Text: H.R.5690 — 111th Congress (2009-2010)All Bill Information (Except Text)

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Introduced in House (07/01/2010)


111th CONGRESS
2d Session
H. R. 5690

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, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES
July 1, 2010

Mr. Gingrey of Georgia (for himself, Mr. Fleming, Mr. Smith of Texas, Mr. Kline of Minnesota, Mr. Hall of Texas, Mr. Bilbray, Mr. Marchant, Mr. Bishop of Utah, Mr. Franks of Arizona, Mr. Rooney, Mr. Shadegg, Mr. Lee of New York, Mrs. McMorris Rodgers, Mrs. Blackburn, Mr. Roe of Tennessee, Mr. Kingston, Mr. Cole, Mr. Cassidy, Mr. Pitts, Mr. Westmoreland, Mr. Latta, Mr. Bonner, Mr. Linder, Mr. Boustany, Mr. Griffith, Mr. Tim Murphy of Pennsylvania, Mr. Bartlett, and Mr. Dent) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

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, and for other purposes.

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 “Meaningful End to Defensive Medicine & Aimless Lawsuits (MedMal) Act of 2010”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 2. Findings; purpose.

Sec. 3. Health care lawsuit statute of limitations.

Sec. 4. Early offer.

Sec. 5. Collateral source benefits.

Sec. 6. Benevolent gesture or admission of fault by a health care provider.

Sec. 7. Fair share rule.

Sec. 8. Punitive damages.

Sec. 9. Authorization of payment of future damages to claimants in health care lawsuits.

Sec. 10. Liability of health care providers for FDA-approved products.

Sec. 11. Expert Witness Standards.

Sec. 12. Protection of States’ rights and effect on other laws.

Sec. 13. Definitions.

Sec. 14. Applicability.

SEC. 2. Findings; purpose.

(a) Findings.—

(1) EFFECT ON HEALTH CARE ACCESS AND COSTS.—Congress finds that the United States civil justice system adversely affects patient access to health care services, the quality of patient care, and the cost-efficiency of health care because the health care liability system is costly, ineffective, and a deterrent to the sharing of information among health care professionals, which impedes efforts to improve patient safety and quality of care.

(2) EFFECT ON INTERSTATE COMMERCE.—Congress finds that—

(A) the health care and insurance industries affect interstate commerce; and

(B) the health care liability litigation systems throughout the United States affect interstate commerce by contributing to the high cost of health care and premiums for health care liability insurance purchased by health care system providers.

(3) EFFECT ON FEDERAL SPENDING.—Congress finds that the health care liability litigation systems throughout the United States have a significant effect on the amount, distribution, and use of Federal funds because of—

(A) the large number of individuals who receive health care benefits under programs operated or financed by the Federal Government;

(B) the large number of individuals who benefit because of the exclusion from Federal taxes of the amounts spent to provide them with health insurance benefits; and

(C) the large number of health care providers who provide items or services for which the Federal Government makes payments.

(b) Purpose.—It is the purpose of this Act to implement reasonable, comprehensive, and effective health care liability reforms designed to—

(1) improve the availability of health care services in cases in which health care lawsuits have been shown to be a factor in the decreased availability of services;

(2) reduce the incidence of “defensive medicine” and lower the cost of health care liability insurance, all of which contribute to the escalation of health care costs;

(3) ensure that persons with meritorious health care injury claims receive fair and adequate compensation, including reasonable noneconomic damages;

(4) improve the fairness and cost-effectiveness of our current health care liability system to resolve disputes over health care liability by reducing uncertainty in the amount of compensation provided to injured individuals; and

(5) increase the sharing of information in the health care system to reduce unintended injury and improve patient care.

SEC. 3. Health care lawsuit statute of limitations.

