[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1468 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 1468

    To provide health care liability reform, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 12, 2009

 Mr. Burgess introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
    To provide health care liability reform, 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Medical Justice 
Act of 2009''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Cap on non-economic damages against health care practitioners.
Sec. 3. Cap on non-economic damages against health care institutions.
Sec. 4. Cap, in wrongful death cases, on total damages against any 
                            single health care practitioner.
Sec. 5. Limitation of insurer liability when insurer rejects certain 
                            settlement offers.
Sec. 6. Mandatory jury instruction on cap on damages.
Sec. 7. Determination of negligence; mandatory jury instruction.
Sec. 8. Expert reports required to be served in civil actions.
Sec. 9. Expert opinions relating to physicians may be provided only by 
                            actively practicing physicians.
Sec. 10. Payment of future damages on periodic or accrual basis.
Sec. 11. Unanimous jury required for punitive or exemplary damages.
Sec. 12. Proportionate liability.
Sec. 13. Defense-initiated settlement process.
Sec. 14. Statute of limitations; statute of repose.
Sec. 15. Limitation on liability for Good Samaritans providing 
                            emergency health care.
Sec. 16. Definitions.

SEC. 2. CAP ON NON-ECONOMIC DAMAGES AGAINST HEALTH CARE PRACTITIONERS.

    When an individual is injured or dies as the result of health care, 
a person entitled to non-economic damages may not recover, from the 
class of liable health care practitioners (regardless of the theory of 
liability), more than $250,000 such damages.

SEC. 3. CAP ON NON-ECONOMIC DAMAGES AGAINST HEALTH CARE INSTITUTIONS.

    When an individual is injured or dies as the result of health care, 
a person entitled to non-economic damages may not recover--
            (1) from any single liable health care institution 
        (regardless of the theory of liability), more than $250,000 
        such damages; and
            (2) from the class of liable health care institutions 
        (regardless of the theory of liability), more than $500,000 
        such damages.

SEC. 4. CAP, IN WRONGFUL DEATH CASES, ON TOTAL DAMAGES AGAINST ANY 
              SINGLE HEALTH CARE PRACTITIONER.

    (a) In General.--When an individual dies as the result of health 
care, a person entitled to damages may not recover, from any single 
liable health care practitioner (regardless of the theory of 
liability), more than $1,400,000 in total damages.
    (b) Total Damages Defined.--In this section, the term ``total 
damages'' includes compensatory damages, punitive damages, statutory 
damages, and any other type of damages.
    (c) Adjustment for Inflation.--For each calendar year after the 
calendar year of the enactment of this Act, the dollar amount referred 
to in subsection (a) shall be adjusted to reflect changes in the 
Consumer Price Index of the Bureau of Labor Statistics of the 
Department of Labor. The adjustment shall be based on the relationship 
between--
            (1) the Consumer Price Index data most recently published 
        as of January 1 of the calendar year of the enactment of this 
        Act; and
            (2) the Consumer Price Index data most recently published 
        as of January 1 of the calendar year concerned.
    (d) Applicability of Adjustment.--The dollar amount that applies to 
a recovery is the dollar amount for the calendar year during which the 
amount of the recovery is made final.

SEC. 5. LIMITATION OF INSURER LIABILITY WHEN INSURER REJECTS CERTAIN 
              SETTLEMENT OFFERS.

    In a civil action, to the extent the civil action seeks damages for 
the injury or death of an individual as the result of health care, when 
the insurer of a health care practitioner or health care institution 
rejects a reasonable settlement offer within policy limits, the insurer 
is not, by reason of that rejection, liable for damages in an amount 
that exceeds the liability of the insured.

SEC. 6. MANDATORY JURY INSTRUCTION ON CAP ON DAMAGES.

    In a civil action tried to a jury, to the extent the civil action 
seeks damages for the injury or death of an individual as the result of 
health care, the court shall instruct the jury that the jury is not to 
consider whether, or to what extent, a limitation on damages applies.

SEC. 7. DETERMINATION OF NEGLIGENCE; MANDATORY JURY INSTRUCTION.

    (a) In General.--When an individual is injured or dies as the 
result of health care, liability for negligence may not be based solely 
on a bad result.
    (b) Mandatory Jury Instruction.--In a civil action tried to a jury, 
to the extent the civil action seeks damages for the injury or death of 
an individual as the result of health care and alleges liability for 
negligence, the court shall instruct the jury as provided in subsection 
(a).

SEC. 8. EXPERT REPORTS REQUIRED TO BE SERVED IN CIVIL ACTIONS.

