1.Short title; table of
contents
(a)This Act may be cited
as the Help Efficient, Accessible,
Low-cost, Timely Healthcare (HEALTH) Act of 2011
.
(b)The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and purpose.
Sec. 3. Encouraging speedy resolution of claims.
Sec. 4. Compensating patient injury.
Sec. 5. Maximizing patient recovery.
Sec. 6. Additional HEALTH benefits.
Sec. 7. Punitive damages.
Sec. 8. Authorization of payment of future damages to claimants
in HEALTH care lawsuits.
Sec. 9. Definitions.
Sec. 10. Effect on other laws.
Sec. 11. State flexibility and protection of States’
rights.
Sec. 12. Applicability; effective date.
2.
(a)
(1)Effect on health
care access and costsCongress finds that our current civil
justice system is adversely affecting patient access to health care services,
better patient care, and cost-efficient health care, in that the health care
liability system is a costly and ineffective mechanism for resolving claims of
health care liability and compensating injured patients, and is 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 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.
(3)Effect on
federal spendingCongress finds that 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.
(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 liability
actions 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, and provide compensation for, health care liability by
reducing uncertainty in the amount of compensation provided to injured
individuals; and
(5)provide an
increased sharing of information in the health care system which will reduce
unintended injury and improve patient care.
3.Encouraging
speedy resolution of claimsThe time for the commencement of a health
care lawsuit shall be 3 years after the date of manifestation of injury or 1
year after the claimant discovers, or through the use of reasonable diligence
should have discovered, the injury, whichever occurs first. In no event shall
the time for commencement of a health care lawsuit exceed 3 years after the
date of manifestation of injury unless tolled for any of the following—
(1)upon proof of
fraud;
(2)intentional
concealment; or
(3)the presence of a
foreign body, which has no therapeutic or diagnostic purpose or effect, in the
person of the injured person.
Actions by a
minor shall be commenced within 3 years from the date of the alleged
manifestation of injury except that actions by a minor under the full age of 6
years shall be commenced within 3 years of manifestation of injury or prior to
the minor’s 8th birthday, whichever provides a longer period. Such time
limitation shall be tolled for minors for any period during which a parent or
guardian and a health care provider or health care organization have committed
fraud or collusion in the failure to bring an action on behalf of the injured
minor.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 a claimant’s recovery
of the full amount of the available economic damages, notwithstanding the
limitation in
subsection (b).
(b)Additional
Noneconomic DamagesIn any health care lawsuit, the amount of
noneconomic damages, if available, 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 injury.
(c)No Discount of
Award for Noneconomic DamagesFor purposes of applying the
limitation in
subsection (b), future noneconomic damages
shall not be discounted to present value. The jury shall not be informed about
the maximum award for noneconomic damages. An award for noneconomic damages in
excess of $250,000 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. If
separate awards are rendered for past and future noneconomic damages and the
combined awards exceed $250,000, 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. Whenever a judgment of liability is rendered as to any party, 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.Maximizing
patient recovery
(a)Court
Supervision of Share of Damages Actually Paid to ClaimantsIn any
health care lawsuit, the court shall supervise the arrangements for payment of
damages to protect against conflicts of interest that may have the effect of
reducing the amount of damages awarded that are actually paid to claimants. In
particular, in any health care lawsuit in which the attorney for a party claims
a financial stake in the outcome by virtue of a contingent fee, the court shall
have the power to restrict the payment of a claimant’s damage recovery to such
attorney, and to redirect such damages to the claimant based upon the interests
of justice and principles of equity. In no event shall the total of all
contingent fees for representing all claimants in a health care lawsuit exceed
the following limits:
(1)Forty percent of
the first $50,000 recovered by the claimant(s).
(2)Thirty-three and
one-third percent of the next $50,000 recovered by the claimant(s).
(3)Twenty-five
percent of the next $500,000 recovered by the claimant(s).
(4)Fifteen percent of
any amount by which the recovery by the claimant(s) is in excess of
$600,000.
(b)The
limitations in this section shall apply whether the recovery is by judgment,
settlement, mediation, arbitration, or any other form of alternative dispute
resolution. In a health care lawsuit involving a minor or incompetent person, a
court retains the authority to authorize or approve a fee that is less than the
maximum permitted under this section. The requirement for court supervision in
the first two sentences of
subsection (a) applies only in civil
actions.
