[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 366 Introduced in Senate (IS)]







109th CONGRESS
  1st Session
                                 S. 366

To improve women's access to health care services and provide improved 
  medical care by reducing the excessive burden the liability system 
   places on the delivery of obstetrical and gynecological services.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 10, 2005

 Mr. Gregg (for himself and Mr. Ensign) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To improve women's access to health care services and provide improved 
  medical care by reducing the excessive burden the liability system 
   places on the delivery of obstetrical and gynecological services.

    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 ``Healthy Mothers and Healthy Babies 
Access to Care Act of 2005''.

SEC. 2. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

    (a) In General.--Except as otherwise provided for in this section, 
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.
    (b) General Exception.--The time for the commencement of a health 
care lawsuit shall not exceed 3 years after the date of manifestation 
of injury unless the tolling of time was delayed as a result of--
            (1) 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.
    (c) Minors.--An action by a minor shall be commenced within 3 years 
from the date of the alleged manifestation of injury except that if 
such minor is under the full age of 6 years, such action shall be 
commenced within 3 years of the manifestation of injury, or prior to 
the eighth birthday of the minor, 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. 3. COMPENSATING PATIENT INJURY.

    (a) Unlimited Amount of Damages for Actual Economic Losses in 
Health Care Lawsuits.--In any health care lawsuit, nothing in this Act 
shall limit the recovery by a claimant of the full amount of the 
available economic damages, notwithstanding the limitation contained in 
subsection (b).
    (b) Additional Noneconomic Damages.--In any health care lawsuit, 
the amount of noneconomic damages recovered, if otherwise available 
under applicable Federal or State law, 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.--In any health 
care lawsuit--
            (1) an award for future noneconomic damages shall not be 
        discounted to present value;
            (2) the jury shall not be informed about the maximum award 
        for noneconomic damages under subsection (b);
            (3) 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; and
            (4) 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. 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. 4. MAXIMIZING PATIENT RECOVERY.

    (a) Court Supervision of Share of Damages Actually Paid to 
Claimants.--
            (1) In general.--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.
            (2) Contingency fees.--
                    (A) In general.--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.
                    (B) Limitation.--The total of all contingent fees 
                for representing all claimants in a health care lawsuit 
                shall not exceed the following limits:
                            (i) 40 percent of the first $50,000 
                        recovered by the claimant(s).
                            (ii) 33\1/3\ percent of the next $50,000 
                        recovered by the claimant(s).
                            (iii) 25 percent of the next $500,000 
                        recovered by the claimant(s).
                            (iv) 15 percent of any amount by which the 
                        recovery by the claimant(s) is in excess of 
                        $600,000.
    (b) Applicability.--
            (1) In general.--The limitations in subsection (a) shall 
        apply whether the recovery is by judgment, settlement, 
        mediation, arbitration, or any other form of alternative 
        dispute resolution.
            (2) Minors.--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.
    (c) Expert Witnesses.--
            (1) Requirement.--No individual shall be qualified to 
        testify as an expert witness concerning issues of negligence in 
        any health care lawsuit against a defendant unless such 
        individual--
                    (A) except as required under paragraph (2), is a 
                health care professional who--
                            (i) is appropriately credentialed or 
                        licensed in 1 or more States to deliver health 
                        care services; and
                            (ii) typically treats the diagnosis or 
                        condition or provides the type of treatment 
                        under review; and
                    (B) 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 individual was 
                substantially familiar with applicable standards of 
                care and practice as they relate to the act or omission 
                which is the subject of the lawsuit on the date of the 
                incident.
            (2) Physician review.--In a health care lawsuit, if the 
        claim of the plaintiff involved treatment that is recommended 
        or provided by a physician (allopathic or osteopathic), an 
        individual shall not be qualified to be an expert witness under 
        this subsection with respect to issues of negligence concerning 
        such treatment unless such individual is a physician.
            (3) Other health care providers.--With respect to a lawsuit 
        described in paragraph (1), a court shall not permit an expert 
        in one health care provider field to testify against a 
        defendant in another health care provider field unless, in 
        addition to a showing of substantial familiarity in accordance 
        with paragraph (1)(B), there is a showing that the standards of 
        care and practice in the two health care provider fields are 
        similar.
            (4) Limitation.--The limitations in this subsection shall 
        not apply to expert witnesses testifying as to the degree or 
        permanency of medical or physical impairment.

