1.
(a)This Act may be cited
as the Job Creation Act of
2011
.
(b)The table of contents of this Act is as follows:
Sec. 1. Short title;
etc.
TITLE I—Tax and regulatory relief
Sec. 101. Temporary employer payroll tax cut.
Sec. 102. Repeal of individual mandate.
Sec. 103. Repeal of expansion of information reporting
requirements.
Sec. 104. Environmental Protection Agency regulatory
freeze.
Sec. 105. Repeal of sunset on increased limitations on small
business expensing.
Sec. 106. Permanent extension of research credit.
TITLE II—Enacting Real Medical Liability Reform
Sec. 201. Encouraging speedy resolution of claims.
Sec. 202. Compensating patient injury.
Sec. 203. Maximizing patient recovery.
Sec. 204. Additional health benefits.
Sec. 205. Punitive damages.
Sec. 206. Authorization of payment of future damages to
claimants in health care lawsuits.
Sec. 207. Definitions.
Sec. 208. Effect on other laws.
Sec. 209. State flexibility and protection of States’
rights.
Sec. 210. Applicability; effective date.
<enum>I</enum><header>Tax
and regulatory relief</header>
<section id="id0AD9C4D218FE4AE3B0C3B29AE286642A"><enum>101.</enum><header>Temporary
employer payroll tax cut</header>
<subsection id="idC9F0D83D4D6A4C5BABAE28FF00BC82F5"><enum>(a)</enum><header>In
general</header>
<paragraph id="idC27F393D01EE42BA8421B4996C532D30"><enum>(1)</enum><header>Employers</header><text>Section
601(a) of the Tax Relief, Unemployment Insurance Reauthorization, and Job
Creation Act of 2010 is amended by striking <quote>and</quote> at the end of
paragraph (1), by striking the period at the end of paragraph (2), and by
adding at the end the following new paragraph:</text>
<quoted-block display-inline="no-display-inline" id="id70E83249EC5F4D01ABF45D46ED352A9D" style="OLC">
<paragraph id="idA8FF1431BB4C4832BD87571AC457409C"><enum>(3)</enum><text>with respect to
remuneration received during the payroll tax holiday period, the rate of tax
under 3111(a) of such Code shall be 4.2 percent (including for purposes of
determining the applicable percentage under sections 3221(a) of such
Code).</text>
</paragraph><after-quoted-block>.</after-quoted-block></quoted-block>
</paragraph><paragraph id="idFC6B97A2F6594A3C9FA93964CC0C4381"><enum>(2)</enum><header>Self-employed
individuals</header><text>Section 601(a) of such Act is amended by striking
<quote>10.40 percent</quote> in paragraph (1) and inserting <quote>8.40
percent</quote>.</text>
</paragraph></subsection><subsection id="id2ACE852985AF4CEA967BB9D013507024"><enum>(b)</enum><header>Conforming
amendments</header>
<paragraph id="id80CE404528514E1890EC7BBA43DAB748"><enum>(1)</enum><text>Section 601 of
the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of
2010 is amended by striking subsection (b).</text>
</paragraph><paragraph id="id1D5B3D8314AB4F97A082DC392488055E"><enum>(2)</enum><text>Section 601(e)(2)
of such Act is amended by striking <quote>subsection (a)(2)</quote> and
inserting <quote>paragraphs (2) and (3) of subsection (a)</quote>.</text>
</paragraph><paragraph id="id95EEE086E8BF41F7A9EB72D45AF7DB51"><enum>(3)</enum><text>The headings for
title VI and section 601 of such Act are each amended by striking
<quote>employee</quote>.</text>
</paragraph></subsection><subsection id="idB28D23F3D00B470CA190331283139E5C"><enum>(c)</enum><header>Effective
date</header>
<paragraph id="idCD04972C823B46919BE001F4E0D71463"><enum>(1)</enum><header>In
general</header><text>The amendments made by this section shall apply to wages
paid and self-employment income earned after December 31, 2010.</text>
</paragraph><paragraph id="idA64526863F41431C8F7CBF67ED62F885"><enum>(2)</enum><header>Special
transition rule</header>
<subparagraph id="H70F2C3243FE74D8190FDCD3084E0DA3A"><enum>(A)</enum><header>Nonapplication
of reduction during first quarter</header><text display-inline="yes-display-inline">The amendments made by subsection (a)(1)
shall not apply with respect to compensation paid during the first calendar