    (a) Service Required.--To the extent a pleading filed in a civil 
action seeks damages against a health care practitioner for the injury 
or death of an individual as the result of health care, the party 
filing the pleading shall, not later than 120 days after the date on 
which the pleading was filed, serve on each party against whom such 
damages are sought a qualified expert report.
    (b) Qualified Expert Report.--As used in subsection (a), a 
qualified expert report is a written report of a qualified health care 
expert that--
            (1) includes a curriculum vitae for that expert; and
            (2) sets forth a summary of the expert opinion of that 
        expert as to--
                    (A) the standard of care applicable to that 
                practitioner;
                    (B) how that practitioner failed to meet that 
                standard of care; and
                    (C) the causal relationship between that failure 
                and the injury or death of the individual.
    (c) Motion To Enforce.--A party not served as required by 
subsection (a) may move the court to enforce that subsection. On such a 
motion, the court--
            (1) shall dismiss, with prejudice, the pleading as it 
        relates to that party; and
            (2) shall award to that party the attorney fees reasonably 
        incurred by that party to respond to that pleading.
    (d) Use of Expert Report.--
            (1) In general.--Except as otherwise provided in this 
        section, a qualified expert report served under subsection (a) 
        may not, in that civil action--
                    (A) be offered by any party as evidence;
                    (B) be used by any party in discovery or any other 
                pretrial proceeding; or
                    (C) be referred to by any party at trial.
            (2) Violations.--
                    (A) By other party.--If paragraph (1) is violated 
                by a party other than the party who served the report, 
                the court shall, on motion of any party or on its own 
                motion, take such measures as the court considers 
                appropriate, which may include the imposition of 
                sanctions.
                    (B) By serving party.--If paragraph (1) is violated 
                by the party who served the report, paragraph (1) shall 
                no longer apply to any party.

SEC. 9. EXPERT OPINIONS RELATING TO PHYSICIANS MAY BE PROVIDED ONLY BY 
              ACTIVELY PRACTICING PHYSICIANS.

    (a) In General.--A physician-related opinion may be provided only 
by an actively practicing physician who is determined by the court to 
be qualified on the basis of training and experience to render that 
opinion.
    (b) Considerations Required.--In determining whether an actively 
practicing physician is qualified under subsection (a), the court 
shall, except on good cause shown, consider whether that physician is 
board-certified, or has other substantial training, in an area of 
medical practice relevant to the health care to which the opinion 
relates.
    (c) Definitions.--In this section:
            (1) The term ``actively practicing physician'' means an 
        individual who--
                    (A) is licensed to practice medicine in the United 
                States or, if the individual is a defendant providing a 
                physician-related opinion with respect to the health 
                care provided by that defendant, is a graduate of a 
                medical school accredited by the Liaison Committee on 
                Medical Education or the American Osteopathic 
                Association;
                    (B) is practicing medicine when the opinion is 
                rendered, or was practicing medicine when the health 
                care was provided; and
                    (C) has knowledge of the accepted standards of care 
                for the health care to which the opinion relates.
            (2) The term ``physician-related opinion'' means an expert 
        opinion as to any one or more of the following:
                    (A) The standard of care applicable to a physician.
                    (B) Whether a physician failed to meet such a 
                standard of care.
                    (C) Whether there was a causal relationship between 
                such a failure by a physician and the injury or death 
                of an individual.
            (3) The term ``practicing medicine'' includes training 
        residents or students at an accredited school of medicine or 
        osteopathy, and serving as a consulting physician to other 
        physicians who provide direct patient care.

SEC. 10. PAYMENT OF FUTURE DAMAGES ON PERIODIC OR ACCRUAL BASIS.

    (a) In General.--When future damages are awarded against a health 
care practitioner to a person for the injury or death of an individual 
as a result of health care, and the present value of those future 
damages is $100,000 or more, that health care practitioner may move 
that the court order payment on a periodic or accrual basis of those 
damages. On such a motion, the court--
            (1) shall order that payment be made on an accrual basis of 
        future damages described in subsection (b)(1); and
            (2) may order that payment be made on a periodic or accrual 
        basis of any other future damages that the court considers 
        appropriate.
    (b) Future Damages Defined.--In this section, the term ``future 
damages'' means--
            (1) the future costs of medical, health care, or custodial 
        services;
            (2) noneconomic damages, such as pain and suffering or loss 
        of consortium;
            (3) loss of future earnings; and
            (4) any other damages incurred after the award is made.

SEC. 11. UNANIMOUS JURY REQUIRED FOR PUNITIVE OR EXEMPLARY DAMAGES.

    When an individual is injured or dies as the result of health care, 
a jury may not award punitive or exemplary damages against a health 
care practitioner or health care institution unless the jury is 
unanimous with regard to both the liability of that party for such 
damages and the amount of the award of such damages.

