1.Short title; table of
contents
(a)This Act may be cited
as the Meaningful End to Defensive Medicine & Aimless
Lawsuits (MedMal) Act of 2010
.
(b)The table of
contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings; purpose.
Sec. 3. Health care lawsuit statute of limitations.
Sec. 4. Early offer.
Sec. 5. Collateral source benefits.
Sec. 6. Benevolent gesture or admission of fault by a health
care provider.
Sec. 7. Fair share rule.
Sec. 8. Punitive damages.
Sec. 9. Authorization of payment of future damages to claimants
in health care lawsuits.
Sec. 10. Liability of health care providers for FDA-approved
products.
Sec. 11. Expert Witness Standards.
Sec. 12. Protection of States’ rights and effect on other
laws.
Sec. 13. Definitions.
Sec. 14. Applicability.
2.
(a)
(1)Effect on health
care access and costsCongress finds that the United States civil
justice system adversely affects patient access to health care services, the
quality of patient care, and the cost-efficiency of health care because the
health care liability system is costly, ineffective, and a deterrent to the
sharing of information among health care professionals, which impedes efforts
to improve patient safety and quality of care.
(2)Effect on
interstate commerceCongress finds that—
(A)the health care
and insurance industries affect interstate commerce; and
(B)the health care
liability litigation systems throughout the United States affect interstate
commerce by contributing to the high cost of health care and premiums for
health care liability insurance purchased by health care system
providers.
(3)Effect on
federal spendingCongress finds that the health care liability
litigation systems throughout the United States have a significant effect on
the amount, distribution, and use of Federal funds because of—
(A)the large number
of individuals who receive health care benefits under programs operated or
financed by the Federal Government;
(B)the large number
of individuals who benefit because of the exclusion from Federal taxes of the
amounts spent to provide them with health insurance benefits; and
(C)the large number
of health care providers who provide items or services for which the Federal
Government makes payments.
(b)It
is the purpose of this Act to implement reasonable, comprehensive, and
effective health care liability reforms designed to—
(1)improve the
availability of health care services in cases in which health care lawsuits
have been shown to be a factor in the decreased availability of
services;
(2)reduce the
incidence of defensive medicine
and lower the cost of health
care liability insurance, all of which contribute to the escalation of health
care costs;
(3)ensure that
persons with meritorious health care injury claims receive fair and adequate
compensation, including reasonable noneconomic damages;
(4)improve the
fairness and cost-effectiveness of our current health care liability system to
resolve disputes over health care liability by reducing uncertainty in the
amount of compensation provided to injured individuals; and
(5)increase the
sharing of information in the health care system to reduce unintended injury
and improve patient care.
3.Health care
lawsuit statute of limitations
(a)Statute of
limitations for health care lawsuitExcept as provided under subsection (b), a
health care lawsuit is barred unless it is commenced before the earlier
of—
(1)the expiration of
the 3-year period beginning on the date of manifestation of injury; or
(2)the expiration of
the 1-year period beginning on the date on which the claimant discovers, or
through the use of reasonable diligence should have discovered, the
injury.
(b)Tolling of
statute of limitationsThe
statute of limitations under subsection (a) may be tolled for any of the
following:
(1)Proof of
fraud.
(2)Intentional concealment of information
necessary for a claimant to file a health care lawsuit.
(3)The presence of a
foreign body, which has no therapeutic or diagnostic purpose or effect, in the
person of the injured person that is related to the health care liability
claim.
(c)This section shall not apply to any health
care lawsuit arising from an injury occurring before the date of the enactment
of this Act.
4.
(a)If a claimant rejects
a qualified early offer from a defendant in a health care lawsuit, the amount
of noneconomic damages that may be awarded against that defendant in the
lawsuit may not exceed $350,000.
(b)In this section, the
term qualified early offer means, with respect to a health care
lawsuit, a reasonable offer that—
(1)is made by a
defendant to a claimant in order to settle the health care liability claim
which is the subject of the lawsuit;
(2)provides for the
periodic payment to the claimant of net economic damages as such damages
accrue, for which the defendant is responsible, to the claimant, to the extent
that such damages are not already covered by a collateral source;
(3)provides for
payment of the reasonable attorney’s fees of the claimant;
(4)is made to the
claimant not later than 180 days after the date such lawsuit is commenced;
and
(5)allows the
claimant to accept or reject such offer within 30 days after the date on which
such offer is made.
