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115th Congress     }                                {   Rept. 115-55
                        HOUSE OF REPRESENTATIVES
 1st Session       }                                {          Part 1

======================================================================



 
                 PROTECTING ACCESS TO CARE ACT OF 2017

                                _______
                                

 March 22, 2017.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1215]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred 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, having considered the same, report favorably 
thereon with an amendment and recommend that the bill as 
amended do pass.

                                CONTENTS

                                                                   Page

The Amendment....................................................     2
Purpose and Summary..............................................     6
Background and Need for the Legislation..........................     6
Hearings.........................................................    16
Committee Consideration..........................................    16
Committee Votes..................................................    16
Committee Oversight Findings.....................................    28
New Budget Authority and Tax Expenditures........................    28
Congressional Budget Office Cost Estimate........................    28
Duplication of Federal Programs..................................    33
Disclosure of Directed Rule Makings..............................    33
Performance Goals and Objectives.................................    33
Advisory on Earmarks.............................................    33
Section-by-Section Analysis......................................    33
Dissenting Views.................................................    34

                             The Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

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. 2. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

  (a) Statute of Limitations.--The time for the commencement of a 
health care lawsuit shall be 3 years after the date 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 injury unless tolled for any of the 
following--
          (1) upon proof of fraud;
          (2) intentional concealment; or
          (3) the presence of a foreign body, which has no therapeutic 
        or diagnostic purpose or effect, in the person of the injured 
        person.
Actions by a minor shall be commenced within 3 years from the date of 
the injury except that actions by a minor under the full age of 6 years 
shall be commenced within 3 years of injury, 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 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.

                          Purpose and Summary

    The Protecting Access to Care Act's reforms are premised on 
the need to provide checks and balances on otherwise unlimited 
lawsuits that increase the cost of health care and limit the 
availability of doctors nationwide. The Protecting Access to 
Care Act also contains an explicit Federal nexus: the bill's 
reforms only apply to lawsuits ``concerning the provision of 
[health care] goods or services for which coverage was provided 
in whole or in part via a Federal program, subsidy or tax 
benefit.'' Wherever Federal policy affects the distribution of 
health care, there is a clear Federal interest in reducing the 
costs of such Federal policies.
    The bill also includes provisions in each section that 
allow states to opt-out of each provision provided they have 
their own limits on non-economic damages in place (either 
higher or lower than that set out in the bill), or they have 
other limits that provide the same or greater protections as 
those provided for in the bill.

                Background and Need for the Legislation

    The Protecting Access to Care Act's reforms are necessary 
to help improve health care, make it more affordable, and save 
Federal taxpayer money while reducing the Federal debt. The 
Protecting Access to Care Act, modeled after California's 
decades-old and highly successful health care litigation 
reforms, would rein in unlimited lawsuits and thereby make 
health care delivery more accessible and cost-effective in the 
United States. California's Medical Injury Compensation Reform 
Act (``MICRA''), which was signed into law by Governor Jerry 
Brown in 1976, has proved immensely successful in increasing 
access to affordable medical care, and those proven reforms 
should be applied to contain costs in circumstances in which 
health care is provided through Federal programs and policies.
    MICRA's reforms, which have been the law in California for 
over 40 years, include a $250,000 cap on noneconomic damages, 
limits on the contingency fees lawyers can charge to maximize 
victim recoveries; and authorization for courts to require 
periodic payments for future damages instead of lump sum awards 
to prevent bankruptcies in which plaintiff's would receive only 
pennies on the dollar. The Protecting Access to Care Act also 
includes provisions creating a ``fair share'' rule, by which 
damages are allocated fairly, in direct proportion to fault. 
Finally, the Protecting Access to Care Act will accomplish 
reform without in any way limiting compensation for 100% of 
plaintiffs' economic losses (anything to which a receipt can be 
attached), including their medical costs, their lost wages, 
their future lost wages, rehabilitation costs, and any other 
economic out-of-pocket loss suffered as the result of a health 
care injury. And again, the Protecting Access to Care Act 
applies only to cases in which health care is provided through 
Federal programs and under Federal subsidies or tax benefits.