6.Additional HEALTH
benefitsIn any health care
lawsuit involving injury or wrongful death, any party may introduce evidence of
collateral source benefits. If a party elects to introduce such evidence, any
opposing party may introduce evidence of any amount paid or contributed or
reasonably likely to be paid or contributed in the future by or on behalf of
the opposing party to secure the right to such collateral source benefits. No
provider of collateral source benefits shall recover any amount against the
claimant or receive any lien or credit against the claimant’s recovery or be
equitably or legally subrogated to the right of the claimant in a health care
lawsuit involving injury or wrongful death. This section shall apply to any
health care lawsuit that is settled as well as a health care lawsuit that is
resolved by a fact finder. This section shall not apply 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.
7.
(a)Punitive damages may, if otherwise permitted by
applicable State or Federal law, be awarded against any person in a health care
lawsuit only if it is proven by clear and convincing evidence that such person
acted with malicious intent to injure the claimant, or that such person
deliberately failed to avoid unnecessary injury that such person knew the
claimant was substantially certain to suffer. In any health care lawsuit where
no judgment for compensatory damages is rendered against such person, no
punitive damages may be awarded with respect to the claim in such lawsuit. No
demand for punitive damages shall be included in a health care lawsuit as
initially filed. A court may allow a claimant to file an amended pleading for
punitive damages only upon a motion by the claimant and after a finding by the
court, upon review of supporting and opposing affidavits or after a hearing,
after weighing the evidence, that the claimant has established by a substantial
probability that the claimant will prevail on the claim for punitive damages.
At the request of any party in a health care lawsuit, the trier of fact shall
consider in a separate proceeding—
(1)whether punitive
damages are to be awarded and the amount of such award; and
(2)the amount of
punitive damages following a determination of punitive liability.
If a
separate proceeding is requested, evidence 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.(b)Determining
Amount of Punitive Damages
(1)In determining the amount of punitive damages, if
awarded, in a health care lawsuit, the trier of fact shall consider 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 it by such party;
(C)the profitability
of the conduct to such party;
(D)the number of
products sold or medical procedures rendered for compensation, as the case may
be, by such party, of the kind causing 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; and
(F)the amount of any
civil fines assessed against such party as a result of the conduct complained
of by the claimant.
(2)The amount of punitive damages, if awarded, in a health
care lawsuit may be as much as $250,000 or as much as two times the amount of
economic damages awarded, whichever is greater. The jury shall not be informed
of this limitation.
(c)No Punitive
Damages for Products That Comply With FDA Standards
(1)
(A)No punitive
damages may be awarded against the manufacturer or distributor of a medical
product, or a supplier of any component or raw material of such medical
product, based on a claim that such product caused the claimant’s harm
where—
(i)(I)such medical product was
subject to premarket approval, clearance, or licensure by the Food and Drug
Administration with respect to the safety of the formulation or performance of
the aspect of such medical product which caused the claimant’s harm or the
adequacy of the packaging or labeling of such medical product; and
(II)such medical product was so approved,
cleared, or licensed; or
(ii)such medical
product is generally recognized among qualified experts as safe and effective
pursuant to conditions established by the Food and Drug Administration and
applicable Food and Drug Administration regulations, including without
limitation those related to packaging and labeling, unless the Food and Drug
Administration has determined that such medical product was not manufactured or
distributed in substantial compliance with applicable Food and Drug
Administration statutes and regulations.
(B)Subparagraph
(A) may not be construed as establishing the obligation of the
Food and Drug Administration to demonstrate affirmatively that a manufacturer,
distributor, or supplier referred to in such subparagraph meets any of the
conditions described in such subparagraph.
(2)Liability of
health care providersA 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 shall 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 lawsuit against the manufacturer, distributor, or
seller of such product. Nothing in this paragraph prevents a court from
consolidating cases involving health care providers and cases involving
products liability claims against the manufacturer, distributor, or product
seller of such medical product.
(3)In
a health care lawsuit for harm which is alleged to relate to the adequacy of
the packaging or labeling of a drug which is required to have tamper-resistant
packaging under regulations of the Secretary of Health and Human Services
(including labeling regulations related to such packaging), the manufacturer or
product seller of the drug shall not be held liable for punitive damages unless
such packaging or labeling is found by the trier of fact by clear and
convincing evidence to be substantially out of compliance with such
regulations.