SEC. 5. PROMOTING FAIRNESS IN RECOVERING HEALTH BENEFITS AND PREVENTING 
              DOUBLE RECOVERIES.

    (a) In General.--The amount of any damages received by a claimant 
in any health care lawsuit shall be reduced by the court by the amount 
of any collateral source benefits to which the claimant is entitled, 
less any insurance premiums or other payments made by the claimant (or 
by the spouse, parent, child, or legal guardian of the claimant) to 
obtain or secure such benefits.
    (b) Preservation of Current Law.--Where a payor of collateral 
source benefits has a right of recovery by reimbursement or subrogation 
and such right is permitted under Federal or State law, subsection (a) 
shall not apply.
    (c) Application of Provision.--This section shall apply to any 
health care lawsuit that is settled or resolved by a fact finder.

SEC. 6. PUNITIVE DAMAGES.

    (a) Punitive Damages Permitted.--
            (1) In general.--Punitive damages may, if otherwise 
        available under 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.
            (2) Filing of 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.
            (3) Separate proceeding.--At the request of any party in a 
        health care lawsuit, the trier of fact shall consider in a 
        separate proceeding--
                    (A) whether punitive damages are to be awarded and 
                the amount of such award; and
                    (B) 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.
            (4) Limitation where no compensatory damages are awarded.--
        In any health care lawsuit where no judgment for compensatory 
        damages is rendered against a person, no punitive damages may 
        be awarded with respect to the claim in such lawsuit against 
        such person.
    (b) Determining Amount of Punitive Damages.--
            (1) Factors considered.--In determining the amount of 
        punitive damages under this section, 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 awarded 
        in a health care lawsuit may not exceed an amount equal to two 
        times the amount of economic damages awarded in the lawsuit or 
        $250,000, whichever is greater. The jury shall not be informed 
        of the limitation under the preceding sentence.
    (c) Liability of Health Care Providers.--A health care provider who 
prescribes, or who dispenses pursuant to a prescription, a drug or 
device (including blood products) approved by the Food and Drug 
Administration shall not be named as a party to a product liability 
lawsuit invoking such drug or device and shall not be liable to a 
claimant in a class action lawsuit against the manufacturer, 
distributor, or product seller of such drug or device.

SEC. 7. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO CLAIMANTS IN 
              HEALTH CARE LAWSUITS.

    (a) In General.--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 effective date of 
this Act.

SEC. 8. EFFECT ON OTHER LAWS.

    (a) General Vaccine Injury.--
            (1) In general.--To the extent that title XXI of the Public 
        Health Service Act establishes a Federal rule of law applicable 
        to a civil action brought for a vaccine-related injury or 
        death--
                    (A) this Act shall not affect the application of 
                the rule of law to such an action; and
                    (B) any rule of law prescribed by this Act in 
                conflict with a rule of law of such title XXI shall not 
                apply to such action.
            (2) Exception.--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 the Public Health 
        Service Act does not apply, then this Act or otherwise 
        applicable law (as determined under this Act) will apply to 
        such aspect of such action.
    (b) Smallpox Vaccine Injury.--
            (1) In general.--To the extent that part C of title II of 
        the Public Health Service Act establishes a Federal rule of law 
        applicable to a civil action brought for a smallpox vaccine-
        related injury or death--
                    (A) this Act shall not affect the application of 
                the rule of law to such an action; and
                    (B) any rule of law prescribed by this Act in 
                conflict with a rule of law of such part C shall not 
                apply to such action.
            (2) Exception.--If there is an aspect of a civil action 
        brought for a smallpox vaccine-related injury or death to which 
        a Federal rule of law under part C of title II of the Public 
        Health Service Act does not apply, then this Act or otherwise 
        applicable law (as determined under this Act) will apply to 
        such aspect of such action.
    (c) Other Federal Law.--Except as provided in this section, nothing 
in this Act 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. 9. STATE FLEXIBILITY AND PROTECTION OF STATES RIGHTS.

