[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.
                                 <all>