[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2103 Introduced in House (IH)]
107th CONGRESS
1st Session
H. R. 2103
To establish limits on medical malpractice claims, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 7, 2001
Mr. Greenwood (for himself, Mr. Thomas, Mrs. Johnson of Connecticut,
Mr. Shays, Mr. Ney, and Mr. Toomey) introduced the following bill;
which was referred to the Committee on the Judiciary, and in addition
to the Committee on Energy and Commerce, 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 establish limits on medical malpractice claims, 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 ``Medical Malpractice Rx Act''.
SEC. 2. FEDERAL REFORM OF HEALTH CARE LIABILITY ACTIONS.
(a) Applicability.--This Act shall apply with respect to any health
care liability action brought in any State or Federal court and to any
health care liability claim subject to an ADR, except that this Act
shall not apply to--
(1) an action for damages arising from a vaccine-related
injury or death to the extent that title XXI of the Public
Health Service Act applies to the action, or
(2) an action under the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1001 et seq.).
(b) Preemption.--This Act shall not preempt any State law that--
(1) provides for defenses or places limitations on a
person's liability in addition to those contained in this Act
or otherwise imposes greater restrictions than those provided
in this Act; or
(2) imposes greater restrictions on liability or damages
than those provided in this Act.
No provision of this Act shall be construed to preempt or displace the
implementation of any State sponsored or private ADR system.
(c) Limitations.--This Act supersedes chapter 171 of title 28,
United States Code, (relating to tort claims procedure) and preempts
State law with respect to both procedural and substantive matters only
to the extent that such chapter or State law differs from any provision
of this Act or provision established under this Act. Section 5 shall
supersede or preempt any provision of such chapter or State law which
prohibits the introduction of evidence regarding collateral source
benefits or mandates or permits subrogation or a lien on the
plaintiff's award for the cost of providing collateral source benefits.
Any issue that is not governed by any provision of this Act shall be
governed by otherwise applicable Federal or State law.
(d) Effect on Sovereign Immunity and Choice of Law or Venue.--
Nothing in subsection (c) shall be construed to--
(1) waive or affect any defense of sovereign immunity
asserted by any State under any provision of law;
(2) waive or affect any defense of sovereign immunity
asserted by the United States;
(3) affect the applicability of any provision of the
Foreign Sovereign Immunities Act of 1976;
(4) preempt State choice-of-law rules with respect to
claims brought by a foreign nation or a citizen of a foreign
nation; or
(5) affect the right of any court to transfer venue or to
apply the law of a foreign nation or to dismiss a claim of a
foreign nation or of a citizen of a foreign nation on the
ground of inconvenient forum.
(e) Amount in Controversy.--In an action to which this Act applies
and which is brought under section 1332 of title 28, United States
Code, the amount of noneconomic damages or punitive damages, and
attorneys' fees or costs, shall not be included in determining whether
the matter in controversy exceeds the sum or value of $75,000.
(f) Federal Court Jurisdiction Not Established on Federal Question
Grounds.--Nothing in this Act shall be construed to establish any
jurisdiction in the district courts of the United States over health
care liability actions on the basis of section 1331 or 1337 of title
28, United States Code.
SEC. 3. STATUTE OF LIMITATIONS.
A health care liability action may not be brought after the
expiration of the 2-year period that begins on the date on which the
alleged injury that is the subject of the action was discovered or
should reasonably have been discovered, but in no case after the
expiration of the 5-year period that begins on the date the alleged
injury occurred.
SEC. 4. CALCULATION AND PAYMENT OF DAMAGES.
(a) Joint and Several Liability.--In any health care liability
action, a defendant shall be liable only for the amount of noneconomic
damages attributable to such defendant in direct proportion to such
defendant's share of fault or responsibility for the claimant's actual
damages, as determined by the trier of fact. In all such cases, the
liability of a defendant for noneconomic damages shall be several and
not joint.
(b) Limitation on Noneconomic Damages.--The total amount of
noneconomic damages that may be awarded to a claimant for losses
resulting from the injury which is the subject of a health care
liability action may not exceed $500,000, regardless of the number of
parties against whom the action is brought or the number of actions
brought with respect to the injury. The limitation under this paragraph
shall not apply to an action for damages based solely on intentional
denial of medical treatment necessary to preserve a patient's life that
the patient is otherwise qualified to receive, against the wishes of a
patient, or if the patient is incompetent, against the wishes of the
patient's guardian, on the basis of the patient's present or predicated
age, disability, degree of medical dependency, or quality of life.
(c) Treatment of Punitive Damages.--
(1) General rule.--Punitive damages may, to the extent
permitted by applicable State law, be awarded in any health
care liability action for harm in any Federal or State court
against a defendant if the claimant establishes by clear and
convincing evidence that the harm suffered was the result of
conduct--
(A) specifically intended to cause harm, or
(B) conduct manifesting a conscious, flagrant
indifference to the rights or safety of others.
(2) Applicability.--This subsection shall apply to any
health care liability action brought in any Federal or State
court on any theory where punitive damages are sought. This
subsection does not create a cause of action for punitive
damages. This subsection does not preempt or supersede any
State or Federal law to the extent that such law would further
limit the award of punitive damages.