(a) Statute of limitations for health care lawsuit.—Except as provided under subsection (b), a health care lawsuit is barred unless it is commenced before the earlier of—

(1) the expiration of the 3-year period beginning on the date of manifestation of injury; or

(2) the expiration of the 1-year period beginning on the date on which the claimant discovers, or through the use of reasonable diligence should have discovered, the injury.

(b) Tolling of statute of limitations.—The statute of limitations under subsection (a) may be tolled for any of the following:

(1) Proof of fraud.

(2) Intentional concealment of information necessary for a claimant to file a health care lawsuit.

(3) The presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person that is related to the health care liability claim.

(c) Applicability.—This section shall not apply to any health care lawsuit arising from an injury occurring before the date of the enactment of this Act.

SEC. 4. Early offer.

(a) In general.—If a claimant rejects a qualified early offer from a defendant in a health care lawsuit, the amount of noneconomic damages that may be awarded against that defendant in the lawsuit may not exceed $350,000.

(b) Qualified early offer.—In this section, the term “qualified early offer” means, with respect to a health care lawsuit, a reasonable offer that—

(1) is made by a defendant to a claimant in order to settle the health care liability claim which is the subject of the lawsuit;

(2) provides for the periodic payment to the claimant of net economic damages as such damages accrue, for which the defendant is responsible, to the claimant, to the extent that such damages are not already covered by a collateral source;

(3) provides for payment of the reasonable attorney’s fees of the claimant;

(4) is made to the claimant not later than 180 days after the date such lawsuit is commenced; and

(5) allows the claimant to accept or reject such offer within 30 days after the date on which such offer is made.

(c) Calculation of award.—If a claimant rejects a qualified early offer from a defendant in a health care lawsuit—

(1) an award for noneconomic damages in excess of $350,000 shall be reduced to such amount 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; and

(2) in a case in which separate awards are rendered for past and future noneconomic damages, the future noneconomic damages shall be reduced first.

(d) Attorney’s fees.—If a qualified early offer is rejected and a judgment is subsequently entered against the offeree in that health care lawsuit, the offeree shall be liable for the attorney’s fees of the offeror.

(e) No jury notification.—If a claimant rejects a qualified early offer, the jury shall not be informed about the maximum award for noneconomic damages.

(f) Early offer evidence inadmissible.—In any health care lawsuit, a qualified early offer shall be inadmissible as evidence of admission of liability or as evidence of an admission against interest.

SEC. 5. Collateral source benefits.

(a) Evidence of collateral source benefits admissible.—In any health care lawsuit involving injury or wrongful death, a party may introduce evidence of collateral source benefits.

(b) Collateral source benefits introduced.—If a party elects to introduce evidence of collateral source benefits, an opposing party may introduce evidence of an amount paid or contributed or reasonably likely to be paid or contributed in the future by or on behalf of the opposing party in order to secure such collateral source benefits.

(c) Providers of collateral source benefits barred from recovery.—In any health care lawsuit involving injury or wrongful death, a provider of collateral source benefits may not—

(1) recover an amount against the claimant;

(2) receive a lien or credit against the claimant’s recovery; or

(3) be equitably or legally subrogated to the rights of the claimant.

(d) Recovery defined.—In this section, the term “recovery” means, with respect to a health care liability claim, the net sum recovered by a claimant 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, but does not include costs of health care incurred by the claimant or the charges for legal services of the claimant’s attorney.

(e) Applicability.—Subsection (c) shall not apply in the case of a collateral source benefit for which the Secretary of Health and Human Services or a State or local agency administering a State Medicaid plan may recover (or expect to recover) any payment made for such benefit pursuant to section 1862(b) (42 U.S.C. 1395y(b)) or section 1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social Security Act.

SEC. 6. Benevolent gesture or admission of fault by a health care provider.

(a) Evidence inadmissible.—In any health care lawsuit, a benevolent gesture or admission of fault that is made by a health care provider, or an employee of a health care provider, to the claimant, a relative of the claimant, or a representative of the claimant shall be inadmissible as evidence of admission of liability or as evidence of an admission against interest.