(c)If a claimant rejects a
qualified early offer from a defendant in a health care lawsuit—
(1)an award for
noneconomic damages in excess of $350,000 shall be reduced to such amount
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
(2)in a case in which separate awards are
rendered for past and future noneconomic damages, the future noneconomic
damages shall be reduced first.
(d)If a qualified early
offer is rejected and a judgment is subsequently entered against the offeree in
that health care lawsuit, the offeree shall be liable for the attorney’s fees
of the offeror.
(e)If a claimant
rejects a qualified early offer, the jury shall not be informed about the
maximum award for noneconomic damages.
(f)Early offer
evidence inadmissibleIn any health care lawsuit, a qualified
early offer shall be inadmissible as evidence of admission of liability or as
evidence of an admission against interest.
5.Collateral source
benefits
(a)Evidence of
collateral source benefits admissibleIn any health care lawsuit involving injury
or wrongful death, a party may introduce evidence of collateral source
benefits.
(b)Collateral
source benefits introducedIf a party elects to introduce
evidence of collateral source benefits, an opposing party may introduce
evidence of an amount paid or contributed or reasonably likely to be paid or
contributed in the future by or on behalf of the opposing party in order to
secure such collateral source benefits.
(c)Providers of
collateral source benefits barred from recoveryIn any health
care lawsuit involving injury or wrongful death, a provider of collateral
source benefits may not—
(1)recover an amount
against the claimant;
(2)receive a lien or
credit against the claimant’s recovery; or
(3)be equitably or
legally subrogated to the rights of the claimant.
(d)In this section, the
term recovery means, with respect to a health care liability
claim, the net sum recovered by a claimant 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, but does not include costs
of health care incurred by the claimant or the charges for legal services of
the claimant’s attorney.
(e)Subsection
(c) shall not apply in the case of a collateral source benefit for which the
Secretary of Health and Human Services or a State or local agency administering
a State Medicaid plan may recover (or expect to recover) any payment made for
such benefit pursuant to section 1862(b) (42 U.S.C. 1395y(b)) or section
1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social Security Act.
6.Benevolent
gesture or admission of fault by a health care provider
(a)In any health
care lawsuit, a benevolent gesture or admission of fault that is made by a
health care provider, or an employee of a health care provider, to the
claimant, a relative of the claimant, or a representative of the claimant shall
be inadmissible as evidence of admission of liability or as evidence of an
admission against interest.
(b)The rule established
under subsection (a) applies to a benevolent gesture or admission of fault by a
health care provider to a claimant or the claimant’s relative or representative
(including any such gesture or admission made before the commencement of the
health care lawsuit) regarding the claimant’s discomfort, pain, suffering,
injury, or death, regardless of the cause, including the unanticipated outcome
of any treatment, consultation, care, or service provided by such provider (or
by the employees, agents, or contractors of such provider) or the omission of
such treatment, consultation, care, or service.
(c)This
section shall apply in all judicial proceedings commenced after the date of the
enactment of this Act and, insofar as is just and practicable, in all judicial
proceedings pending on such date of enactment.
(d)In
this section:
(1)The term
benevolent gesture means any statement, affirmation, gesture, or
conduct, including subsequent remedial or preventative measures, expressing
apology, sympathy, commiseration, condolence, compassion, or a general sense of
benevolence that relates solely to discomfort, pain, suffering, injury, or
death as the result of the unanticipated outcome of medical care.
(2)The term relative means, with
respect to a claimant, the claimant’s spouse, parent, stepparent, grandparent,
child, stepchild, grandchild, brother, sister, half-brother, half-sister,
spouse’s parents, or any other person who has a family-type relationship with
the claimant.
(3)The term representative means
a legal guardian, attorney, or an agent designated to make medical decisions
under a power of attorney over health care matters, a health care
representative who is authorized to make health care decisions for a principal
under applicable law, a surrogate designated in an advance directive for health
care, or any person recognized in law or custom as an agent.