quarter of 2011.</text>
</subparagraph><subparagraph id="HEF577D4342474686801F4D3D755F6159"><enum>(B)</enum><header>Crediting of
first quarter exemption during second quarter</header><text display-inline="yes-display-inline">The amount by which the tax imposed under
sections 3111(a) and 3221(a) of the Internal Revenue Code of 1986 would (but
for the application of subparagraph (A)) have been reduced with respect to
compensation paid by an employer during the first calendar quarter of 2011
shall be treated as a payment against the tax imposed under section 3111(a) of
such Code or section 3121(a) of such Code, as the case may be, with respect to
the employer for the second calendar quarter of 2011 which is made on the date
that such tax is due.</text>
</subparagraph></paragraph></subsection></section><section commented="no" id="idF90BE6E5E06C44E8B7BB368CB1AC7302"><enum>102.</enum><header>Repeal of
individual mandate</header><text display-inline="no-display-inline">Section
5000A of the Internal Revenue Code of 1986, as added by the Patient Protection
and Affordable Care Act, is amended by adding at the end the following new
subsection:</text>
<quoted-block display-inline="no-display-inline" id="id7E98A67BA3954A72B4C213DB7C828704" style="OLC">
<subsection commented="no" id="id47A9203E048640F29D7EB70CE766FAAB"><enum>(h)</enum><header>Termination</header><text display-inline="yes-display-inline">This section shall not apply with respect
to any month beginning after the date of the enactment of this
subsection.</text>
</subsection><after-quoted-block>.</after-quoted-block></quoted-block>
</section><section id="id2335F0D81D944DF580FF43C44931FEF3"><enum>103.</enum><header>Repeal of
expansion of information reporting requirements</header>
<subsection id="id251C57C8A2A542EC8A02A626852D345A"><enum>(a)</enum><header>In
general</header>
<paragraph id="id7C3D26241DE942858BB381612ADB6D1D"><enum>(1)</enum><header>Repeal of
payments for property and other gross proceeds</header><text display-inline="yes-display-inline">Subsection (b) of section 9006 of the
Patient Protection and Affordable Care Act, and the amendments made thereby,
are hereby repealed; and the Internal Revenue Code of 1986 shall be applied as
if such subsection, and amendments, had never been enacted.</text>
</paragraph><paragraph id="idD290D7454419469B90E37127C2D3366B"><enum>(2)</enum><header>Repeal of
application to corporations and regulatory authority</header>
<subparagraph id="id279CA537C75340328AAEC54C7A4A0037"><enum>(A)</enum><header>In
general</header><text>Section 6041 of the Internal Revenue Code of 1986, as
amended by section 9006(a) of the Patient Protection and Affordable Care Act
and section 2101 of the Small Business Jobs Act of 2010, is amended by striking
subsections (i) and (j).</text>
</subparagraph><subparagraph commented="no" display-inline="no-display-inline" id="idF8669A1A8DC04245BF1B8B54970DD248"><enum>(B)</enum><header>Effective
date</header><text>The amendment made by this paragraph shall apply to payments
made after December 31, 2010.</text>
</subparagraph></paragraph></subsection><subsection commented="no" display-inline="no-display-inline" id="idBDDE6B1C3EF54AA59FDCF0E5C0AF68BE"><enum>(b)</enum><header>Rescission of
unspent Federal funds To offset loss in revenues</header>
<paragraph id="ID862d7a85ff7043cba478180d846d9de8"><enum>(1)</enum><header>In
general</header><text>Notwithstanding any other provision of law, of all
available unobligated funds, $39,000,000,000 in appropriated discretionary
funds are hereby rescinded.</text>
</paragraph><paragraph id="IDa593cdd0137e4ee59d1144d9d4109e21"><enum>(2)</enum><header>Implementation</header><text>The
Director of the Office of Management and Budget shall determine and identify
from which appropriation accounts the rescission under subsection (a) shall
apply and the amount of such rescission that shall apply to each such account.