    (a) Health Care Lawsuits.--The provisions governing health care 
lawsuits set forth in this Act shall 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 Act. 
The provisions governing health care lawsuits set forth in this Act 
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 Act; or
            (2) prohibits the introduction of evidence regarding 
        collateral source benefits.
    (b) Preemption of Certain State Laws.--No provision of this Act 
shall be construed to preempt 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 Act, notwithstanding section 3(a).
    (c) Protection of State's Rights and Other Laws.--
            (1) In general.--Any issue that is not governed by a 
        provision of law established by or under this Act (including 
        the State standards of negligence) shall be governed by 
        otherwise applicable Federal or State law.
            (2) Rule of construction.--Nothing in this Act shall be 
        construed to--
                    (A) preempt or supersede any Federal or State law 
                that imposes greater procedural or substantive 
                protections for a health care provider, health care 
                organization, or the manufacturer, distributor, 
                supplier, marketer, promoter, or seller of a medical 
                product from liability, loss, or damages than those 
                provided by this Act;
                    (B) notwithstanding any other provision of this 
                section, preempt or supercede any State law that 
                provides for a specific monetary limit on total damages 
                (including compensatory damages) that may be awarded in 
                a health care lawsuit regardless of whether such 
                monetary limit is greater or lesser than is provided 
                for under this Act;
                    (C) create a cause of action that is not otherwise 
                available under Federal or State law; or
                    (D) affect the scope of preemption of any other 
                Federal law.

SEC. 10. DEFINITIONS.

    In this Act:
            (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. Such 
        term 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 goods or services.--The term ``health care 
        goods or services'' means any obstetrical or gynecological 
        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, care, or treatment of any obstetrical or 
        gynecological-related human disease or impairment, or the 
        assessment of the health of human beings.
            (8) Health care lawsuit.--The term ``health care lawsuit'' 
        means any health care liability claim concerning the provision 
        of obstetrical or gynecological goods or services affecting 
        interstate commerce, or any health care liability action 
        concerning the provision of (or the failure to provide) 
        obstetrical or gynecological goods or services affecting 
        interstate commerce, brought in a State or Federal court or 
        pursuant to an alternative dispute resolution system, against a 
        physician or other health care provider who delivers 
        obstetrical or gynecological services, a health care 
        organization (only with respect to obstetrical or gynecological 
        services), or the manufacturer, distributor, supplier, 
        marketer, promoter, or seller of a medical product (only with 
        respect to a medical product used in connection with 
        obstetrical or gynecological services), 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.
            (9) 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 physician or other health care provider who 
        delivers obstetrical or gynecological services, a health care 
        organization (only with respect to obstetrical or gynecological 
        services), or the manufacturer, distributor, supplier, 
        marketer, promoter, or seller of a medical product (only with 
        respect to a medical product used in connection with 
        obstetrical or gynecological services), 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.
            (10) Health care liability claim.--The term ``health care 
        liability claim'' means a demand by any person, whether or not 
        pursuant to ADR, against a physician or other health care 
        provider who delivers obstetrical or gynecological services, a 
        health care organization (only with respect to obstetrical or 
        gynecological services), or the manufacturer, distributor, 
        supplier, marketer, promoter, or seller of a medical product 
        (only with respect to a medical product used in connection with 
        obstetrical or gynecological services), including 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) obstetrical or 
        gynecological services, 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.
            (11) 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.
            (12) 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.
            (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 or device intended for humans. The terms ``drug'' and 
        ``device'' 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), 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) Obstetrical or gynecological services.--The term 
        ``obstetrical or gynecological services'' means services for 
        pre-natal care or labor and delivery, including the immediate 
        postpartum period (as determined in accordance with the 
        definition of postpartum used for purposes of title XIX of the 
        Social Security Act (42 U.S.C. 1396 et seq.)).
            (17) Punitive damages.--The term ``punitive damages'' means 
        damages awarded, for the purpose of punishment or deterrence, 
        and not solely for compensatory purposes, against a physician 
        or other health care provider who delivers obstetrical or 
        gynecological services. Punitive damages are neither economic 
        nor noneconomic damages.
            (18) 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.
            (19) State.--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, the Trust Territory of the Pacific Islands, 
        and any other territory or possession of the United States, or 
        any political subdivision thereof.

SEC. 11. APPLICABILITY; EFFECTIVE DATE.

    This Act shall apply to any health care lawsuit brought in a 
Federal or State court, or subject to an alternative dispute resolution 
system, that is initiated on or after the date of the enactment of this 
Act, except that any health care lawsuit 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.
                                 <all>