[House Report 115-179]
[From the U.S. Government Publishing Office]


115th Congress    }                                         {  Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                         { 115-179

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PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 1215) 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

                                _______
                                

   June 13, 2017.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

               Mr. Burgess, from the Committee on Rules, 
                        submitted the following

                              R E P O R T

                       [To accompany H. Res. 382]

    The Committee on Rules, having had under consideration 
House Resolution 382, by a record vote of 7 to 3, report the 
same to the House with the recommendation that the resolution 
be adopted.

                SUMMARY OF PROVISIONS OF THE RESOLUTION

    The resolution provides for consideration of H.R. 1215, the 
Protecting Access to Care Act of 2017, under a structured rule. 
The resolution provides one hour of general debate equally 
divided and controlled by the chair and ranking minority member 
of the Committee on the Judiciary. The resolution waives all 
points of order against consideration of the bill. The 
resolution makes in order as original text for purpose of 
amendment an amendment in the nature of a substitute consisting 
of the text of Rules Committee Print 115-10 and provides that 
it shall be considered as read. The resolution waives all 
points of order against that amendment in the nature of a 
substitute. The resolution makes in order only those further 
amendments printed in this report. Each such amendment may be 
offered only in the order printed in this report, may be 
offered only by a Member designated in this report, shall be 
considered as read, shall be debatable for the time specified 
in this report equally divided and controlled by the proponent 
and an opponent, shall not be subject to amendment, and shall 
not be subject to a demand for division of the question in the 
House or in the Committee of the Whole. The resolution waives 
all points of order against the amendments printed in this 
report. The resolution provides one motion to recommit with or 
without instructions.

                         EXPLANATION OF WAIVERS

    The waiver of all points of order against consideration of 
the bill includes a waiver of section 303 of the Congressional 
Budget Act, which prohibits consideration of legislation 
providing a change in revenues for a fiscal year until the 
budget resolution for that year has been agreed to.
    Although the resolution waives all points of order against 
the amendment in the nature of a substitute made in order as 
original text, the Committee is not aware of any points of 
order. The waiver is prophylactic in nature.
    Although the resolution waives all points of order against 
the amendments printed in this report, the Committee is not 
aware of any points of order. The waiver is prophylactic in 
nature.

                            COMMITTEE VOTES

    The results of each record vote on an amendment or motion 
to report, together with the names of those voting for and 
against, are printed below:

Rules Committee record vote No. 62

    Motion by Mr. McGovern to report an open rule. Defeated: 3-
7

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                Majority Members                      Vote               Minority Members               Vote
----------------------------------------------------------------------------------------------------------------
Mr. Cole........................................          Nay   Ms. Slaughter.....................          Yea
Mr. Woodall.....................................          Nay   Mr. McGovern......................          Yea
Mr. Burgess.....................................          Nay   Mr. Hastings of Florida...........          Yea
Mr. Collins.....................................          Nay   Mr. Polis.........................  ............
Mr. Byrne.......................................  ............
Mr. Newhouse....................................          Nay
Mr. Buck........................................          Nay
Ms. Cheney......................................  ............
Mr. Sessions, Chairman..........................          Nay
----------------------------------------------------------------------------------------------------------------

Rules Committee record vote No. 63

    Motion by Mr. Cole to report the rule. Adopted: 7-3

----------------------------------------------------------------------------------------------------------------
                Majority Members                      Vote               Minority Members               Vote
----------------------------------------------------------------------------------------------------------------
Mr. Cole........................................          Yea   Ms. Slaughter.....................          Nay
Mr. Woodall.....................................          Yea   Mr. McGovern......................          Nay
Mr. Burgess.....................................          Yea   Mr. Hastings of Florida...........          Nay
Mr. Collins.....................................          Yea   Mr. Polis.........................  ............
Mr. Byrne.......................................  ............
Mr. Newhouse....................................          Yea
Mr. Buck........................................          Yea
Ms. Cheney......................................  ............
Mr. Sessions, Chairman..........................          Yea
----------------------------------------------------------------------------------------------------------------

