[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1734 Introduced in Senate (IS)]
111th CONGRESS
1st Session
S. 1734
To reduce the cost of health care and ensure patient access to doctors
by ending excessive malpractice verdicts through common-sense lawsuit
reform.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 30, 2009
Mr. Kyl (for himself and Mr. Cornyn) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To reduce the cost of health care and ensure patient access to doctors
by ending excessive malpractice verdicts through common-sense lawsuit
reform.
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 ``Medical Liability Reform Act of
2009''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) Medical liability laws create a significant portion of
the overall costs of health care, and contribute to Americans'
lack of access to health care.
(2) A 2006 study by PriceWaterhouse Coopers found that
medical liability laws and the practice of defensive medicine
contribute to 10 percent of all health care costs.
(3) The non-partisan Congressional Budget Office estimated
that the Federal Government could directly save about
$5,600,000,000 by enacting certain medical liability reforms,
and that total health care spending could be reduced even
further if these reforms reduced the practice of defensive
medicine.
(4) According to economists Daniel P. Kessler and Mark B.
McClellan, defensive medicine alone costs Americans more than
$100,000,000,000 every year.
(5) Medicaid and Medicare costs must be lowered to keep
these crucial programs solvent.
(6) In part because of the costs of medical liability, 40
percent of physicians refuse to see new Medicaid patients.
(7) Reform of the medical liability laws has been proven to
increase access to doctors and specialists while lowering
health care costs.
(8) In 2003, Texas adopted medical liability reforms that
placed a cap on non-economic damages in medical liability cases
and combated junk science by raising the standards of
qualification for expert witnesses.
(9) After Texas passed this reform, premiums for medical
malpractice liability insurance fell by 27 percent on average,
and in some cases, by more than 50 percent.
(10) Because the Texas reforms led to more affordable
health insurance premiums, more than 400,000 additional Texans
are covered by health insurance than if reform had not passed.
(11) Because of the Texas reforms, Texas saw an overall
growth rate of 31 percent in the number of new physicians.
(12) The growth rate in the number of physicians in Texas
was particularly pronounced in long-underserved geographic
areas such as the rural and border regions, and in key
specialties such as obstetrics, neurosurgery, and orthopedic
surgery.
(13) Arizona adopted medical liability reforms that
deterred frivolous litigation by requiring expert opinion
testimony at the threshold of medical liability suits and by
raising the standards of qualification for expert witnesses.
(14) The health care and insurance industries are
industries affecting interstate commerce and the health care
liability litigation systems existing throughout the United
States are activities that affect interstate commerce by
contributing to the high costs of health care and premiums for
health care liability insurance purchased by health care system
providers.
(15) The health care liability litigation systems existing
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.
SEC. 3. 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) 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.
(4) 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.
(5) Health care goods or services.--The term ``health care
goods or services'' means any goods or services provided by a
health care institution, 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 human
disease or impairment, or the assessment of the health of human
beings.
(6) Health care institution.--The term ``health care
institution'' means any entity licensed under Federal or State
law to provide health care services (including but not limited
to ambulatory surgical centers, assisted living facilities,
emergency medical services providers, hospices, hospitals and
hospital systems, nursing homes, or other entities licensed to
provide such services).
(7) Health care lawsuit.--The term ``health care lawsuit''
means any health care liability claim concerning the provision
of health care goods or services affecting interstate commerce,
or any health care liability action concerning the provision of
(or the failure to provide) health care goods or services
affecting interstate commerce, brought in a State or Federal
court or pursuant to an alternative dispute resolution system,
against a health care provider or a health care institution
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.
(8) 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 health care provider or a health care
institution 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.
(9) Health care liability claim.--The term ``health care
liability claim'' means a demand by any person, whether or not
pursuant to ADR, against a health care provider or health care
institution, 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) health 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.
(10) Health care provider.--
(A) In general.--The term ``health care provider''
means any person (including but not limited to a
physician (as defined by section 1861(r) of the Social
Security Act (42 U.S.C. 1395x(r)), registered nurse,
dentist, podiatrist, pharmacist, chiropractor, or
optometrist) required by State or Federal law 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.
(B) Treatment of certain professional
associations.--For purposes of this Act, a professional
association that is organized under State law by an
individual physician or group of physicians, a
partnership or limited liability partnership formed by
a group of physicians, a nonprofit health corporation
certified under State law, or a company formed by a
group of physicians under State law shall be treated as
a health care provider under subparagraph (A).
(11) 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.
(12) 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. 4. 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.--
(1) Health care providers.--In any health care lawsuit
where final judgment is rendered against a health care
provider, the amount of noneconomic damages recovered from the
provider, if otherwise available under applicable Federal or
State law, may be as much as $250,000, regardless of the number
of parties other than a health care institution against whom
the action is brought or the number of separate claims or
actions brought with respect to the same occurrence.
(2) Health care institutions.--
(A) Single institution.--In any health care lawsuit
where final judgment is rendered against a single
health care institution, the amount of noneconomic
damages recovered from the institution, 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 occurrence.
(B) Multiple institutions.--In any health care
lawsuit where final judgment is rendered against more
than one health care institution, the amount of
noneconomic damages recovered from each institution, 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 occurrence, except that the total
amount recovered from all such institutions in such
lawsuit shall not exceed $500,000.
