1.Short title; table of
contents
(a)This Act may be cited
as the Medical Justice Act of
2011
.
(b)The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Cap on non-economic damages against health care
practitioners.
Sec. 3. Cap on non-economic damages against health care
institutions.
Sec. 4. Cap, in wrongful death cases, on total damages against
any single health care practitioner.
Sec. 5. Limitation of insurer liability when insurer rejects
certain settlement offers.
Sec. 6. Mandatory jury instruction on cap on
damages.
Sec. 7. Determination of negligence; mandatory jury
instruction.
Sec. 8. Expert reports required to be served in civil
actions.
Sec. 9. Expert opinions relating to physicians may be provided
only by actively practicing physicians.
Sec. 10. Payment of future damages on periodic or accrual
basis.
Sec. 11. Unanimous jury required for punitive or exemplary
damages.
Sec. 12. Proportionate liability.
Sec. 13. Defense-initiated settlement process.
Sec. 14. Statute of limitations; statute of repose.
Sec. 15. Limitation on liability for Good Samaritans providing
emergency health care.
Sec. 16. Definitions.
2.Cap on
non-economic damages against health care practitionersWhen an individual is injured or dies as the
result of health care, a person entitled to non-economic damages may not
recover, from the class of liable health care practitioners (regardless of the
theory of liability), more than $250,000 such damages.
3.Cap on
non-economic damages against health care institutionsWhen an individual is injured or dies as the
result of health care, a person entitled to non-economic damages may not
recover—
(1)from any single
liable health care institution (regardless of the theory of liability), more
than $250,000 such damages; and
(2)from the class of
liable health care institutions (regardless of the theory of liability), more
than $500,000 such damages.
4.Cap, in wrongful
death cases, on total damages against any single health care
practitioner
(a)When an individual dies as the result of health care, a
person entitled to damages may not recover, from any single liable health care
practitioner (regardless of the theory of liability), more than $1,400,000 in
total damages.
(b)In this section, the term total damages
includes compensatory damages, punitive damages, statutory damages, and any
other type of damages.
(c)For each calendar year after the calendar year of the
enactment of this Act, the dollar amount referred to in subsection (a) shall be
adjusted to reflect changes in the Consumer Price Index of the Bureau of Labor
Statistics of the Department of Labor. The adjustment shall be based on the
relationship between—
(1)the Consumer Price
Index data most recently published as of January 1 of the calendar year of the
enactment of this Act; and
(2)the Consumer Price
Index data most recently published as of January 1 of the calendar year
concerned.
(d)Applicability of
adjustmentThe dollar amount that applies to a recovery is the
dollar amount for the calendar year during which the amount of the recovery is
made final.
5.Limitation of
insurer liability when insurer rejects certain settlement offersIn a civil action, to the extent the civil
action seeks damages for the injury or death of an individual as the result of
health care, when the insurer of a health care practitioner or health care
institution rejects a reasonable settlement offer within policy limits, the
insurer is not, by reason of that rejection, liable for damages in an amount
that exceeds the liability of the insured.
6.Mandatory jury
instruction on cap on damagesIn a civil action tried to a jury, to the
extent the civil action seeks damages for the injury or death of an individual
as the result of health care, the court shall instruct the jury that the jury
is not to consider whether, or to what extent, a limitation on damages
applies.
7.Determination of
negligence; mandatory jury instruction
(a)When an individual is injured or dies as the result of
health care, liability for negligence may not be based solely on a bad
result.
(b)Mandatory jury
instructionIn a civil action tried to a jury, to the extent the
civil action seeks damages for the injury or death of an individual as the
result of health care and alleges liability for negligence, the court shall
instruct the jury as provided in subsection (a).
8.Expert reports
required to be served in civil actions
(a)To the extent a pleading filed in a civil action seeks
damages against a health care practitioner for the injury or death of an
individual as the result of health care, the party filing the pleading shall,
not later than 120 days after the date on which the pleading was filed, serve
on each party against whom such damages are sought a qualified expert
report.
(b)As used in subsection (a), a qualified expert report is a
written report of a qualified health care expert that—
(1)includes a
curriculum vitae for that expert; and
(2)sets forth a
summary of the expert opinion of that expert as to—
(A)the standard of
care applicable to that practitioner;
(B)how that
practitioner failed to meet that standard of care; and
(C)the causal
relationship between that failure and the injury or death of the
individual.
(c)A party not served as required by subsection (a) may move
the court to enforce that subsection. On such a motion, the court—
(1)shall dismiss,
with prejudice, the pleading as it relates to that party; and
(2)shall award to
that party the attorney fees reasonably incurred by that party to respond to
that pleading.
(d)
(1)Except as otherwise provided in this section, a qualified
expert report served under subsection (a) may not, in that civil action—
(A)be offered by any
party as evidence;
(B)be used by any
party in discovery or any other pretrial proceeding; or
(C)be referred to by
any party at trial.
(2)
(A)If paragraph (1) is violated by a party other than the
party who served the report, the court shall, on motion of any party or on its
own motion, take such measures as the court considers appropriate, which may
include the imposition of sanctions.
(B)If paragraph (1) is violated by the party who served the
report, paragraph (1) shall no longer apply to any party.
9.Expert opinions
relating to physicians may be provided only by actively practicing
physicians
(a)A physician-related opinion may be provided only by an
actively practicing physician who is determined by the court to be qualified on
the basis of training and experience to render that opinion.
(b)In determining whether an actively practicing physician
is qualified under subsection (a), the court shall, except on good cause shown,
consider whether that physician is board-certified, or has other substantial
training, in an area of medical practice relevant to the health care to which
the opinion relates.
