[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1215 Referred in Senate (RFS)]
<DOC>
115th CONGRESS
1st Session
H. R. 1215
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 29, 2017
Received; read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
AN ACT
To improve patient access to health care services and provide improved
medical care by reducing the excessive burden the liability system
places on the health care delivery system.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Protecting Access
to Care Act of 2017''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Encouraging speedy resolution of claims.
Sec. 3. Compensating patient injury.
Sec. 4. Maximizing patient recovery.
Sec. 5. Authorization of payment of future damages to claimants in
health care lawsuits.
Sec. 6. Product liability for health care providers.
Sec. 7. Definitions.
Sec. 8. Effect on other laws.
Sec. 9. Rules of construction.
Sec. 10. Effective date.
Sec. 11. Limitation on expert witness testimony.
Sec. 12. Communications following unanticipated outcome.
Sec. 13. Expert witness qualifications.
Sec. 14. Affidavit of merit.
Sec. 15. Notice of intent to commence lawsuit.
SEC. 2. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.
(a) Statute of Limitations.--
(1) In general.--Except as provided in paragraph (2), the
time for the commencement of a health care lawsuit shall be,
whichever occurs first of the following:
(A) 3 years after the date of the occurrence of the
breach or tort;
(B) 3 years after the date the medical or health
care treatment that is the subject of the claim is
completed; or
(C) 1 year after the claimant discovers, or through
the use of reasonable diligence should have discovered,
the injury.
(2) Tolling.--In no event shall the time for commencement
of a health care lawsuit exceed 3 years after the date of the
occurrence of the breach or tort or 3 years after the date the
medical or health care treatment that is the subject of the
claim is completed (whichever occurs first) unless tolled for
any of the following--
(A) upon proof of fraud;
(B) intentional concealment; or
(C) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the
person of the injured person.
(3) Actions by a minor.--Actions by a minor shall be
commenced within 3 years after the date of the occurrence of
the breach or tort or 3 years after the date of the medical or
health care treatment that is the subject of the claim is
completed (whichever occurs first) except that actions by a
minor under the full age of 6 years shall be commenced within 3
years after the date of the occurrence of the breach or tort, 3
years after the date of the medical or health care treatment
that is the subject of the claim is completed, or 1 year after
the injury is discovered, or through the use of reasonable
diligence should have been discovered, 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 have
committed fraud or collusion in the failure to bring an action
on behalf of the injured minor.
(b) State Flexibility.--No provision of subsection (a) shall be
construed to preempt any state law (whether effective before, on, or
after the date of the enactment of this Act) that--
(1) specifies a time period of less than 3 years after the
date of injury or less than 1 year after the claimant
discovers, or through the use of reasonable diligence should
have discovered, the injury, for the filing of a health care
lawsuit;
(2) that specifies a different time period for the filing
of lawsuits by a minor;
(3) that triggers the time period based on the date of the
alleged negligence; or
(4) establishes a statute of repose for the filing of
health care lawsuit.
SEC. 3. COMPENSATING PATIENT INJURY.
(a) Unlimited Amount of Damages for Actual Economic Losses in
Health Care Lawsuits.--In any health care lawsuit, nothing in this Act
shall limit a claimant's recovery of the full amount of the available
economic damages, notwithstanding the limitation in subsection (b).
(b) Additional Noneconomic Damages.--In any health care lawsuit,
the amount of noneconomic damages, if available, shall not exceed
$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 Damages.--For 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) Fair Share Rule.--In any health care lawsuit, each party shall
be liable for that party's several share of any damages only and not
for the share of any other person. Each party shall be liable only for
the amount of damages allocated to such party in direct proportion to
such party's percentage of responsibility. 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.
(e) State Flexibility.--No provision of this section 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 economic or noneconomic 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 section.
SEC. 4. MAXIMIZING PATIENT RECOVERY.
(a) Court Supervision of Share of Damages Actually Paid to
Claimants.--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:
(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) Applicability.--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.
(c) State Flexibility.--No provision of this section 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 lesser
percentage or lesser total value of damages which may be claimed by an
attorney representing a claimant in a health care lawsuit.
SEC. 5. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO CLAIMANTS IN
HEALTH CARE LAWSUITS.
(a) In General.--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) Applicability.--This section applies to all actions which have
not been first set for trial or retrial before the effective date of
this Act.
(c) State Flexibility.--No provision of this section shall be
construed to preempt any State law (whether effective before, on, or
after the date of the enactment of this Act) that specifies periodic
payments for future damages at any amount other than $50,000 or that
mandates such payments absent the request of either party.
SEC. 6. PRODUCT LIABILITY FOR HEALTH CARE PROVIDERS.
A 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.
SEC. 7. DEFINITIONS.