(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 the
limitations provided for in subsection (b) 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 the
limitations described in subsection (b), 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. 5. ENSURING RELIABLE EXPERT TESTIMONY.
(a) Expert Witness Qualifications.--
(1) In general.--In any health care lawsuit, an individual
shall not give expert testimony on the appropriate standard of
practice or care involved unless the individual is licensed as
a health professional in 1 or more States and the individual
meets the following criteria:
(A) If the party against whom or on whose behalf
the testimony is to be offered is or claims to be a
specialist, the expert witness shall specialize at the
time of the occurrence that is the basis for the
lawsuit in the same specialty or claimed specialty as
the party against whom or on whose behalf the testimony
is to be offered. If the party against whom or on whose
behalf the testimony is to be offered is or claims to
be a specialist who is board certified, the expert
witness shall be a specialist who is board certified in
that specialty or claimed specialty.
(B) During the 1-year period immediately preceding
the occurrence of the action that gave rise to the
lawsuit, the expert witness shall have devoted a
majority of the individual's professional time to one
or more of the following:
(i) The active clinical practice of the
same health profession as the defendant and, if
the defendant is or claims to be a specialist,
in the same specialty or claimed specialty.
(ii) The instruction of students in an
accredited health professional school or
accredited residency or clinical research
program in the same health profession as the
defendant and, if the defendant is or claims to
be a specialist, in an accredited health
professional school or accredited residency or
clinical research program in the same specialty
or claimed specialty.
(C) If the defendant is a general practitioner, the
expert witness shall have devoted a majority of the
witness's professional time in the 1-year period
preceding the occurrence of the action giving rise to
the lawsuit to one or more of the following:
(i) Active clinical practice as a general
practitioner.
(ii) Instruction of students in an
accredited health professional school or
accredited residency or clinical research
program in the same health profession as the
defendant.
(2) Health care institutions.--If the defendant in a health
care lawsuit is a health care institution that employs a health
professional against whom or on whose behalf the testimony is
offered, the provisions of paragraph (1) apply as if the health
professional were the party or defendant against whom or on
whose behalf the testimony is offered.
(3) Power of court.--Nothing in this subsection shall limit
the power of the trial court in a health care lawsuit to
disqualify an expert witness on grounds other than the
qualifications set forth under this subsection.
(4) Limitation.--An expert witness in a health care lawsuit
shall not be permitted to testify if the fee of the witness is
in any way contingent on the outcome of the lawsuit.
(b) Preliminary Expert Opinion Testimony Against Health Care
Professionals.--
(1) Certification.--In any health care lawsuit, the
claimant (or its attorney) shall certify in a written statement
that is filed and served with the claim whether or not expert
opinion testimony is necessary to prove the health care
professional's standard of care or liability for the claim.
(2) Preliminary expert opinion.--
(A) In general.--If the claimant in any health care
lawsuit certifies that expert opinion testimony is
necessary as required under paragraph (1), the claimant
shall serve a preliminary expert opinion affidavit. The
claimant may provide affidavits from as many experts as
the claimant determines to be necessary.
(B) Requirements.--A preliminary expert opinion
affidavit under subparagraph (A) shall contain at least
the following information:
(i) The expert's qualifications to express
an opinion on the health care professionals
standard of care or liability for the claim.
(ii) The factual basis for each claim
against a health care professional.
(iii) The health care professional's acts,
errors or omissions that the expert considers
to be a violation of the applicable standard of
care resulting in liability.
(iv) The manner in which the health care
professional's acts, errors, or omissions
caused or contributed to the damages or other
relief sought by the claimant.
(3) Disputes.--If the claimant in any health care lawsuit
or its attorney certifies that expert testimony is not required
for the claim and the defendant disputes that certification in
good faith, the defendant may apply by motion to the court for
an order requiring the claimant to obtain and serve a
preliminary expert opinion affidavit under this subsection, and
such motion may be granted by the court.
(4) Dismissals.--The court in a health care lawsuit, on its
own motion or the motion of the defendant, shall dismiss the
claim against the defendant without prejudice if the claimant
fails to file and serve a preliminary expert opinion affidavit
after the claimant (or its attorney) has certified that an
affidavit is necessary or the court has ordered the claimant to
file and serve an affidavit.
SEC. 6. 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, or any
limitation on liability that applies to, a defendant in a health care
lawsuit or action under any other provision of Federal law.
SEC. 7. 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 provides for a greater amount of damages than
provided in this Act.
(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 4(a).
(c) Protection of State's Rights and Other Laws.--
(1) In general.--Any issue that is not governed by a
provision of law established by or under this Act (including
the State standards of negligence) shall be governed by
otherwise applicable Federal or State law.
(2) Rule of construction.--Nothing in this Act shall be
construed to--
(A) preempt or supersede any Federal or State law
that imposes greater procedural or substantive
protections for a health care provider or health care
institution from liability, loss, or damages than those
provided by this Act;
(B) preempt or supercede any State law that permits
and provides for the enforcement of any arbitration
agreement related to a health care liability claim
whether enacted prior to or after the date of enactment
of 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. 8. 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.
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