to
resolve lawsuits in the State; and
``(C) a reduction in the cost of malpractice
insurance in the State.
``(2) Exception.--If the Secretary finds that litigation
about the implementation of a State's alternative medical
liability laws has prevented those laws from having their
expected effect, the Secretary may defer making the
determination under paragraph (a) until the Secretary finds
that 3 years have passed since that litigation ceased
preventing those laws from having their expected effect.
``SEC. 3404. APPLICATION OF SUBTITLE B TO STATES WITH INEFFECTIVE LAWS.
``(a) General Rule.--Except as otherwise provided in this section,
if the Secretary determines under section 3403(b) that a State's
alternative medical liability laws have not brought about the results
described in that section, beginning on the first day of the next
succeeding year after that determination, that State, and any health
care lawsuit commenced under the law of that State on or after that
day, shall be subject to the provisions of subtitle B.
``(b) Statute of Limitation for Certain Cases.--Any health care
lawsuit commenced in a State while that State is subject to subtitle B,
but arising from an injury that occurred before subtitle B began to
apply in that State, shall continue to be governed by the statute of
limitations in effect at the time the injury occurred.
``SEC. 3405. APPLICATION REQUIRED FOR PAYMENT.
``(a) Application Required.--Each State seeking an incentive
payment under this title shall submit to the Secretary an application,
at such time, in such manner, and containing such information as the
Secretary may require.
``(b) Time Limit for Submission of Applications.--The Secretary may
not accept any application under this subtitle later than 5 years after
the date of the enactment of this Act.
``SEC. 3406. TECHNICAL ASSISTANCE.
``The Secretary may provide technical assistance to the States
applying for or awarded an incentive payment under this title.
``SEC. 3407. RULEMAKING.
``The Secretary may make rules to carry out this title.
``SEC. 3408. AUTHORIZATION OF APPROPRIATIONS.
``There are authorized to be appropriated to carry out this title
such sums as may be necessary, to remain available until expended.
``SEC. 3409. DEFINITIONS.
``In this title--
``(1) the term `Secretary' means the Secretary of Health
and Human Services; and
``(2) the term `State' includes the District of Columbia,
Puerto Rico, and each other territory or possession of the
United States.
``Subtitle B--Liability Limits for States With Ineffective Laws
``SEC. 3411. APPLICATION.
``This subtitle applies only in those States to which it is made
applicable by subtitle A.
``SEC. 3412. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.
``The time for the commencement of a health care lawsuit shall be 3
years after the date of manifestation of injury or 1 year after the
claimant discovers, or through the use of reasonable diligence should
have discovered, the injury, whichever occurs first. In no event shall
the time for commencement of a health care lawsuit exceed 3 years after
the date of manifestation of injury unless tolled for any of the
following--
``(1) upon proof of fraud;
``(2) intentional concealment; or
``(3) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the person of
the injured person.
Actions by a minor shall be commenced within 3 years from the date of
the alleged manifestation of injury except that actions by a minor
under the full age of 6 years shall be commenced within 3 years of
manifestation of injury or prior to the minor's 8th birthday, whichever
provides a longer period. Such time limitation shall be tolled for
minors for any period during which a parent or guardian and a health
care provider or health care organization have committed fraud or
collusion in the failure to bring an action on behalf of the injured
minor.
``SEC. 3413. COMPENSATING PATIENT INJURY.
``(a) Unlimited Amount of Damages for Actual Economic Losses in
Health Care Lawsuits.--In any health care lawsuit, nothing in this
subtitle shall limit a claimant's recovery of the full amount of the
available economic damages, notwithstanding the limitation in
subsection (b).
``(b) Additional Noneconomic Damages.--In any health care lawsuit,
the amount of noneconomic damages, if available, may be as much as
$250,000, regardless of the number of parties against whom the action
is brought or the number of separate claims or actions brought with
respect to the same injury.