In this Act:
(1) Alternative dispute resolution system; adr.--The term
``alternative dispute resolution system'' or ``ADR'' means a
system that provides for the resolution of health care lawsuits
in a manner other than through a civil action brought in a
State or Federal court.
(2) Claimant.--The term ``claimant'' means any person who
brings a health care lawsuit, including a person who asserts or
claims a right to legal or equitable contribution, indemnity,
or subrogation, arising out of a health care liability claim or
action, and any person on whose behalf such a claim is asserted
or such an action is brought, whether deceased, incompetent, or
a minor.
(3) Collateral source benefits.--The 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) Contingent fee.--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.
(5) Economic damages.--The term ``economic damages'' means
objectively verifiable monetary losses incurred as a result of
the provision or use of (or failure to provide or use) 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, unless otherwise defined
under applicable state law. In no circumstances shall damages
for health care services or medical products exceed the amount
actually paid or incurred by or on behalf of the claimant.
(6) Future damages.--The term ``future damages'' means any
damages that are incurred after the date of judgment,
settlement, or other resolution (including mediation, or any
other form of alternative dispute resolution).
(7) Health care lawsuit.--The term ``health care lawsuit''
means any health care liability claim concerning the provision
of goods or services for which coverage was provided in whole
or in part via a Federal program, subsidy or tax benefit, or
any health care liability action concerning the provision of
goods or services for which coverage was provided in whole or
in part via a Federal program, subsidy or tax benefit, brought
in a State or Federal court or pursuant to an alternative
dispute resolution system, against a health care provider
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 action.--The term ``health care
liability action'' means a civil action brought in a State or
Federal court or pursuant to an alternative dispute resolution
system, against a health care provider regardless of the theory
of liability on which the claim is based, or the number of
plaintiffs, defendants, or other parties, or the number of
causes of action, in which the claimant alleges a health care
liability claim.
(9) Health care liability claim.--The term ``health care
liability claim'' means a demand by any person, whether or not
pursuant to ADR, against a health care provider, including, but
not limited to, third-party claims, cross-claims, counter-
claims, or contribution claims, which are based upon the
provision or use of (or the failure to provide or use) 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) Health care provider.--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, as well as any
other individual or entity defined as a health care provider,
health care professional, or health care institution under
state law.
(11) Health care services.--The term ``health care
services'' means the provision of any goods or services
(including safety, professional, or administrative services
directly related to health care) by a health care 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.
(12) Medical product.--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.
(13) Noneconomic damages.--The term ``noneconomic damages''
means damages for physical and emotional pain, suffering,
inconvenience, physical impairment, mental anguish,
disfigurement, loss of enjoyment of life, loss of society and
companionship, loss of consortium (other than loss of domestic
service), hedonic damages, injury to reputation, and all other
nonpecuniary losses of any kind or nature incurred as a result
of the provision or use of (or failure to provide or use)
health care services or medical products, unless otherwise
defined under applicable state law.
(14) Recovery.--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.
(15) Representative.--The term ``representative'' means a
legal guardian, attorney, person designated to make decisions
on behalf of a patient under a medical power of attorney, or
any person recognized in law or custom as a patient's agent.
(16) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, the Trust Territory of the Pacific Islands,
and any other territory or possession of the United States, or
any political subdivision thereof.
SEC. 8. EFFECT ON OTHER LAWS.
(a) Vaccine Injury.--
(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) Other Federal Law.--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.
SEC. 9. RULES OF CONSTRUCTION.
(a) Health Care Lawsuits.--Unless otherwise specified in this Act,
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.--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.
(c) State Flexibility.--No provision of this Act shall be construed
to preempt any defense available to a party in a health care lawsuit
under any other provision of State or Federal law.
SEC. 10. EFFECTIVE DATE.
This Act shall apply to any health care lawsuit brought in a
Federal or State court, or subject to an alternative dispute resolution
system, that is initiated on or after the date of the enactment of this
Act, 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 cause of action accrued.
SEC. 11. LIMITATION ON EXPERT WITNESS TESTIMONY.
(a) In General.--No person in a health care profession requiring
licensure under the laws of a State shall be competent to testify in
any court of law to establish the following facts--
(1) the recognized standard of acceptable professional
practice and the specialty thereof, if any, that the defendant
practices, which shall be the type of acceptable professional
practice recognized in the defendant's community or in a
community similar to the defendant's community that was in
place at the time the alleged injury or wrongful action
occurred;
(2) that the defendant acted with less than or failed to
act with ordinary and reasonable care in accordance with the
recognized standard; and
(3) that as a proximate result of the defendant's negligent
act or omission, the claimant suffered injuries which would not
otherwise have occurred,
unless the person was licensed to practice, in the State or a
contiguous bordering State, a profession or specialty which would make
the person's expert testimony relevant to the issues in the case and
had practiced this profession or specialty in one of these States
during the year preceding the date that the alleged injury or wrongful
act occurred.