Not later than 60 days after the date of the enactment of this Act, the
Director of the Office of Management and Budget shall submit a report to the
Secretary of the Treasury and Congress of the accounts and amounts determined
and identified for rescission under the preceding sentence.</text>
</paragraph><paragraph commented="no" display-inline="no-display-inline" id="ID1917734fd16147f79c82107dbb2138d8"><enum>(3)</enum><header>Exception</header><text>This
subsection shall not apply to the unobligated funds of the Department of
Defense or the Department of Veterans Affairs. </text>
</paragraph></subsection></section><section id="id906B2E61B8FF43D89C3343BF608AD408"><enum>104.</enum><header>Environmental
Protection Agency regulatory freeze</header>
<subsection id="idC065D16A73F24E7EA2A618F03D53B40B"><enum>(a)</enum><header>In
general</header><text>Notwithstanding any other provision of law and beginning
on the date of enactment of this Act, the Administrator of the Environmental
Protection Agency shall not promulgate or enforce any regulation for a period
of 1 year, subject to subsection (b).</text>
</subsection><subsection id="idB1DCE3444CF546519BBF2CB42E8D91F5"><enum>(b)</enum><header>Exception</header><text>The
Administrator of the Environmental Protection Agency may promulgate or enforce
a regulation during the 1-year period described in subsection (a) if the
Administrator determines that the promulgation or enforcement of the regulation
is necessary for immediate health or safety reasons.</text>
</subsection></section><section id="id7084B42DAB7C4100B8C9543A852D25FC"><enum>105.</enum><header>Repeal of
sunset on increased limitations on small business expensing</header>
<subsection commented="no" id="id3E69A58919D74E21BB6C30EC3AD89526"><enum>(a)</enum><header>In
general</header><text>Subsection (b)(1) of section 179 of the Internal Revenue
Code of 1986, as amended by the Tax Relief, Unemployment Insurance
Reauthorization, and Job Creation Act of 2010, is amended by striking
<quote>shall not exceed—</quote> and all that follows and inserting
<quote>shall not exceed $500,000.</quote>.</text>
</subsection><subsection commented="no" id="id347FBDEDE7E84FFE843955B4B888012D"><enum>(b)</enum><header>Reduction in
Limitation</header><text>Subsection (b)(2) of section 179 of such Code, as
amended by the Tax Relief, Unemployment Insurance Reauthorization, and Job
Creation Act of 2010, is amended by striking <quote>exceeds—</quote> and all
that follows and inserting <quote>exceeds $2,000,000.</quote>.</text>
</subsection><subsection commented="no" id="id3F94CF3A9B2B4B8C8265CBD35C02239A"><enum>(c)</enum><header>Conforming
amendment</header><text>Section 179(b) of such Code, as amended by the Tax
Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010,
is amended by striking paragraph (6).</text>
</subsection><subsection id="IDe573b7d2588b4585aeecd0e63222459d"><enum>(d)</enum><header>Computer
software</header><text>Section 179(d)(1)(A)(ii) of such Code, as amended by the
Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of
2010, is amended by striking <quote>and before 2013</quote>.</text>
</subsection><subsection id="ID187ce669ca6b469c9a5206fa8b04fa92"><enum>(e)</enum><header>Revocation of
election</header><text>Section 179(c)(2) of such Code, as amended by the Tax
Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010,
is amended to read as follows:</text>
<quoted-block display-inline="no-display-inline" id="idD500968AA2274D57977F7F0D0A9D9C47" style="OLC">
<paragraph id="idB0E12CF0353D4A4385E8C8236894EEAA"><enum>(2)</enum><header>Revocation of
election</header><text>Any election made under this section, and any
specification contained in any such election, may be revoked by the taxpayer
with respect to any property, and such revocation, once made, shall be
irrevocable.</text>
</paragraph><after-quoted-block>.</after-quoted-block></quoted-block>
</subsection><subsection commented="no" display-inline="no-display-inline" id="id53E5EF924ED746CB818AF1A26044D1E9"><enum>(f)</enum><header>Effective
date</header><text display-inline="yes-display-inline">The amendments made by
this section shall apply to taxable years beginning after December 31,
2011.</text>
</subsection></section><section commented="no" display-inline="no-display-inline" id="id9F2DFECBFEB8480A96B6505CD21805AC"><enum>106.</enum><header>Permanent
