1.This Act may be cited as
the Medical Liability Reform Act of
2009
.
2.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.
3.In this Act:
(1)Alternative
dispute resolution system; ADRThe term alternative dispute
resolution system or ADR means a system that provides for
the resolution of health care lawsuits in a manner other than through a civil
action brought in a State or Federal court.
(2)The
term claimant means any person who brings a health care lawsuit,
including a person who asserts or claims a right to legal or equitable
contribution, indemnity or subrogation, arising out of a health care liability
claim or action, and any person on whose behalf such a claim is asserted or
such an action is brought, whether deceased, incompetent, or a minor.
(3)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)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 servicesThe 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)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)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 actionThe 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 claimThe 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)
(A)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 associationsFor 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)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)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.
4.Compensating
patient injury
(a)Unlimited
amount of damages for actual economic losses in health care
lawsuitsIn 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)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)
(A)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)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 damagesIn 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)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.
5.Ensuring
reliable expert testimony
(a)Expert witness
qualifications
(1)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)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)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)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)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)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)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)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)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.
6.
(a)
(1)To the extent that title XXI of the
Public Health Service Act establishes
a Federal rule of law applicable to a civil action brought for a
vaccine-related injury or death—
(A)this Act shall
not affect the application of the rule of law to such an action; and
(B)any rule of law
prescribed by this Act in conflict with a rule of law of such title XXI shall
not apply to such action.
(2)If
there is an aspect of a civil action brought for a vaccine-related injury or
death to which a Federal rule of law under title XXI of the
Public Health Service Act does not
apply, then this Act or otherwise applicable law (as determined under this Act)
will apply to such aspect of such action.
(b)
(1)To the extent that part C of title II of the
Public Health Service Act establishes
a Federal rule of law applicable to a civil action brought for a smallpox
vaccine-related injury or death—
(A)this Act shall
not affect the application of the rule of law to such an action; and
(B)any rule of law
prescribed by this Act in conflict with a rule of law of such part C shall not
apply to such action.
(2)If
there is an aspect of a civil action brought for a smallpox vaccine-related
injury or death to which a Federal rule of law under part C of title II of the
Public Health Service Act does not
apply, then this Act or otherwise applicable law (as determined under this Act)
will apply to such aspect of such action.
(c)Except as provided in this section, nothing in this Act shall
be deemed to affect any defense available, or any limitation on liability that
applies to, a defendant in a health care lawsuit or action under any other
provision of Federal law.
7.State
flexibility and protection of states’ rights
(a)The provisions governing health care lawsuits set forth
in this Act shall preempt, subject to subsections (b) and (c), State law to the
extent that State law prevents the application of any provisions of law
established by or under this Act. The provisions governing health care lawsuits
set forth in this Act supersede chapter 171 of title 28, United States Code, to
the extent that such chapter provides for a greater amount of damages than
provided in this Act.
(b)Preemption of
certain State lawsNo 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)Any issue that is not governed by a provision of law
established by or under this Act (including the State standards of negligence)
shall be governed by otherwise applicable Federal or State law.
(2)Nothing in this Act shall be construed to—
(A)preempt or
supersede any Federal or State law that imposes greater procedural or
substantive protections for a health care provider 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.
8.Applicability;
effective dateThis 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.