``(c) No Discount of Award for Noneconomic Damages.--For purposes
of applying the limitation in subsection (b), future noneconomic
damages shall not be discounted to present value. The jury shall not be
informed about the maximum award for noneconomic damages. An award for
noneconomic damages in excess of $250,000 shall be reduced either
before the entry of judgment, or by amendment of the judgment after
entry of judgment, and such reduction shall be made before accounting
for any other reduction in damages required by law. If separate awards
are rendered for past and future noneconomic damages and the combined
awards exceed $250,000, the future noneconomic damages shall be reduced
first.
``(d) Fair Share Rule.--In any health care lawsuit, each party
shall be liable for that party's several share of any damages only and
not for the share of any other person. Each party shall be liable only
for the amount of damages allocated to such party in direct proportion
to such party's percentage of responsibility. Whenever a judgment of
liability is rendered as to any party, a separate judgment shall be
rendered against each such party for the amount allocated to such
party. For purposes of this section, the trier of fact shall determine
the proportion of responsibility of each party for the claimant's harm.
``SEC. 3414. MAXIMIZING PATIENT RECOVERY.
``(a) Court Supervision of Share of Damages Actually Paid to
Claimants.--In any health care lawsuit, the court shall supervise the
arrangements for payment of damages to protect against conflicts of
interest that may have the effect of reducing the amount of damages
awarded that are actually paid to claimants. In particular, in any
health care lawsuit in which the attorney for a party claims a
financial stake in the outcome by virtue of a contingent fee, the court
shall have the power to restrict the payment of a claimant's damage
recovery to such attorney, and to redirect such damages to the claimant
based upon the interests of justice and principles of equity. In no
event shall the total of all contingent fees for representing all
claimants in a health care lawsuit exceed the following limits:
``(1) Forty percent of the first $50,000 recovered by the
claimant(s).
``(2) Thirty-three and one-third percent of the next
$50,000 recovered by the claimant(s).
``(3) Twenty-five percent of the next $500,000 recovered by
the claimant(s).
``(4) Fifteen percent of any amount by which the recovery
by the claimant(s) is in excess of $600,000.
``(b) Applicability.--The limitations in this section shall apply
whether the recovery is by judgment, settlement, mediation,
arbitration, or any other form of alternative dispute resolution. In a
health care lawsuit involving a minor or incompetent person, a court
retains the authority to authorize or approve a fee that is less than
the maximum permitted under this section. The requirement for court
supervision in the first two sentences of subsection (a) applies only
in civil actions.
``SEC. 3415. ADDITIONAL HEALTH BENEFITS.
``In any health care lawsuit involving injury or wrongful death,
any party may introduce evidence of collateral source benefits. If a
party elects to introduce such evidence, any opposing party may
introduce evidence of any amount paid or contributed or reasonably
likely to be paid or contributed in the future by or on behalf of the
opposing party to secure the right to such collateral source benefits.
No provider of collateral source benefits shall recover any amount
against the claimant or receive any lien or credit against the
claimant's recovery or be equitably or legally subrogated to the right
of the claimant in a health care lawsuit involving injury or wrongful
death. This section shall apply to any health care lawsuit that is
settled as well as a health care lawsuit that is resolved by a fact
finder. This section shall not apply to section 1862(b) (42 U.S.C.
1395y(b)) or section 1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social
Security Act.
``SEC. 3416. PUNITIVE DAMAGES.
``(a) In General.--Punitive damages may, if otherwise permitted by
applicable State or Federal law, be awarded against any person in a
health care lawsuit only if it is proven by clear and convincing
evidence that such person acted with malicious intent to injure the
claimant, or that such person deliberately failed to avoid unnecessary
injury that such person knew the claimant was substantially certain to
suffer. In any health care lawsuit where no judgment for compensatory
damages is rendered against such person, no punitive damages may be
awarded with respect to the claim in such lawsuit. No demand for
punitive damages shall be included in a health care lawsuit as
initially filed. A court may allow a claimant to file an amended
pleading for punitive damages only upon a motion by the claimant and
after a finding by the court, upon review of supporting and opposing
affidavits or after a hearing, after weighing the evidence, that the
claimant has established by a substantial probability that the claimant
will prevail on the claim for punitive damages. At the request of any
party in a health care lawsuit, the trier of fact shall consider in a
separate proceeding--
``(1) whether punitive damages are to be awarded and the
amount of such award; and
``(2) the amount of punitive damages following a
determination of punitive liability.