extension of research credit</header>
<subsection id="ID5723e1b5733b47e0a239b9409f02d7da"><enum>(a)</enum><header>In
general</header><text>Section 41 of the Internal Revenue Code of 1986 is
amended by striking subsection (h).</text>
</subsection><subsection id="ID65a85edc658e4aa6b78905b0e8e069d9"><enum>(b)</enum><header>Conforming
amendment</header><text>Paragraph (1) of section 45C(b) of the Internal Revenue
Code of 1986 is amended by striking subparagraph (D).</text>
</subsection><subsection id="IDfbd40c0ff1ab47b690fa1e1b6effbf0a"><enum>(c)</enum><header>Effective
date</header><text>The amendments made by this section shall apply to taxable
years beginning after December 31, 2010.</text>
</subsection></section><enum>II</enum><header>Enacting Real
Medical Liability Reform</header>
<section id="H7BEF913054C54F46AD5180C6D61BAA28"><enum>201.</enum><header>Encouraging
speedy resolution of claims</header><text display-inline="no-display-inline">The 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—</text>
<paragraph id="HDB0255605C4745DCA8FFBC99AADC794C"><enum>(1)</enum><text>upon proof of
fraud;</text>
</paragraph><paragraph id="H4B23E2B7572F4FB284129F22BB53BC9B"><enum>(2)</enum><text>intentional
concealment; or</text>
</paragraph><paragraph id="HA645E5538B124EC181BB65096EED6282"><enum>(3)</enum><text>the presence of a
foreign body, which has no therapeutic or diagnostic purpose or effect, in the
person of the injured person.</text>
</paragraph><continuation-text continuation-text-level="section">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.</continuation-text></section><section id="HF047F9CBAA7743F0BB3E5C7AD20FDDC8"><enum>202.</enum><header>Compensating
patient injury</header>
<subsection id="H66D274D7C85744E58F8D843EE5FF095B"><enum>(a)</enum><header>Unlimited Amount
of Damages for Actual Economic Losses in Health Care Lawsuits</header><text>In
any health care lawsuit, nothing in this title shall limit a claimant’s
recovery of the full amount of the available economic damages, notwithstanding
the limitation in
<internal-xref idref="H2B0ECD16299F49098E3344826B7DE5BD" legis-path="302.(b)">subsection (b)</internal-xref>.</text>
</subsection><subsection id="H2B0ECD16299F49098E3344826B7DE5BD"><enum>(b)</enum><header>Additional
Noneconomic Damages</header><text>In 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.</text>
</subsection><subsection id="HFAD38229AF914F7EB91F069BFF4DBE7A"><enum>(c)</enum><header>No Discount of
Award for Noneconomic Damages</header><text>For purposes of applying the
limitation in
<internal-xref idref="H2B0ECD16299F49098E3344826B7DE5BD" legis-path="302.(b)">subsection (b)</internal-xref>, 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.</text>
</subsection><subsection id="HC3CE09CB43D845839C2B0F1739707E64"><enum>(d)</enum><header>Fair Share
Rule</header><text>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.</text>
</subsection></section><section id="H7DFCE81905C142E1818C6F565914FCD2"><enum>203.</enum><header>Maximizing
patient recovery</header>
<subsection id="H88419B12CFFF4464B53B8AAF2A339E75"><enum>(a)</enum><header>Court
Supervision of Share of Damages Actually Paid to Claimants</header><text>In 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:</text>
<paragraph id="H6121BBBFCD3744AE9D39F06894627A10"><enum>(1)</enum><text>40 percent of the
first $50,000 recovered by the claimant(s).</text>
</paragraph><paragraph id="H53D9989D1AF944529C6BA49D56D9916A"><enum>(2)</enum><text>33<fraction>1/3</fraction>
percent of the next $50,000 recovered by the claimant(s).</text>
</paragraph><paragraph id="HA7014D3BB63B4DCBA2D5A62A83C1FF87"><enum>(3)</enum><text>25 percent of the
next $500,000 recovered by the claimant(s).</text>
</paragraph><paragraph id="H764B189CCB574C63A48F2DE287F4D79A"><enum>(4)</enum><text>15 percent of any
amount by which the recovery by the claimant(s) is in excess of
$600,000.</text>
</paragraph></subsection><subsection id="H87AF92F7741F485F907066319976D421"><enum>(b)</enum><header>Applicability</header><text>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
<internal-xref idref="H88419B12CFFF4464B53B8AAF2A339E75" legis-path="303.(a)">subsection (a)</internal-xref> applies only in civil
actions.</text>
</subsection></section><section id="HCC81B782D7164B56BBCA1A50BD3FF180"><enum>204.</enum><header>Additional