(b) Application of rule.—The rule established under subsection (a) applies to a benevolent gesture or admission of fault by a health care provider to a claimant or the claimant’s relative or representative (including any such gesture or admission made before the commencement of the health care lawsuit) regarding the claimant’s discomfort, pain, suffering, injury, or death, regardless of the cause, including the unanticipated outcome of any treatment, consultation, care, or service provided by such provider (or by the employees, agents, or contractors of such provider) or the omission of such treatment, consultation, care, or service.

(c) Applicability.—This section shall apply in all judicial proceedings commenced after the date of the enactment of this Act and, insofar as is just and practicable, in all judicial proceedings pending on such date of enactment.

(d) Definitions.—In this section:

(1) BENEVOLENT GESTURE.—The term “benevolent gesture” means any statement, affirmation, gesture, or conduct, including subsequent remedial or preventative measures, expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that relates solely to discomfort, pain, suffering, injury, or death as the result of the unanticipated outcome of medical care.

(2) RELATIVE.—The term “relative” means, with respect to a claimant, the claimant’s spouse, parent, stepparent, grandparent, child, stepchild, grandchild, brother, sister, half-brother, half-sister, spouse’s parents, or any other person who has a family-type relationship with the claimant.

(3) REPRESENTATIVE.—The term “representative” means a legal guardian, attorney, or an agent designated to make medical decisions under a power of attorney over health care matters, a health care representative who is authorized to make health care decisions for a principal under applicable law, a surrogate designated in an advance directive for health care, or any person recognized in law or custom as an agent.

(4) UNANTICIPATED OUTCOME.—The term “unanticipated outcome” means an outcome of a medical treatment or procedure, care, or service that differs from the expected or anticipated result.

SEC. 7. Fair share rule.

(a) Liability.—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.

(b) Allocation of damages.—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.

(c) Determination of responsibility.—For purposes of this section, the trier of fact shall determine the proportion of responsibility of each party for the claimant’s harm.

SEC. 8. Punitive damages.

(a) Punitive damages award.—Punitive damages may be awarded against a defendant in a health care lawsuit for a health care liability claim only if—

(1) otherwise permitted by applicable State or Federal law;

(2) it is proven by clear and convincing evidence that such defendant acted with malicious intent to injure the claimant, or that such defendant deliberately failed to avoid unnecessary injury that such defendant knew the claimant was substantially certain to suffer; and

(3) compensatory damages are awarded for such claim.

(b) Demand for punitive damages.—

(1) COMPLAINT.—A claimant may not file a demand for punitive damages in the original complaint for a health care lawsuit.

(2) AMENDED COMPLAINT.—A claimant may file an amended complaint for punitive damages if the court finds, after reviewing supporting and opposing affidavits or after a hearing, that the claimant has established by a substantial probability that the claimant will prevail on the claim for punitive damages.

(3) HEARING.—

(A) REQUEST FOR PUNITIVE DAMAGES HEARING.—At the request of any party in a health care lawsuit, the trier of fact shall consider in a separate hearing whether punitive damages are to be awarded and the amount of such award, using the factors listed under subsection (c).

(B) EVIDENCE INADMISSIBLE.—If a separate punitive damages hearing is requested, any evidence introduced at such hearing that is 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.

(c) Amount of Punitive Damages.—

(1) FACTORS CONSIDERED.—In determining the amount of punitive damages against a party in a health care lawsuit, the trier of fact shall consider, where applicable, only the following:

(A) The severity of the harm caused by the conduct of such party.

(B) The duration of the conduct or any concealment of conduct by such party.

(C) The profitability of the conduct to such party.

(D) The number of products sold or medical procedures rendered for compensation by such party that caused the harm complained of by the claimant.

(E) Any criminal penalties imposed on such party, as a result of the conduct complained of by the claimant.