If a separate proceeding is requested, evidence relevant only to the
claim for punitive damages, as determined by applicable State law,
shall be inadmissible in any proceeding to determine whether
compensatory damages are to be awarded.
``(b) Determining Amount of Punitive Damages.--
``(1) Factors considered.--In determining the amount of
punitive damages, if awarded, in a health care lawsuit, the
trier of fact shall consider only the following--
``(A) the severity of the harm caused by the
conduct of such party;
``(B) the duration of the conduct or any
concealment of it by such party;
``(C) the profitability of the conduct to such
party;
``(D) the number of products sold or medical
procedures rendered for compensation, as the case may
be, by such party, of the kind causing the harm
complained of by the claimant;
``(E) any criminal penalties imposed on such party,
as a result of the conduct complained of by the
claimant; and
``(F) the amount of any civil fines assessed
against such party as a result of the conduct
complained of by the claimant.
``(2) Maximum award.--The amount of punitive damages, if
awarded, in a health care lawsuit may be as much as $250,000 or
as much as two times the amount of economic damages awarded,
whichever is greater. The jury shall not be informed of this
limitation.
``(c) No Punitive Damages for Products That Comply With FDA
Standards.--
``(1) In general.--
``(A) No punitive damages may be awarded against
the manufacturer or distributor of a medical product,
or a supplier of any component or raw material of such
medical product, based on a claim that such product
caused the claimant's harm where--
``(i)(I) such medical product was subject
to premarket approval, clearance, or licensure
by the Food and Drug Administration with
respect to the safety of the formulation or
performance of the aspect of such medical
product which caused the claimant's harm or the
adequacy of the packaging or labeling of such
medical product; and
``(II) such medical product was so
approved, cleared, or licensed; or
``(ii) such medical product is generally
recognized among qualified experts as safe and
effective pursuant to conditions established by
the Food and Drug Administration and applicable
Food and Drug Administration regulations,
including without limitation those related to
packaging and labeling, unless the Food and
Drug Administration has determined that such
medical product was not manufactured or
distributed in substantial compliance with
applicable Food and Drug Administration
statutes and regulations.
``(B) Rule of construction.--Subparagraph (A) may
not be construed as establishing the obligation of the
Food and Drug Administration to demonstrate
affirmatively that a manufacturer, distributor, or
supplier referred to in such subparagraph meets any of
the conditions described in such subparagraph.
``(2) Liability of health care providers.--A health care
provider who prescribes, or who dispenses pursuant to a
prescription, a medical product approved, licensed, or cleared
by the Food and Drug Administration shall not be named as a
party to a product liability lawsuit involving such product and
shall not be liable to a claimant in a class action lawsuit
against the manufacturer, distributor, or seller of such
product. Nothing in this paragraph prevents a court from
consolidating cases involving health care providers and cases
involving products liability claims against the manufacturer,
distributor, or product seller of such medical product.
``(3) Packaging.--In a health care lawsuit for harm which
is alleged to relate to the adequacy of the packaging or
labeling of a drug which is required to have tamper-resistant
packaging under regulations of the Secretary of Health and
Human Services (including labeling regulations related to such
packaging), the manufacturer or product seller of the drug
shall not be held liable for punitive damages unless such
packaging or labeling is found by the trier of fact by clear
and convincing evidence to be substantially out of compliance
with such regulations.
``(4) Exception.--Paragraph (1) shall not apply in any
health care lawsuit in which--
``(A) a person, before or after premarket approval,
clearance, or licensure of such medical product,
knowingly misrepresented to or withheld from the Food
and Drug Administration information that is required to
be submitted under the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 301 et seq.) or section 351 of the
Public Health Service Act (42 U.S.C. 262) that is
material and is causally related to the harm which the
claimant allegedly suffered; or
``(B) a person made an illegal payment to an
official of the Food and Drug Administration for the
purpose of either securing or maintaining approval,
clearance, or licensure of such medical product.