health benefits</header><text display-inline="no-display-inline">In 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 <act-name parsable-cite="SSA">Social Security
Act</act-name>.</text>
</section><section id="HEB779335A8C64A1E9E4322C5723A2658"><enum>205.</enum><header>Punitive
damages</header>
<subsection id="HFCF575FAC32F428084916E02CE81ED8E"><enum>(a)</enum><header>In
General</header><text>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—</text>
<paragraph id="HF8790F39ED3347DA8A2C6570749DF8C5"><enum>(1)</enum><text>whether punitive
damages are to be awarded and the amount of such award; and</text>
</paragraph><paragraph id="HA6B5BFA276FB44F28E8F20B6336901AB"><enum>(2)</enum><text>the amount of
punitive damages following a determination of punitive liability.</text>
</paragraph><continuation-text continuation-text-level="subsection">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.</continuation-text></subsection><subsection id="H274E117D387C4177BD4AA8060B1A208B"><enum>(b)</enum><header>Determining
Amount of Punitive Damages</header>
<paragraph id="H217192B3AA414D358946F384A6D1CC62"><enum>(1)</enum><header>Factors
considered</header><text>In determining the amount of punitive damages, if
awarded, in a health care lawsuit, the trier of fact shall consider only the
following—</text>
<subparagraph id="HA5DBF61C1D8A4F66A60D0AE3A31898CA"><enum>(A)</enum><text>the severity of
the harm caused by the conduct of such party;</text>
</subparagraph><subparagraph id="HAB7E957E914F4419A55E2DC46EA10FDB"><enum>(B)</enum><text>the duration of
the conduct or any concealment of it by such party;</text>
</subparagraph><subparagraph id="H0F231CE0F8AA40E88C06BCCAF1C79D38"><enum>(C)</enum><text>the profitability
of the conduct to such party;</text>
</subparagraph><subparagraph id="HBB247F70E6EC4F9DBCA3CC3770B0D4D2"><enum>(D)</enum><text>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;</text>
</subparagraph><subparagraph id="H281FABC797C4480EB1D057B21DBBD94C"><enum>(E)</enum><text>any criminal
penalties imposed on such party, as a result of the conduct complained of by
the claimant; and</text>
</subparagraph><subparagraph id="HAFC095B0B5904C6786FC8A5623BEA2CF"><enum>(F)</enum><text>the amount of any
civil fines assessed against such party as a result of the conduct complained
of by the claimant.</text>
</subparagraph></paragraph><paragraph id="H4B6026E4B6134AC09AE5D0223FCF1C54"><enum>(2)</enum><header>Maximum
award</header><text>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.</text>
</paragraph></subsection></section><section id="H07AA2E9A122A4A2E97A725E4F9031037"><enum>206.</enum><header>Authorization
of payment of future damages to claimants in health care lawsuits</header>
<subsection id="HE5E0B4125C1A4EF1B5988A548C4B536E"><enum>(a)</enum><header>In
General</header><text>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 any health care lawsuit, the court may be guided by the Uniform
Periodic Payment of Judgments Act promulgated by the National Conference of
Commissioners on Uniform State Laws.</text>
</subsection><subsection id="HA9127C3ADBB04EBBA3FA35834A7FC646"><enum>(b)</enum><header>Applicability</header><text>This
section applies to all actions which have not been first set for trial or
retrial before the effective date of this title.</text>
</subsection></section><section id="H83F8D07B56054216B274647B6E36B37F"><enum>207.</enum><header>Definitions</header><text display-inline="no-display-inline">In this title:</text>
<paragraph id="H7204EB46BAA14F778444D7C0617A9C3E"><enum>(1)</enum><header>Alternative
dispute resolution system; ADR</header><text>The term <term>alternative dispute
resolution system</term> or <term>ADR</term> 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.</text>
</paragraph><paragraph id="H9FB863252FF64C0DA5680767E78851DE"><enum>(2)</enum><header>Claimant</header><text>The
term <term>claimant</term> 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.</text>
</paragraph><paragraph id="H6538394F57E049C98F6DDAE86227DFC2"><enum>(3)</enum><header>Collateral
source benefits</header><text>The term <term>collateral source benefits</term>
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—</text>
<subparagraph id="H87322E19FDBB4B02BF3559AFDF7F40EC"><enum>(A)</enum><text>any State or
Federal health, sickness, income-disability, accident, or workers’ compensation