(b) Applicability.--The requirements set forth in subsection (a)
shall also apply to expert witnesses testifying for the defendant as
rebuttal witnesses.
(c) Waiver Authority.--The court may waive the requirements in this
subsection if it determines that the appropriate witnesses otherwise
would not be available.
SEC. 12. COMMUNICATIONS FOLLOWING UNANTICIPATED OUTCOME.
(a) Provider Communications.--In any health care liability action,
any and all statements, affirmations, gestures, or conduct expressing
apology, fault, sympathy, commiseration, condolence, compassion, or a
general sense of benevolence which are made by a health care provider
or an employee of a health care provider to the patient, a relative of
the patient, or a representative of the patient and which relate to the
discomfort, pain, suffering, injury, or death of the patient as the
result of the unanticipated outcome of medical care shall be
inadmissible for any purpose as evidence of an admission of liability
or as evidence of an admission against interest.
(b) State Flexibility.--No provision of this section shall be
construed to preempt any State law (whether effective before, on, or
after the date of the enactment of this Act) that makes additional
communications inadmissible as evidence of an admission of liability or
as evidence of an admission against interest.
SEC. 13. EXPERT WITNESS QUALIFICATIONS.
(a) In General.--In any health care lawsuit, an individual shall
not give expert testimony on the appropriate standard of practice or
care involved unless the individual is licensed as a health
professional in one or more States and the individual meets the
following criteria:
(1) 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.
(2) 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:
(A) 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.
(B) 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.
(3) 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:
(A) Active clinical practice as a general
practitioner.
(B) Instruction of students in an accredited health
professional school or accredited residency or clinical
research program in the same health profession as the
defendant.
(b) Lawsuits Against Entities.--If the defendant in a health care
lawsuit is an entity that employs a person against whom or on whose
behalf the testimony is offered, the provisions of subsection (a) apply
as if the person were the party or defendant against whom or on whose
behalf the testimony is offered.
(c) Power of Court.--Nothing in this subsection shall limit the
power of the trial court in a health care lawsuit to disqualify an
expert witness on grounds other than the qualifications set forth under
this subsection.
(d) Limitation.--An expert witness in a health care lawsuit shall
not be permitted to testify if the fee of the witness is in any way
contingent on the outcome of the lawsuit.
(e) State Flexibility.--No provision of this section shall be
construed to preempt any State law (whether effective before, on, or
after the date of the enactment of this Act) that places additional
qualification requirements upon any individual testifying as an expert
witness.
SEC. 14. AFFIDAVIT OF MERIT.
(a) Required Filing.--Subject to subsection (b), the plaintiff in a
health care lawsuit alleging negligence or, if the plaintiff is
represented by an attorney, the plaintiff's attorney shall file
simultaneously with the health care lawsuit an affidavit of merit
signed by a health professional who meets the requirements for an
expert witness under section 14 of this Act. The affidavit of merit
shall certify that the health professional has reviewed the notice and
all medical records supplied to him or her by the plaintiff's attorney
concerning the allegations contained in the notice and shall contain a
statement of each of the following:
(1) The applicable standard of practice or care.
(2) The health professional's opinion that the applicable
standard of practice or care was breached by the health
professional or health facility receiving the notice.
(3) The actions that should have been taken or omitted by
the health professional or health facility in order to have
complied with the applicable standard of practice or care.
(4) The manner in which the breach of the standard of
practice or care was the proximate cause of the injury alleged
in the notice.
(5) A listing of the medical records reviewed.
(b) Filing Extension.--Upon motion of a party for good cause shown,
the court in which the complaint is filed may grant the plaintiff or,
if the plaintiff is represented by an attorney, the plaintiff's
attorney an additional 28 days in which to file the affidavit required
under subsection (a).
(c) State Flexibility.--No provision of this section shall be
construed to preempt any State law (whether effective before, on, or
after the date of the enactment of this Act) that establishes
additional requirements for the filing of an affidavit of merit or
similar pre-litigation documentation.
SEC. 15. NOTICE OF INTENT TO COMMENCE LAWSUIT.
(a) Advance Notice.--A person shall not commence a health care
lawsuit against a health care provider unless the person has given the
health care provider 90 days written notice before the action is
commenced.
(b) Exceptions.--A health care lawsuit against a health care
provider filed within 6 months of the statute of limitations expiring
as to any claimant, or within 1 year of the statute of repose expiring
as to any claimant, shall be exempt from compliance with this section.
(c) State Flexibility.--No provision of this section shall be
construed to preempt any State law (whether effective before, on, or
after the date of the enactment of this Act) that establishes a
different time period for the filing of written notice.
Passed the House of Representatives June 28, 2017.
Attest:
KAREN L. HAAS,
Clerk.