(F) The amount of any civil fines assessed against such party as a result of the conduct complained of by the claimant.

(2) MAXIMUM AWARD.—The maximum amount of punitive damages that may be awarded in a health care lawsuit is $350,000 or two times the amount of economic damages awarded, whichever is greater.

(3) NO JURY NOTIFICATION.—The jury shall not be informed about the maximum award for punitive damages under paragraph (2).

(d) Malicious Intent To Injure.—In this section, the term “malicious intent to injure” means intentionally causing or attempting to cause physical injury other than providing health care goods or services.

SEC. 9. 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.

(b) Court guidance.—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.

(c) Applicability.—This section applies to all actions that have not been first set for trial or retrial before the effective date of this Act.

SEC. 10. Liability of health care providers for FDA-approved products.

(a) In general.—Except as provided in subsection (b), 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 may 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 involving such product that is brought against the manufacturer, distributor, or seller of such product.

(b) Consolidation of cases.—Nothing in subsection (a) prevents a court from consolidating cases involving health care providers and cases involving product liability claims against the manufacturer, distributor, or seller of a medical product.

SEC. 11. Expert Witness Standards.

(a) Requirements.—No individual shall be qualified to testify as an expert witness concerning issues of negligence in any health care lawsuit against a defendant unless such individual—

(1) except as required under subsection (b), is a health care professional who—

(A) is appropriately credentialed or licensed in 1 or more States to deliver health care services; and

(B) typically treats the diagnosis or condition or provides the type of treatment under review; and

(2) can demonstrate by competent evidence that, as a result of training, education, knowledge, and experience in the evaluation, diagnosis, and treatment of the disease or injury which is the subject matter of the lawsuit against the defendant, the individual was substantially familiar with applicable standards of care and practice as they relate to the act or omission which is the subject of the lawsuit on the date of the incident.

(b) Physician review.—In a health care lawsuit, if the claim of the plaintiff involved treatment that is recommended or provided by a physician (allopathic or osteopathic), an individual shall not be qualified to be an expert witness under this subsection with respect to issues of negligence concerning such treatment unless such individual is a physician.

(c) Specialties and subspecialties.—With respect to a lawsuit described in subsection (a), a court shall not permit an expert in one medical specialty or subspecialty to testify against a defendant in another medical specialty or subspecialty unless, in addition to a showing of substantial familiarity in accordance with subsection (a)(2), there is a showing that the standards of care and practice in the two specialty or subspecialty fields are similar.

(d) Limitation.—The limitations in this subsection shall not apply to expert witnesses testifying as to the degree or permanency of medical or physical impairment.

SEC. 12. Protection of States’ rights and effect on other laws.

(a) Preemption of State law.—The provisions governing health care lawsuits set forth in this Act preempt, subject to subsections (c) and (d), State law to the extent that State law prevents the application of any provisions of law established by this Act.

(b) Preemption of Federal law.—The provisions governing health care lawsuits set forth in this Act supersede chapters 161 and 171 of title 28, United States Code, to the extent that such chapters—

(1) provide for a greater amount of damages, 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) prohibit the introduction of evidence regarding collateral source benefits, or mandate or permit subrogation or a lien on collateral source benefits.

(c) Protection of States’ Rights and Other Laws.—

(1) IN GENERAL.—This Act shall not preempt or supersede any State or Federal law that imposes greater procedural or substantive protections (including any statute of limitations that expires sooner than statutes of limitations imposed in this Act) for health care providers and health care organizations from liability, loss, or damages than those provided by this Act, except as provided for under subsection (d)(1).

(2) APPLICABLE LAW.—Any issue that is not governed by any provision of law established by this Act shall be governed by otherwise applicable State or Federal law.