``SEC. 3417. DEFINITIONS.
``In this subtitle:
``(1) Alternative dispute resolution system; adr.--The term
`alternative dispute resolution system' or `ADR' means a system
that provides for the resolution of health care lawsuits in a
manner other than through a civil action brought in a State or
Federal court.
``(2) Claimant.--The term `claimant' means any person who
brings a health care lawsuit, including a person who asserts or
claims a right to legal or equitable contribution, indemnity,
or subrogation, arising out of a health care liability claim or
action, and any person on whose behalf such a claim is asserted
or such an action is brought, whether deceased, incompetent, or
a minor.
``(3) Collateral source benefits.--The term `collateral
source benefits' means any amount paid or reasonably likely to
be paid in the future to or on behalf of the claimant, or any
service, product, or other benefit provided or reasonably
likely to be provided in the future to or on behalf of the
claimant, as a result of the injury or wrongful death, pursuant
to--
``(A) any State or Federal health, sickness,
income-disability, accident, or workers' compensation
law;
``(B) any health, sickness, income-disability, or
accident insurance that provides health benefits or
income-disability coverage;
``(C) any contract or agreement of any group,
organization, partnership, or corporation to provide,
pay for, or reimburse the cost of medical, hospital,
dental, or income-disability benefits; and
``(D) any other publicly or privately funded
program.
``(4) Compensatory damages.--The term `compensatory
damages' means objectively verifiable monetary losses incurred
as a result of the provision of, use of, or payment for (or
failure to provide, use, or pay for) health care services or
medical products, such as past and future medical expenses,
loss of past and future earnings, cost of obtaining domestic
services, loss of employment, and loss of business or
employment opportunities, damages 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 (other than loss
of domestic service), hedonic damages, injury to reputation,
and all other nonpecuniary losses of any kind or nature. The
term `compensatory damages' includes economic damages and
noneconomic damages, as such terms are defined in this section.
``(5) Contingent fee.--The term `contingent fee' includes
all compensation to any person or persons which is payable only
if a recovery is effected on behalf of one or more claimants.
``(6) Economic damages.--The term `economic damages' means
objectively verifiable monetary losses incurred as a result of
the provision of, use of, or payment for (or failure to
provide, use, or pay for) health care services or medical
products, such as past and future medical expenses, loss of
past and future earnings, cost of obtaining domestic services,
loss of employment, and loss of business or employment
opportunities.
``(7) Health care lawsuit.--The term `health care lawsuit'
means any health care liability claim concerning the provision
of health care goods or services or any medical product
affecting interstate commerce, or any health care liability
action concerning the provision of health care goods or
services or any medical product affecting interstate commerce,
brought in a State or Federal court or pursuant to an
alternative dispute resolution system, 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, State, or local government; or
which is grounded in antitrust.
``(8) Health care liability action.--The term `health care
liability action' means a civil action brought in a State or
Federal court or pursuant to an alternative dispute resolution
system, 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 plaintiffs, defendants, or other parties, or the
number of causes of action, in which the claimant alleges a
health care liability claim.
``(9) Health care liability claim.--The term `health care
liability claim' means a demand by any person, whether or not
pursuant to ADR, against a health care provider, health care
organization, or the manufacturer, distributor, supplier,
marketer, promoter, or seller of a medical product, including,
but not limited to, third-party claims, cross-claims, counter-
claims, or contribution claims, which are based upon the
provision of, use of, or payment for (or the failure to
provide, use, or pay for) health care services or medical
products, regardless of the theory of liability on which the
claim is based, or the number of plaintiffs, defendants, or
other parties, or the number of causes of action.
``(10) Health care organization.--The term `health care
organization' means any person or entity which is obligated to
provide or pay for health benefits under any health plan,
including any person or entity acting under a contract or
arrangement with a health care organization to provide or
administer any health benefit.
``(11) 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.