                SUMMARY OF THE AMENDMENTS MADE IN ORDER

    1. Sessions (TX), Burgess (TX): Begins the tolling of the 
statute of limitations on the date of the alleged breach or 
tort, rather than the date of the injury, which is not always a 
date certain. The statute of limits will be three years after 
the alleged breach or one year after the claimant discovers the 
breach, whichever occurs first. (10 minutes)
    2. Burgess (TX), Sessions (TX): Clarifies that health care 
services as defined in H.R. 1215 include safety, professional, 
and administrative services directly related to health care. 
(10 minutes)
    3. Roe (TN), Hudson (NC), Marshall (KS), Bucshon (IN): 
Limits who qualifies as an expert witness, in medical 
malpractice negligence cases, based on professional 
qualifications as well as geographic relation to where the case 
in chief is being litigated. (10 minutes)
    4. Hudson (NC), Abraham (LA), Harris (MD), Roe (TN), 
Marshall (KS), Bucshon (IN), DesJarlais (TN): Allows a 
physician to apologize to a patient for an unintended outcome 
without having the apology count against them in the court of 
law. Defers to the state law where ``sorry provisions'' are 
already in statute. Requires a plaintiff to provide a notice of 
intent to the physician 90 days before the lawsuit is filed. 
Defers to state laws that directly address Notices of Intent. 
Requires a plaintiff to have a physician in the same specialty 
as the defendant physician to sign an affidavit certifying the 
merits of the case before the lawsuit could be brought to 
court. Defers to state laws that directly address Affidavits of 
Merit. Requires that for any ``expert witness'' called to 
testify during trial, the witness would need to meet the same 
licensing requirements as the defendant physician. Defers to 
state laws that directly address Expert Witness Qualifications. 
(10 minutes)
    5. Barr (KY): Gives affirmative defense to defendants in 
health care liability cases if they can show they complied with 
clinical practice guidelines. (10 minutes)

                    TEXT OF AMENDMENTS MADE IN ORDER

 1. An Amendment To Be Offered by Representative Sessions of Texas or 
                 His Designee, Debatable for 10 Minutes

  Page 1, strike line 7 and all that follows through page 2, 
line 18 and insert the following:

  (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.
                              ----------                              


2. An Amendment To Be Offered by Representative Burgess of Texas or His 
                   Designee, Debatable for 10 Minutes

  Page 12, line 13, insert after ``goods or services'' the 
following: ``(including safety, professional, or administrative 
services directly related to health care)''.
                              ----------                              


3. An Amendment To Be Offered by Representative Roe of Tennessee or His 
                   Designee, Debatable for 10 Minutes

  Add, at the end of the bill, the following (and amend the 
table of contents accordingly):

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.
                              ----------                              


    4. An Amendment To Be Offered by Representative Hudson of North 
           Carolina or His Designee, Debatable for 10 Minutes

  Add, at the end of the bill, the following:

SEC. 11. 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. 12. 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. 13. 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. 14. 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.
                              ----------                              


5. An Amendment To Be Offered by Representative Barr of Kentucky or His 
                   Designee, Debatable for 10 Minutes

  Add, at the end of the bill, the following (and amend the 
table of contents accordingly):

SEC. 11. AFFIRMATIVE DEFENSE.

  (a) In General.--In the case of a health care lawsuit, it 
shall be an affirmative defense to any health care liability 
claim alleged therein that the defendant complied with a 
clinical practice guideline that was established, published, 
maintained, and updated on a regular basis by an eligible 
professional organization and that is applicable to the 
provision or use of health care services or medical products 
for which the health care liability claim is brought.
  (b) Definitions.--For purposes of this section:
          (1) Clinical practice guideline.--The term ``clinical 
        practice guideline'' means systematically developed 
        statements based on the review of clinical evidence for 
        assisting a health care provider to determine the 
        appropriate health care in specific clinical 
        circumstances.
          (2) Eligible professional organization.--The term 
        ``eligible professional organization'' means a national 
        or State medical society or medical specialty society.

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