law;</text>
</subparagraph><subparagraph id="H11752BA912BD411E8096707BB1AEB098"><enum>(B)</enum><text>any health,
sickness, income-disability, or accident insurance that provides health
benefits or income-disability coverage;</text>
</subparagraph><subparagraph id="HD9AEC5225EE24C0184B4BFF00455A3BA"><enum>(C)</enum><text>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</text>
</subparagraph><subparagraph id="HE0B8AEBC3BD1458B83B3C8EC2871E959"><enum>(D)</enum><text>any other publicly
or privately funded program.</text>
</subparagraph></paragraph><paragraph id="HF42BBC1396BF41CEB7494016BFB55E16"><enum>(4)</enum><header>Compensatory
damages</header><text>The term <term>compensatory damages</term> 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 <term>compensatory damages</term> includes economic
damages and noneconomic damages, as such terms are defined in this
section.</text>
</paragraph><paragraph id="HE0A41BD505CC4FE8816A2B03D48BF7D8"><enum>(5)</enum><header>Contingent
fee</header><text>The term <term>contingent fee</term> includes all
compensation to any person or persons which is payable only if a recovery is
effected on behalf of one or more claimants.</text>
</paragraph><paragraph id="H489D0552DA2B48C38CCC7066FE61BEA2"><enum>(6)</enum><header>Economic
damages</header><text>The term <term>economic damages</term> 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.</text>
</paragraph><paragraph id="H72EEEF7B72D045D7B31928005AC09199"><enum>(7)</enum><header>Health care
lawsuit</header><text>The term <term>health care lawsuit</term> 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.</text>
</paragraph><paragraph id="H754498AF3C344AD3B7192E686D7FEABC"><enum>(8)</enum><header>Health care
liability action</header><text>The term <term>health care liability
action</term> 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.</text>
</paragraph><paragraph id="HA5C1525F2A2A46A8955A6D731AA2CF63"><enum>(9)</enum><header>Health care
liability claim</header><text>The term <term>health care liability claim</term>
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.</text>
</paragraph><paragraph id="H0669D018A294475A8D212D692CFD8891"><enum>(10)</enum><header>Health care
organization</header><text>The term <term>health care organization</term> 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.</text>
</paragraph><paragraph id="H1A42EDEB3E664F2AA0E9DDC0C1FF0023"><enum>(11)</enum><header>Health care
provider</header><text>The term <term>health care provider</term> 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.</text>
</paragraph><paragraph id="HABE2ECC78C604492BB8BFC4A3BA4098B"><enum>(12)</enum><header>Health care
goods or services</header><text>The term <term>health care goods or
services</term> 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.</text>
</paragraph><paragraph id="H661B232A528E4D40B98A68103B82C929"><enum>(13)</enum><header>Malicious
intent to injure</header><text>The term <term>malicious intent to injure</term>
means intentionally causing or attempting to cause physical injury other than
providing health care goods or services.</text>
</paragraph><paragraph id="H957EF47497AE4A428C841C4C33B29B2F"><enum>(14)</enum><header>Medical
product</header><text>The term <term>medical product</term> means a drug,
device, or biological product intended for humans, and the terms
<term>drug</term>, <term>device</term>, and <term>biological product</term>
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 <act-name parsable-cite="PHSA">Public Health Service
Act</act-name> (42 U.S.C. 262(a)), respectively, including any component or raw
material used therein, but excluding health care services.</text>
</paragraph><paragraph id="HDACC994205234569936151777761CBAF"><enum>(15)</enum><header>Noneconomic
damages</header><text>The term <term>noneconomic damages</term> 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.</text>
</paragraph><paragraph id="H943F8F637B6C4A60A6A625233BF3A8E2"><enum>(16)</enum><header>Punitive
damages</header><text>The term <term>punitive damages</term> 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.</text>
</paragraph><paragraph id="HB9896645192E4DD7B8861FD62ACECB7E"><enum>(17)</enum><header>Recovery</header><text>The
term <term>recovery</term> 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.</text>