``(12) Health care goods or services.--The term `health
care goods or services' means any goods or services provided by
a health care organization, 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.
``(13) Malicious intent to injure.--The term `malicious
intent to injure' means intentionally causing or attempting to
cause physical injury other than providing health care goods or
services.
``(14) Medical product.--The term `medical product' means a
drug, device, or biological product intended for humans, and
the terms `drug', `device', and `biological product' have the
meanings given such terms in sections 201(g)(1) and 201(h) of
the Federal Food, Drug and Cosmetic Act (21 U.S.C. 321(g)(1)
and (h)) and section 351(i) of the Public Health Service Act
(42 U.S.C. 262(a)), respectively, including any component or
raw material used therein, but excluding health care services.
``(15) Noneconomic damages.--The term `noneconomic damages'
means damages 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 (other than loss of domestic
service), hedonic damages, injury to reputation, and all other
nonpecuniary losses of any kind or nature.
``(16) 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, health care organization, or a manufacturer,
distributor, or supplier of a medical product. Punitive damages
are neither economic nor noneconomic damages.
``(17) Recovery.--The term `recovery' means the net sum
recovered after deducting any disbursements or costs incurred
in connection with prosecution or settlement of the claim,
including all costs paid or advanced by any person. Costs of
health care incurred by the plaintiff and the attorneys' office
overhead costs or charges for legal services are not deductible
disbursements or costs for such purpose.
``(18) State.--The term `State' has the same meaning as
that term has for the purposes of subtitle A.
``SEC. 3418. EFFECT ON OTHER LAWS.
``(a) Vaccine Injury.--
``(1) To the extent that title XXI establishes a Federal
rule of law applicable to a civil action brought for a vaccine-
related injury or death--
``(A) this subtitle does not affect the application
of the rule of law to such an action; and
``(B) any rule of law prescribed by this subtitle
in conflict with a rule of law of title XXI shall not
apply to such action.
``(2) If there is an aspect of a civil action brought for a
vaccine-related injury or death to which a Federal rule of law
under title XXI of this Act does not apply, then this subtitle
or otherwise applicable law (as determined under this subtitle)
will apply to such aspect of such action.
``(b) Other Federal Law.--Except as provided in this section,
nothing in this subtitle shall be deemed to affect any defense
available to a defendant in a health care lawsuit or action under any
other provision of Federal law.
``SEC. 3419. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.
``(a) Health Care Lawsuits.--The provisions governing health care
lawsuits set forth in this subtitle preempt, subject to subsections (b)
and (c), State law to the extent that State law prevents the
application of any provisions of law established by or under this
subtitle. The provisions governing health care lawsuits set forth in
this subtitle supersede chapter 171 of title 28, United States Code, to
the extent that such chapter--
``(1) provides for a greater amount of damages or
contingent fees, a longer period in which a health care lawsuit
may be commenced, or a reduced applicability or scope of
periodic payment of future damages, than provided in this
subtitle; or
``(2) prohibits the introduction of evidence regarding
collateral source benefits, or mandates or permits subrogation
or a lien on collateral source benefits.
``(b) Protection of States' Rights and Other Laws.--(1) Any issue
that is not governed by any provision of law established by or under
this subtitle (including State standards of negligence) shall be
governed by otherwise applicable State or Federal law.
``(2) This subtitle shall not preempt or supersede any State or
Federal law that imposes greater procedural or substantive protections
for health care providers and health care organizations from liability,
loss, or damages than those provided by this subtitle or create a cause
of action.
``(c) State Flexibility.--No provision of this subtitle shall be
construed to preempt--
``(1) any State law (whether effective before, on, or after
the date of the enactment of this Act) that specifies a
particular monetary amount of compensatory or punitive damages
(or the total amount of damages) that may be awarded in a
health care lawsuit, regardless of whether such monetary amount
is greater or lesser than is provided for under this subtitle,
notwithstanding section 4(a); or
``(2) any defense available to a party in a health care
lawsuit under any other provision of State or Federal law.''.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Health.
Referred to the Subcommittee on the Constitution.
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