(3) Bifurcation.--At the request of any party, the trier of
fact shall consider in a separate proceeding whether punitive
damages are to be awarded and the amount of such award. If a
separate proceeding is requested, evidence relevant only to the
claim of punitive damages, as determined by applicable State
law, shall be inadmissible in any proceeding to determine
whether actual damages are to be awarded.
(4) Drugs and devices.--
(A) In general.--(i) Punitive damages shall not be
awarded against a manufacturer or product seller of a
drug or medical device which caused the claimant's harm
where--
(I) such drug or device was subject to
premarket approval by the Food and Drug
Administration with respect to the safety of
the formulation or performance of the aspect of
such drug or device which caused the claimant's
harm, or the adequacy of the packaging or
labeling of such drug or device which caused
the harm, and such drug, device, packaging, or
labeling was approved by the Food and Drug
Administration; or
(II) the drug is generally recognized as
safe and effective pursuant to conditions
established by the Food and Drug Administration
and applicable regulations, including packaging
and labeling regulations.
(ii) Clause (i) shall not apply in any case in
which the defendant, before or after premarket approval
of a drug or device--
(I) intentionally and wrongfully withheld
from or misrepresented to the Food and Drug
Administration information concerning such drug
or device 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 relevant to the harm suffered by
the claimant, or
(II) made an illegal payment to an official
or employee of the Food and Drug Administration
for the purpose of securing or maintaining
approval of such drug or device.
(B) Packaging.--In a health care liability action
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 court by clear and
convincing evidence to be substantially out of
compliance with such regulations.
(d) Periodic Payments for Future Losses.--
(1) General rule.--In any health care liability action in
which the damages awarded for future economic and noneconomic
loss exceeds $50,000, a person shall not be required to pay
such damages in a single, lump-sum payment, but shall be
permitted to make such payments periodically based on when the
damages are found likely to occur, as such payments are
determined by the court.
(2) Finality of judgment.--The judgment of the court
awarding periodic payments under this subsection may not, in
the absence of fraud, be reopened at any time to contest,
amend, or modify the schedule or amount of the payments.
(3) Lump-sum settlements.--This subsection shall not be
construed to preclude a settlement providing for a single,
lump-sum payment.
(e) Treatment of Collateral Source Payments.--
(1) Introduction into evidence.--In any health care
liability action, any defendant may introduce evidence of
collateral source payments. If any defendant elects to
introduce such evidence, the claimant 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 claimant to
secure the right to such collateral source payments.
(2) No subrogation.--No provider of collateral source
payments shall recover any amount against the claimant or
receive any lien or credit against the claimant's recovery or
be equitably or legally subrogated the right of the claimant in
a health care liability action.
(3) Application to settlements.--This subsection shall
apply to an action that is settled as well as an action that is
resolved by a fact finder.
SEC. 5. AWARD OF ATTORNEY'S FEES.
(a) Limitations on Contingent Fees.--
(1) In general.--The total of all contingent fees for
representing all claimants in a health care liability claim or
action shall not exceed the following limits:
(A) 40 percent of the first $50,000 recovered by
the claimant.
(B) 33\1/3\ percent of the next $50,000 recovered
by the claimant.
(C) 25 percent of the next $500,000 recovered by
the claimant.
(D) 15 percent of any amount by which the recovery
by the claimant exceeds $600,000.
(2) Applicability.--The limitations prescribed by paragraph
(1) shall apply whether the recovery is by judgment,
settlement, mediation, arbitration, or any other form of ADR. A
court acting in a health care liability claim or action
involving a minor or incompetent person retains the authority
to authorize or approve a fee that is less than the maximum
permitted under paragraph (1).
(3) Definitions.--For purposes of this subsection:
(A) Contingent fee.--The term ``contingent fee''
includes all compensation to any person which is
payable only if a recovery is effected on behalf of one
or more claimants.
(B) 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 attorney's office overhead
costs or charges for legal services are not deductible
disbursements of costs for such purpose.
(b) Hours Worked.--Counsel of record in a health care liability
action shall maintain accurate and up-to-date records of hours worked
for such action regardless of the fee arrangement with the attorney's
client.
(c) Costs.--Nothing in this section shall affect the right of a
party to be awarded costs under applicable law.
(d) Effective Date.--This section shall apply with respect to a
health care liability action which is brought after the date of the
enactment of this Act for a claim arising from an injury occurring
after such date of enactment.
SEC. 6. ALTERNATIVE DISPUTE RESOLUTION.
Any ADR used to resolve a health care liability action or claim
shall contain provisions relating to statute of limitations,
noneconomic damages, joint and several liability, punitive damages,
collateral source rule, periodic payments, and award of attorney's fees
which are consistent with the provisions relating to such matters in
this Act.
SEC. 7. DEFINITIONS.
As used in this Act:
(1) Actual damages.--The term ``actual damages'' means
damages awarded to pay for economic loss.
(2) ADR.--The term ``ADR'' means an alternative dispute
resolution system established under Federal or State law that
provides for the resolution of health care liability claims in
a manner other than through health care liability actions.