(4)Paragraph
(1) shall not apply in any health care lawsuit in which—
(A)a person, before
or after premarket approval, clearance, or licensure of such medical product,
knowingly misrepresented to or withheld from the Food and Drug Administration
information that is required to be submitted under the
Federal Food, Drug, and Cosmetic Act
(21 U.S.C. 301 et seq.) or section 351 of the Public Health Service Act (42 U.S.C. 262) that
is material and is causally related to the harm which the claimant allegedly
suffered; or
(B)a person made an
illegal payment to an official of the Food and Drug Administration for the
purpose of either securing or maintaining approval, clearance, or licensure of
such medical product.
8.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, in accordance with the Uniform Periodic Payment of Judgments Act
promulgated by the National Conference of Commissioners on Uniform State
Laws.
(b)This
section applies to all actions which have not been first set for trial or
retrial before the effective date of this Act.
9.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)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 the claimant, or any service, product, or other benefit provided or
reasonably likely to be provided in the future to or on behalf of the 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; and
(D)any other publicly
or privately funded program.
(4)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. The term compensatory damages includes economic
damages and noneconomic damages, as such terms are defined in this
section.
(5)The term contingent fee includes all
compensation to any person or persons which is payable only if a recovery is
effected on behalf of one or more claimants.
(6)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.
(7)The term health care lawsuit means any
health care liability claim concerning the provision of health care goods or
services or any medical product affecting interstate commerce, or any health
care liability action concerning the provision of health care goods or services
or any medical product affecting interstate commerce, brought in a State or
Federal court or pursuant to an alternative dispute resolution system, against
a health care provider, a health care organization, or the manufacturer,
distributor, supplier, marketer, promoter, or seller of a medical product,
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. Such term does not include a claim or action which is based on
criminal liability; which seeks civil fines or penalties paid to Federal,
State, or local government; or which is grounded in antitrust.
(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, a health care organization, or the manufacturer, distributor,
supplier, marketer, promoter, or seller of a medical product, 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, health care organization, or the manufacturer, distributor,
supplier, marketer, promoter, or seller of a medical product, including, but
not limited to, 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 or
medical products, 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)The term health care organization means
any person or entity which is obligated to provide or pay for health benefits
under any health plan, including any person or entity acting under a contract
or arrangement with a health care organization to provide or administer any
health benefit.
(11)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, and being
either so licensed, registered, or certified, or exempted from such requirement
by other statute or regulation.
(12)Health care
goods or servicesThe term health care goods or
services means any goods or services provided by a health care
organization, provider, or by any individual working under the supervision of a
health care provider, that relates to the diagnosis, prevention, or treatment
of any human disease or impairment, or the assessment or care of the health of
human beings.
(13)Malicious
intent to injureThe term malicious intent to injure
means intentionally causing or attempting to cause physical injury other than
providing health care goods or services.
(14)The term medical product means a drug,
device, or biological product intended for humans, and the terms
drug, device, and biological product
have the meanings given such terms in sections 201(g)(1) and 201(h) of the
Federal Food, Drug and Cosmetic Act (21 U.S.C. 321(g)(1) and (h)) and section
351(a) of the Public Health Service
Act (42 U.S.C. 262(a)), respectively, including any component or raw
material used therein, but excluding health care services.
(15)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.
(16)The term punitive damages 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.
Punitive damages are neither economic nor noneconomic damages.
(17)The
term recovery means the net sum recovered 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. Costs of health
care incurred by the plaintiff and the attorneys’ office overhead costs or
charges for legal services are not deductible disbursements or costs for such
purpose.
(18)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.
10.
(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 does 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)Except as provided in this section, nothing in this Act shall
be deemed to affect any defense available to a defendant in a health care
lawsuit or action under any other provision of Federal law.
11.State
flexibility and protection of States’ rights
(a)The provisions governing health care lawsuits set forth
in this Act 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—
(1)provides for a
greater amount of damages or contingent fees, 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)prohibits the
introduction of evidence regarding collateral source benefits, or mandates or
permits subrogation or a lien on collateral source benefits.
(b)Protection of
States’ Rights and Other Laws(1)Any issue that is not
governed by any provision of law established by or under this Act (including
State standards of negligence) shall be governed by otherwise applicable State
or Federal law.
(2)This Act shall not preempt or
supersede any State or Federal law that imposes greater procedural or
substantive protections for health care providers and health care organizations
from liability, loss, or damages than those provided by this Act or create a
cause of action.
(c)No provision of this Act shall 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 under this Act, notwithstanding
section 4(a); or
(2)any defense
available to a party in a health care lawsuit under any other provision of
State or Federal law.
12.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, except that any health care
lawsuit arising from an injury occurring prior to the date of the enactment of
this Act shall be governed by the applicable statute of limitations provisions
in effect at the time the injury occurred.