</paragraph><paragraph id="H69DB5B79100E4BB6B52EED6AA19A6B90"><enum>(18)</enum><header>State</header><text>The
term <term>State</term> 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.</text>
</paragraph></section><section id="HFD3F57C1BE264AABA4F89FAB5795FD1B"><enum>208.</enum><header>Effect on other
laws</header>
<subsection id="H44B3E1A480F64B38A5257295813AE7D6"><enum>(a)</enum><header>Vaccine
Injury</header>
<paragraph id="H4ED90F8BD14B47AD820604B1FF66B9FE"><enum>(1)</enum><text>To the extent that
title XXI of the <act-name parsable-cite="PHSA">Public Health Service
Act</act-name> establishes a Federal rule of law applicable to a civil action
brought for a vaccine-related injury or death—</text>
<subparagraph id="H067DC2327DAD44B9BE770BE2529F1795"><enum>(A)</enum><text>this title does
not affect the application of the rule of law to such an action; and</text>
</subparagraph><subparagraph id="HD58177B998F64D8688BF96AB74FF09B5"><enum>(B)</enum><text>any rule of law
prescribed by this title in conflict with a rule of law of such title XXI shall
not apply to such action.</text>
</subparagraph></paragraph><paragraph id="H512131BE3EC8497693450E658B688F54"><enum>(2)</enum><text>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 <act-name parsable-cite="PHSA">Public Health Service Act</act-name> does not apply, then
this title or otherwise applicable law (as determined under this title) will
apply to such aspect of such action.</text>
</paragraph></subsection><subsection id="H4334116A7F874AA8A119251310325F79"><enum>(b)</enum><header>Other Federal
Law</header><text>Except as provided in this section, nothing in this title
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.</text>
</subsection></section><section id="H58DA1C02A1E145BDBE83CBDD2086B4CE"><enum>209.</enum><header>State
flexibility and protection of States’ rights</header>
<subsection id="H83E54882A2764DB2B84D7708DA60FAD9"><enum>(a)</enum><header>Health Care
Lawsuits</header><text>The provisions governing health care lawsuits set forth
in this title 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 title. The provisions governing health care
lawsuits set forth in this title supersede chapter 171 of title 28, United
States Code, to the extent that such chapter—</text>
<paragraph id="HB2494E3B474F4445AE5DCFA0956E544D"><enum>(1)</enum><text>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 title; or</text>
</paragraph><paragraph id="H36C8728A77D144AEA26FB52ECB361849"><enum>(2)</enum><text>prohibits the
introduction of evidence regarding collateral source benefits, or mandates or
permits subrogation or a lien on collateral source benefits.</text>
</paragraph></subsection><subsection id="H82B71F9EB4EB4C25A7F748EC5CA50D38"><enum>(b)</enum><header>Protection of
States’ Rights and Other Laws</header><paragraph commented="no" display-inline="yes-display-inline" id="HB46934CAD65945AB8715146B45C02AA4"><enum>(1)</enum><text>Any issue that is not
governed by any provision of law established by or under this title (including
State standards of negligence) shall be governed by otherwise applicable State
or Federal law.</text>
</paragraph><paragraph id="H09ABE1DCD93B45A7ABA8890D59F35CC7" indent="up1"><enum>(2)</enum><text>This title 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 title or create a
cause of action.</text>
</paragraph></subsection><subsection id="HB8D81B0D27A146998E5C7F3B485416A6"><enum>(c)</enum><header>State
Flexibility</header><text>No provision of this title shall be construed to
preempt—</text>
<paragraph id="H6EB0F9E117404EE6BC84C8F43F9A324C"><enum>(1)</enum><text>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 title, notwithstanding
<internal-xref idref="H66D274D7C85744E58F8D843EE5FF095B" legis-path="302.(a)">section 202(a)</internal-xref>; or</text>
</paragraph><paragraph id="H7CF6AD13120C4E6192CB6E4A682EF293"><enum>(2)</enum><text>any defense
available to a party in a health care lawsuit under any other provision of
State or Federal law.</text>
</paragraph></subsection></section><section commented="no" display-inline="no-display-inline" id="H3A14A3223CC441BE87ACB299DB18D957" section-type="subsequent-section"><enum>210.</enum><header>Applicability;
effective date</header><text display-inline="no-display-inline">This title
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.</text>
</section>