(4)The term
unanticipated outcome means an outcome of a medical treatment or
procedure, care, or service that differs from the expected or anticipated
result.
7.
(a)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.
(b)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.
(c)Determination of
responsibilityFor purposes of this section, the trier of fact
shall determine the proportion of responsibility of each party for the
claimant’s harm.
8.
(a)Punitive damages may be
awarded against a defendant in a health care lawsuit for a health care
liability claim only if—
(1)otherwise permitted by applicable State or
Federal law;
(2)it is proven by
clear and convincing evidence that such defendant acted with malicious intent
to injure the claimant, or that such defendant deliberately failed to avoid
unnecessary injury that such defendant knew the claimant was substantially
certain to suffer; and
(3)compensatory
damages are awarded for such claim.
(b)Demand for
punitive damages
(1)A claimant may not file a demand for
punitive damages in the original complaint for a health care lawsuit.
(2)A claimant may file
an amended complaint for punitive damages if the court finds, after reviewing
supporting and opposing affidavits or after a hearing, that the claimant has
established by a substantial probability that the claimant will prevail on the
claim for punitive damages.
(3)
(A)Request for
punitive damages hearingAt
the request of any party in a health care lawsuit, the trier of fact shall
consider in a separate hearing whether punitive damages are to be awarded and
the amount of such award, using the factors listed under subsection (c).
(B)If a separate punitive damages hearing is requested,
any evidence introduced at such hearing that is 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.
(c)Amount of
Punitive Damages
(1)In determining the amount of punitive damages against
a party in a health care lawsuit, the trier of fact shall consider, where
applicable, 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 conduct by such party.
(C)The profitability
of the conduct to such party.
(D)The number of
products sold or medical procedures rendered for compensation by such party
that caused 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.
(F)The amount of any
civil fines assessed against such party as a result of the conduct complained
of by the claimant.
(2)The maximum amount of punitive damages that may be awarded
in a health care lawsuit is $350,000 or two times the amount of economic
damages awarded, whichever is greater.
(3)The jury shall not be informed about the maximum
award for punitive damages under paragraph (2).
(d)Malicious Intent
To InjureIn this section, the term malicious intent to
injure means intentionally causing or attempting to cause physical
injury other than providing health care goods or services.
9.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.
(b)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.
(c)This
section applies to all actions that have not been first set for trial or
retrial before the effective date of this Act.
10.Liability of
health care providers for FDA-approved products
(a)Except as provided in
subsection (b), a health care provider who prescribes, or who dispenses
pursuant to a prescription, a medical product approved, licensed, or cleared by
the Food and Drug Administration may not be named as a party to a product
liability lawsuit involving such product and shall not be liable to a claimant
in a class action involving such product that is brought against the
manufacturer, distributor, or seller of such product.
(b)Nothing in subsection (a) prevents a court from
consolidating cases involving health care providers and cases involving product
liability claims against the manufacturer, distributor, or seller of a medical
product.
11.
(a)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—
(1)except as required
under subsection (b), is a health care professional who—
(A)is appropriately
credentialed or licensed in 1 or more States to deliver health care services;
and
(B)typically treats
the diagnosis or condition or provides the type of treatment under review;
and
(2)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.
(b)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.
(c)Specialties and
subspecialtiesWith respect
to a lawsuit described in subsection (a), a court shall not permit an expert in
one medical specialty or subspecialty to testify against a defendant in another
medical specialty or subspecialty unless, in addition to a showing of
substantial familiarity in accordance with subsection (a)(2), there is a
showing that the standards of care and practice in the two specialty or
subspecialty fields are similar.
(d)The limitations in this subsection shall
not apply to expert witnesses testifying as to the degree or permanency of
medical or physical impairment.
12.Protection of
States’ rights and effect on other laws
(a)The provisions governing health care lawsuits set forth
in this Act preempt, subject to subsections (c) and (d), State law to the
extent that State law prevents the application of any provisions of law
established by this Act.