(3) Claimant.--The term ``claimant'' means any person who
brings a health care liability action and any person on whose
behalf such an action is brought. If such action is brought
through or on behalf of an estate, the term includes the
claimant's decedent. If such action is brought through or on
behalf of a minor or incompetent, the term includes the
claimant's legal guardian.
(4) Clear and convincing evidence.--The term ``clear and
convincing evidence'' is that measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be
established. Such measure or degree of proof is more than that
required under preponderance of the evidence but less than that
required for proof beyond a reasonable doubt.
(5) Collateral source payments.--The term ``collateral
source payments'' means any amount paid or reasonably likely to
be paid in the future to or on behalf of a claimant, or any
service, product, or other benefit provided or reasonably
likely to be provided in the future to or on behalf of a
claimant, as a result of an injury or wrongful death, pursuant
to--
(A) any State or Federal health, sickness, income-
disability, accident or workers' compensation Act;
(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.
(6) Drug.--The term ``drug'' has the meaning given such
term in section 201(g)(1) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321(g)(1)).
(7) 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, loss due to death, burial costs, and loss of
business or employment opportunities.
(8) Harm.--The term ``harm'' means any legally cognizable
wrong or injury for which punitive damages may be imposed.
(9) Health benefit plan.--The term ``health benefit plan''
means--
(A) a hospital or medical expense incurred policy
or certificate,
(B) a hospital or medical service plan contract,
(C) a health maintenance subscriber contract, or
(D) a Medicare+Choice product (offered under part C
of title XVIII of the Social Security Act),
that provides benefits with respect to health care services.
(10) Health care liability action.--The term ``health care
liability action'' means a civil action brought in a State or
Federal court or pursuant to alternative dispute resolution
against a health care provider, an entity which is obligated to
provide or pay for health benefits under any health benefit
plan (including any person or entity acting under a contract or
arrangement to provide or administer any health benefit), or
the manufacturer, distributor, supplier, marketer, promoter, or
seller of a medical product, in which the claimant alleges a
claim (including third party claims, cross claims, counter
claims, or contribution claims) based upon the provision of (or
the failure to provide or pay for) health care services or the
use of a medical product, regardless of the theory of liability
on which the claim is based or the number of plaintiffs,
defendants, or causes of action.
(11) Health care liability claim.--The term ``health care
liability claim'' means a claim in which the claimant alleges
that injury was caused by the provision of (or the failure to
provide) health care services or medical products.
(12) Health care provider.--The term ``health care
provider'' means any person that is engaged in the delivery of
health care services in a State and that is required by the
laws or regulations of the State to be licensed or certified by
the State to engage in the delivery of such services in the
State.
(13) Health care service.--The term ``health care service''
means any service for which payment may be made under a health
benefit plan including services related to the delivery or
administration of such service.
(14) Medical product.--The term ``medical product'' means a
drug (as defined in section 201(g)(1)) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321(g)(1)) or a medical
device (as defined in section 201(h)) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321(h)), including any
component or raw material used in a drug or device but
excluding health care services.
(15) Noneconomic damages.--The term ``noneconomic damages''
means damages paid to an individual for pain and suffering,
inconvenience, emotional distress, mental anguish, loss of
consortium, injury to reputation, humiliation, and other
nonpecuniary losses.
(16) Person.--The term ``person'' means any individual,
corporation, company, association, firm, partnership, society,
joint stock company, or any other entity, including any
governmental entity.
(17) Product seller.--
(A) In general.--Subject to subparagraph (B), the
term ``product seller'' means a person who, in the
course of a business conducted for that purpose--
(i) sells, distributes, rents, leases,
prepares, blends, packages, labels, or is
otherwise involved in placing, a product in the
stream of commerce, or
(ii) installs, repairs, or maintains the
harm-causing aspect of a product.
(B) Exclusion.--Such term does not include--
(i) a seller or lessor of real property;
(ii) a provider of professional services in
any case in which the sale or use of a product
is incidental to the transaction and the
essence of the transaction is the furnishing of
judgment, skill, or services; or
(iii) any person who--
(I) acts in only a financial
capacity with respect to the sale of a
product; or
(II) leases a product under a lease
arrangement in which the selection,
possession, maintenance, and operation
of the product are controlled by a
person other than the lessor.
(18) Punitive damages.--The term ``punitive damages'' means
damages awarded against any person not to compensate for actual
injury suffered, but to punish or deter such person or others
from engaging in similar behavior in the future.
(19) State.--The term ``State'' means each of the several
States, the District of Columbia, Puerto Rico, the Virgin
Islands, Guam, American Samoa, the Northern Mariana Islands,
and any other territory or possession of the United States.
SEC. 8. EFFECTIVE DATE.
This Act will apply to any health care liability action brought in
a Federal or State court and to any health care liability claim subject
to an ADR system, that is initiated on or after the date of enactment
of this Act, except that any health care liability claim or action
arising from an injury occurring prior to the date of enactment of this
Act shall be governed by the applicable statute of limitations
provisions in effect at the time the injury occurred.
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