SEC. 12. PROPORTIONATE LIABILITY.

    When an individual is injured or dies as the result of health care 
and a person is entitled to damages for that injury or death, each 
person responsible is liable only for a proportionate share of the 
total damages that directly corresponds to that person's proportionate 
share of the total responsibility.

SEC. 13. DEFENSE-INITIATED SETTLEMENT PROCESS.

    (a) In General.--In a civil action, to the extent the civil action 
seeks damages for the injury or death of an individual as the result of 
health care, a health care practitioner or health care institution 
against which such damages are sought may serve one or more qualified 
settlement offers under this section to a person seeking such damages. 
If the person seeking such damages does not accept such an offer, that 
person may thereafter serve one or more qualified settlement offers 
under this section to the party whose offer was not accepted.
    (b) Qualified Settlement Offer.--A qualified settlement offer under 
this section is an offer, in writing, to settle the matter as between 
the offeror and the offeree, which--
            (1) specifies that it is made under this section;
            (2) states the terms of settlement; and
            (3) states the deadline within which the offer must be 
        accepted.
    (c) Effect of Offer.--If the offeree of a qualified settlement 
offer does not accept that offer, and thereafter receives a judgment at 
trial that, as between the offeror and the offeree, is significantly 
less favorable than the terms of settlement in that offer, that offeree 
is responsible for those litigation costs reasonably incurred, after 
the deadline stated in the offer, by the offeror to respond to the 
claims of the offeree.
    (d) Litigation Costs Defined.--In this section, the term 
``litigation costs'' include court costs, filing fees, expert witness 
fees, attorney fees, and any other costs directly related to carrying 
out the litigation.
    (e) Significantly Less Favorable Defined.--For purposes of this 
section, a judgment is significantly less favorable than the terms of 
settlement if--
            (1) in the case of an offeree seeking damages, the 
        offeree's award at trial is less than 80 percent of the value 
        of the terms of settlement; and
            (2) in the case of an offeree against whom damages are 
        sought, the offeror's award at trial is more than 120 percent 
        of the value of the terms of settlement.

SEC. 14. STATUTE OF LIMITATIONS; STATUTE OF REPOSE.

    (a) Statute of Limitations.--When an individual is injured or dies 
as the result of health care, the statute of limitations shall be as 
follows:
            (1) Individuals of age 12 and over.--If the individual has 
        attained the age of 12 years, the claim must be brought 
        either--
                    (A) within 2 years after the negligence occurred; 
                or
                    (B) within 2 years after the health care on which 
                the claim is based is completed.
            (2) Individuals under age 12.--If the individual has not 
        attained the age of 12 years, the claim must be brought before 
        the individual attains the age of 14 years.
    (b) Statute of Repose.--When an individual is injured or dies as 
the result of health care, the statute of repose shall be as follows: 
The claim must be brought within 10 years after the act or omission on 
which the claim is based is completed.
    (c) Tolling.--
            (1) Statute of limitations.--The statute of limitations 
        required by subsection (a) may be tolled if applicable law so 
        provides, except that it may not be tolled on the basis of 
        minority.
            (2) Statute of repose.--The statute of repose required by 
        subsection (b) may not be tolled for any reason.

SEC. 15. LIMITATION ON LIABILITY FOR GOOD SAMARITANS PROVIDING 
              EMERGENCY HEALTH CARE.

    (a) Willful or Wanton Negligence Required.--A health care 
practitioner or health care institution that provides emergency health 
care on a Good Samaritan basis is not liable for damages caused by that 
care except for willful or wanton negligence or more culpable 
misconduct.
    (b) Good Samaritan Basis.--For purposes of this section, care is 
provided on a Good Samaritan basis if it is not provided for or in 
expectation of remuneration. Being entitled to remuneration is relevant 
to, but is not determinative of, whether it is provided for or in 
expectation of remuneration.

SEC. 16. DEFINITIONS.

    In this Act:
            (1) Health care institution.--The term ``health care 
        institution'' includes institutions such as--
                    (A) an ambulatory surgical center;
                    (B) an assisted living facility;
                    (C) an emergency medical services provider;
                    (D) a home health agency;
                    (E) a hospice;
                    (F) a hospital;
                    (G) a hospital system;
                    (H) an intermediate care facility for the mentally 
                retarded;
                    (I) a nursing home; and
                    (J) an end stage renal disease facility.
            (2) Health care practitioner.--The term ``health care 
        practitioner'' includes a physician and a physician entity.
            (3) Physician entity.--The term ``physician entity'' 
        includes--
                    (A) a partnership or limited liability partnership 
                created by a group of physicians;
                    (B) a company created by physicians; and
                    (C) a nonprofit health corporation whose board is 
                composed of physicians.
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