(d) State Flexibility and Federal law.—The provisions of this Act shall not be construed to preempt—

(1) any State law (whether effective before, on, or after the date of the enactment of this Act) that specifies a particular monetary amount of compensatory or punitive damages (or the total amount of damages) that may be awarded in a health care lawsuit, regardless of whether such monetary amount is greater or lesser than is provided for by this Act;

(2) any defense available to a party in a health care lawsuit under any other provision of State or Federal law; or

(3) any State law that provides for an alternative dispute resolution system.

(e) Vaccine Injury.—

(1) IN GENERAL.—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 that is in conflict with a rule of law of such title XXI shall not apply to such action.

(2) APPLICABLE PROVISIONS.—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 shall apply to such aspect of such action.

SEC. 13. Definitions.

In this Act:

(1) ALTERNATIVE DISPUTE RESOLUTION SYSTEM.—The term “alternative dispute resolution system” 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, and any person on whose behalf such a claim is asserted, whether such person is 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 a claimant, or any service, product, or other benefit provided or reasonably likely to be provided in the future to or on behalf of a 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; or

(D) any other publicly or privately funded program.

(4) COMPENSATORY DAMAGES.—The term “compensatory damages” means economic damages and noneconomic damages.

(5) ECONOMIC DAMAGES.—The term “economic damages” means objectively verifiable monetary losses incurred as a result of the provision of, use of, or payment for (or failure to provide, use, or pay for) health care services or medical products, such as past and future medical expenses, loss of past and future earnings, cost of obtaining domestic services, loss of employment, and loss of business or employment opportunities.

(6) HEALTH CARE GOODS OR SERVICES.—The term “health care goods or services” means any goods or services provided by a health care organization, a health care provider, or an individual working under the supervision of a health care provider, that relate to the diagnosis, prevention, or treatment of any human disease or impairment, or the assessment or care of the health of human beings.

(7) HEALTH CARE LAWSUIT.—The term “health care lawsuit”—

(A) means any health care liability claim affecting interstate commerce that is brought in a State or Federal court or pursuant to an alternative dispute resolution system; and

(B) does not include a claim or action that is based on criminal liability, that seeks civil fines or penalties paid to Federal, State, or local government, or that is grounded in antitrust.

(8) HEALTH CARE LIABILITY CLAIM.—The term “health care liability claim” means a demand by any person, whether or not pursuant to an alternative dispute resolution system, against a health care provider, health care organization, or the manufacturer, distributor, supplier, marketer, promoter, or seller of a medical product, including third-party claims, cross-claims, counterclaims, or contribution claims, that is based upon the provision of, use of, or payment for (or the failure to provide, use, or pay for) health care goods or services or any medical product, for injury or wrongful death, regardless of the number of plaintiffs, defendants, or other parties, or the number of causes of action.

(9) HEALTH CARE ORGANIZATION.—The term “health care organization”—

(A) means any person or entity that is obligated to provide or pay for health care goods or services under any health insurance plan; and

(B) includes any person or entity acting under a contract or arrangement with a health care organization to provide or administer any healthcare goods or services.

(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, or exempted from such requirement by other law or regulation.

(11) MEDICAL PRODUCT.—

(A) IN GENERAL.—The term “medical product” means a drug, device, or biological product intended for humans.

(B) ADDITIONAL DEFINITIONS.—For purposes of subparagraph (A):

(i) DRUG.—The term “drug” has the meaning given such term in section 201(g)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(g)(1)).

(ii) DEVICE.—The term “device” has the meaning given such term in section 201(h) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(h)).

(iii) BIOLOGICAL PRODUCT.—The term “biological product” has the meaning given such term in section 351(i) of the Public Health Service Act (42 U.S.C. 262(i)).

(12) MINOR.—The term “minor” means an individual who is less than 18 years of age.

(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.

(14) PUNITIVE DAMAGES.—The term “punitive damages”—

(A) 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; and

(B) does not include economic damages or noneconomic damages.

(15) STATE.—The term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, the Commonwealth of 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. 14. Applicability.

Except as otherwise provided, 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.