1.
This Act may be cited as the
Pregnancy and Trauma Care Access
Protection Act of 2005
.
2.
Encouraging speedy resolution of claims
(a)
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)
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)
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.
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)
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.
4.
Maximizing patient recovery
(a)
Court supervision of share of damages actually paid to
claimants
(1)
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)
(A)
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)
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)
331/3 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)
(1)
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)
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)
(1)
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)
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)
The limitations in this subsection shall not apply to expert
witnesses testifying as to the degree or permanency of medical or physical
impairment.
5.
Promoting fairness in recovering health benefits and preventing
double recoveries
(a)
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)
This section shall apply to any health care lawsuit that is
settled or resolved by a fact finder.
6.
(a)
Punitive damages permitted
(1)
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)
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)
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)
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)
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 providersA
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.
7.
Authorization of payment of future damages to claimants in
health care lawsuits
(a)
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)
This section applies to all actions which have not been first set
for trial or retrial before the effective date of this Act.
8.
(a)
(1)
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)
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)
(1)
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)
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)
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.
9.
State flexibility and protection of States rights
(a)
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)
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)
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.
10.
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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.
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.