(c)In
this section:
(1)The term
actively practicing physician means an individual who—
(A)is licensed to practice medicine in the
United States or, if the individual is a defendant providing a
physician-related opinion with respect to the health care provided by that
defendant, is a graduate of a medical school accredited by the Liaison
Committee on Medical Education or the American Osteopathic Association;
(B)is practicing
medicine when the opinion is rendered, or was practicing medicine when the
health care was provided; and
(C)has knowledge of
the accepted standards of care for the health care to which the opinion
relates.
(2)The term
physician-related opinion means an expert opinion as to any one or
more of the following:
(A)The standard of
care applicable to a physician.
(B)Whether a
physician failed to meet such a standard of care.
(C)Whether there was
a causal relationship between such a failure by a physician and the injury or
death of an individual.
(3)The term
practicing medicine includes training residents or students at an
accredited school of medicine or osteopathy, and serving as a consulting
physician to other physicians who provide direct patient care.
10.Payment of
future damages on periodic or accrual basis
(a)When future damages are awarded against a health care
practitioner to a person for the injury or death of an individual as a result
of health care, and the present value of those future damages is $100,000 or
more, that health care practitioner may move that the court order payment on a
periodic or accrual basis of those damages. On such a motion, the court—
(1)shall order that
payment be made on an accrual basis of future damages described in subsection
(b)(1); and
(2)may order that
payment be made on a periodic or accrual basis of any other future damages that
the court considers appropriate.
(b)In this section, the term future damages
means—
(1)the future costs
of medical, health care, or custodial services;
(2)noneconomic
damages, such as pain and suffering or loss of consortium;
(3)loss of future
earnings; and
(4)any other damages
incurred after the award is made.
11.Unanimous jury
required for punitive or exemplary damagesWhen an individual is injured or dies as the
result of health care, a jury may not award punitive or exemplary damages
against a health care practitioner or health care institution unless the jury
is unanimous with regard to both the liability of that party for such damages
and the amount of the award of such damages.
12.When an individual
is injured or dies as the result of health care and a person is entitled to
damages for that injury or death, each person responsible is liable only for a
proportionate share of the total damages that directly corresponds to that
person’s proportionate share of the total responsibility.
13.Defense-initiated
settlement process
(a)In a civil action, to
the extent the civil action seeks damages for the injury or death of an
individual as the result of health care, a health care practitioner or health
care institution against which such damages are sought may serve one or more
qualified settlement offers under this section to a person seeking such
damages. If the person seeking such damages does not accept such an offer, that
person may thereafter serve one or more qualified settlement offers under this
section to the party whose offer was not accepted.
(b)Qualified
settlement offerA qualified settlement offer under this section
is an offer, in writing, to settle the matter as between the offeror and the
offeree, which—
(1)specifies that it
is made under this section;
(2)states the terms
of settlement; and
(3)states the
deadline within which the offer must be accepted.
(c)If the offeree of a qualified settlement offer does not
accept that offer, and thereafter receives a judgment at trial that, as between
the offeror and the offeree, is significantly less favorable than the terms of
settlement in that offer, that offeree is responsible for those litigation
costs reasonably incurred, after the deadline stated in the offer, by the
offeror to respond to the claims of the offeree.
(d)In this section, the term litigation costs
include court costs, filing fees, expert witness fees, attorney fees, and any
other costs directly related to carrying out the litigation.
(e)Significantly
less favorable definedFor purposes of this section, a judgment
is significantly less favorable than the terms of settlement if—
(1)in the case of an
offeree seeking damages, the offeree’s award at trial is less than 80 percent
of the value of the terms of settlement; and
(2)in the case of an
offeree against whom damages are sought, the offeror’s award at trial is more
than 120 percent of the value of the terms of settlement.
14.Statute of
limitations; statute of repose
(a)When an individual is injured or dies as the result
of health care, the statute of limitations shall be as follows:
(1)Individuals of
age 12 and overIf the individual has attained the age of 12
years, the claim must be brought either—
(A)within 2 years
after the negligence occurred; or
(B)within 2 years
after the health care on which the claim is based is completed.
(2)If the individual has not attained the age of 12
years, the claim must be brought before the individual attains the age of 14
years.
(b)When an individual is injured or dies as the result of
health care, the statute of repose shall be as follows: The claim must be
brought within 10 years after the act or omission on which the claim is based
is completed.
(c)
(1)The statute of limitations required by subsection (a)
may be tolled if applicable law so provides, except that it may not be tolled
on the basis of minority.
(2)The statute of repose required by subsection (b) may not
be tolled for any reason.
15.Limitation on
liability for Good Samaritans providing emergency health care
(a)Willful or
wanton negligence requiredA health care practitioner or health
care institution that provides emergency health care on a Good Samaritan basis
is not liable for damages caused by that care except for willful or wanton
negligence or more culpable misconduct.
(b)For purposes of this section, care is provided on a Good
Samaritan basis if it is not provided for or in expectation of remuneration.
Being entitled to remuneration is relevant to, but is not determinative of,
whether it is provided for or in expectation of remuneration.
16.In this Act:
(1)The term health care institution
includes institutions such as—
(A)an ambulatory
surgical center;
(B)an assisted living
facility;
(C)an emergency
medical services provider;
(D)a home health
agency;
(E)a hospice;
(F)a hospital;
(G)a hospital
system;
(H)an intermediate
care facility for the mentally retarded;
(I)a nursing home;
and
(J)an end stage renal
disease facility.
(2)The term health care practitioner
includes a physician and a physician entity.
(3)The term physician entity includes—
(A)a partnership or
limited liability partnership created by a group of physicians;
(B)a company created
by physicians; and
(C)a nonprofit health
corporation whose board is composed of physicians.