(b)Preemption of
Federal lawThe provisions governing health care lawsuits set
forth in this Act supersede chapters 161 and 171 of title 28, United States
Code, to the extent that such chapters—
(1)provide for a
greater amount of damages, 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)prohibit the
introduction of evidence regarding collateral source benefits, or mandate or
permit subrogation or a lien on collateral source benefits.
(c)Protection of
States’ Rights and Other Laws
(1)This Act shall not preempt or supersede any State or
Federal law that imposes greater procedural or substantive protections
(including any statute of limitations that expires sooner than statutes of
limitations imposed in this Act) for health care providers and health care
organizations from liability, loss, or damages than those provided by this Act,
except as provided for under subsection (d)(1).
(2)Any issue that is not
governed by any provision of law established by this Act shall be governed by
otherwise applicable State or Federal law.
(d)State
Flexibility and Federal lawThe provisions of this Act shall not be
construed to preempt—
(1)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 by this Act;
(2)any defense
available to a party in a health care lawsuit under any other provision of
State or Federal law; or
(3)any State law that
provides for an alternative dispute resolution system.
(e)
(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 does not
affect the application of the rule of law to such an action; and
(B)any rule of law
prescribed by this Act that is 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 shall apply to such aspect of such action.
13.In this Act:
(1)Alternative
dispute resolution systemThe term alternative dispute
resolution system 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, and any person on whose behalf such a claim is asserted, whether such
person is deceased, incompetent, or a minor.
(3)Collateral
source benefitsThe term collateral source benefits
means any amount paid or reasonably likely to be paid in the future to or on
behalf of a claimant, or any service, product, or other benefit provided or
reasonably likely to be provided in the future to or on behalf of a claimant,
as a result of 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; or
(D)any other publicly
or privately funded program.
(4)The term compensatory damages means economic
damages and noneconomic damages.
(5)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.
(6)Health care
goods or servicesThe term health care goods or
services means any goods or services provided by a health care
organization, a health care provider, or an individual working under the
supervision of a health care provider, that relate to the diagnosis,
prevention, or treatment of any human disease or impairment, or the assessment
or care of the health of human beings.
(7)The term health care lawsuit—
(A)means any health care liability claim
affecting interstate commerce that is brought in a State or Federal court or
pursuant to an alternative dispute resolution system; and
(B)does not include a
claim or action that is based on criminal liability, that seeks civil fines or
penalties paid to Federal, State, or local government, or that is grounded in
antitrust.
(8)Health care
liability claimThe term
health care liability claim means a demand by any person, whether
or not pursuant to an alternative dispute resolution system, against a health
care provider, health care organization, or the manufacturer, distributor,
supplier, marketer, promoter, or seller of a medical product, including
third-party claims, cross-claims, counterclaims, or contribution claims, that
is based upon the provision of, use of, or payment for (or the failure to
provide, use, or pay for) health care goods or services or any medical product,
for injury or wrongful death, regardless of the number of plaintiffs,
defendants, or other parties, or the number of causes of action.
(9)The term health care
organization—
(A)means any person
or entity that is obligated to provide or pay for health care goods or services
under any health insurance plan; and
(B)includes any
person or entity acting under a contract or arrangement with a health care
organization to provide or administer any healthcare goods or services.
(10)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, or exempted
from such requirement by other law or regulation.
(11)
(A)The term
medical product means a drug, device, or biological product
intended for humans.
(B)For purposes of subparagraph (A):
(i)The term drug has the meaning
given such term in section 201(g)(1) of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 321(g)(1)).
(ii)The term device has the
meaning given such term in section 201(h) of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 321(h)).
(iii)The term
biological product has the meaning given such term in section
351(i) of the Public Health Service
Act (42 U.S.C. 262(i)).
(12)The term minor means an
individual who is less than 18 years of age.
(13)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.
(14)The term punitive damages—
(A)means damages
awarded, for the purpose of punishment or deterrence, and not solely for
compensatory purposes, against a health care provider, health care
organization, or a manufacturer, distributor, or supplier of a medical product;
and
(B)does not include
economic damages or noneconomic damages.
(15)The
term State means each of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands,
Guam, American Samoa, the Commonwealth of 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.
14.Except as otherwise provided, 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.