[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 367 Introduced in Senate (IS)]
109th CONGRESS
1st Session
S. 367
To improve women's access to health care services, and the access of
all individuals to emergency and trauma care services, by reducing the
excessive burden the liability system places on the delivery of such
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 the access of
all individuals to emergency and trauma care services, by reducing the
excessive burden the liability system places on the delivery of such
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 ``Pregnancy and Trauma Care Access
Protection 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(b).
(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) Emergency medical condition.--The term ``emergency
medical condition'' means a medical condition manifesting
itself by acute symptoms of sufficient severity (including
severe pain) such that the absence of immediate medical
attention could reasonably be expected to result in placing the
health of the individual (or, with respect to a pregnant woman,
the health of the woman or her unborn child) in serious
jeopardy, serious impairment to bodily functions, or serious
dysfunction of any bodily organ or part.
(8) Emergency or trauma care services.--The term
``emergency or trauma care services'' means health care goods
and services that are furnished to an individual with an
emergency medical condition, including the response to the
emergency medical condition, screening, stabilization and
treatment of the emergency medical condition.
(9) Health care goods or services.--The term ``health care
goods or services'' means--
(A) 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; and
(B) 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
are involved in the provision of emergency or trauma
care services.
(10) 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 emergency or trauma care 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, or emergency or trauma care
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, or
emergency or trauma care services, a health care organization
(only with respect to obstetrical or gynecological services or
emergency or trauma care 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 or
emergency or trauma care 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.
(11) 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
provides obstetrical or gynecological services or emergency or
trauma care services, a health care organization (only with
respect to obstetrical or gynecological services or emergency
or trauma care 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 or emergency or trauma
care 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.
(12) 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 or
emergency or trauma care services, a health care organization
(only with respect to obstetrical or gynecological services or
emergency or trauma care 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 or
emergency or trauma care 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 or emergency or trauma care 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.
(13) 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.
(14) 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.
(15) 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.
(16) 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.
(17) 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.
(18) 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.)).
(19) 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 or emergency or trauma care services, or
against a manufacturer, distributor, supplier, marketer,
promoter, or seller of a medical product. Punitive damages are
neither economic nor noneconomic damages.
(20) 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.
(21) 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.
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