                 THE CONGRESSIONAL BUDGET OFFICE (CBO)

    The Congressional Budget Office (CBO) has concluded that 
the legal reform package in the Protecting Access to Care Act 
would reduce the Federal budget deficit by billions of dollars 
over the next 10 years. CBO recognizes that civil justice 
reforms also have an impact on the practice of ``defensive 
medicine.'' Defensive medicine occurs when doctors order more 
tests or procedures than are truly necessary just to protect 
themselves from lawsuits. Studies show that defensive medicine 
does not advance patient care or enhance a physician's 
diagnostic capabilities.
    According to one CBO report, ``CBO estimates that, under 
[these legal reforms], premiums for medical malpractice 
insurance ultimately would be an average of 25 percent to 30 
percent below what they would be under current law.''\1\ Lower 
health care lawsuit liability premiums would reduce health care 
costs for everyone and increase the supply of doctors. Further, 
CBO observed that an ``analysis [of these legal reforms] 
indicated that certain tort limitations, primarily caps on 
awards . . . effectively reduce average premiums for medical 
malpractice insurance.''\2\
---------------------------------------------------------------------------
    \1\Congressional Budget Office Cost Estimate of H.R. 4600 (the 
HEALTH Act) (September 24, 2002).
    \2\Id.
---------------------------------------------------------------------------
    By incorporating MICRA's time-tested reforms at the Federal 
level, the Protecting Access to Care Act will make medical 
malpractice insurance affordable again, encourage health care 
practitioners to maintain their practices, and reduce health 
care costs for patients. Its enactment will particularly help 
traditionally under-served rural and inner city communities, 
and women seeking obstetrics care.

               THE GOVERNMENT ACCOUNTABILITY OFFICE (GAO)

    The Government Accountability Office (GAO) found that 
rising litigation awards are responsible for skyrocketing 
medical professional liability premiums. The report stated that 
``GAO found that losses on medical malpractice claims--which 
make up the largest part of insurers' costs--appear to be the 
primary driver of rate increases in the long run . . .''\3\ GAO 
also concluded that insurer profits ``are not increasing, 
indicating that insurers are not charging and profiting from 
excessively high premium rates'' and that ``in most states the 
insurance regulators have the authority to deny premium rate 
increases they deem excessive.''\4\
---------------------------------------------------------------------------
    \3\General Accounting Office, ``Medical Malpractice Insurance,'' 
GAO-03-702 (June 2003) at ``Highlights,'' 4, and 25 (emphasis added).
    \4\Id. at 32.
---------------------------------------------------------------------------

                         REAGAN ADMINISTRATION

    President Ronald Reagan established a special task force to 
study the need for tort reform. That task force, called the 
Tort Policy Working Group, consisted of representatives of ten 
Reagan administration agencies and the White House. The final 
report of that task force concluded as follows: ``In sum, tort 
law appears to be a major cause of the insurance availability/
affordability crisis which the Federal Government can and 
should address in a variety of sensible and appropriate ways.'' 
Indeed, the Reagan task force specifically recommended 
``eliminate joint and several liability,''\5\ ``provide for 
periodic payments of future economic damages,'' \6\ ``schedule 
[limit] contingency fees'' \7\ of attorneys, and ``limit non-
economic damages to a fair and reasonable amount.''\8\ Indeed, 
regarding the limit on non-economic damages, the report 
concluded:
---------------------------------------------------------------------------
    \5\Report of the Tort Policy Working Group on the Causes, Extent 
and Policy Implications of the Current Crisis in Insurance Availability 
and Affordability (February 1986), at 64.
    \6\Id. at 69.
    \7\Id. at 72.
    \8\Id. at 66.

        Recommendation No. 4: Limit non-economic damages to
        a fair and reasonable amount.

        Non-economic damages such as pain and suffering, mental 
        anguish and punitive damages are inherently open-ended. 
        They are entirely subjective, and often defy 
        quantification . . . Moreover, because such damages are 
        essentially subjective, awards for similar injuries can 
        vary immensely from case to case, leading to highly 
        inequitable, lottery-like results. Accordingly, such 
        damages are particularly suitable for a specific 
        limitation.''\9\
---------------------------------------------------------------------------
    \9\Id. at 66.

All of these recommended reforms are part of the Protecting 
Access to Care Act.

     SUPPORT FOR THE PROTECTING ACCESS TO CARE ACT BY THE NATIONAL 
             COMMISSION ON FISCAL RESPONSIBILITY AND REFORM

    The National Commission on Fiscal Responsibility and Reform 
supports health care litigation reform in its final December 
2010 report. As the Commission states in a report that was 
endorsed by 61% of its members (by a vote of 11-7):

        Most experts agree that the current tort system in the 
        United States leads to an increase in health care 
        costs. This is true both because of direct costs--
        higher malpractice insurance premiums--and indirect 
        costs in the form of over-utilization of diagnostic and 
        related services (sometimes referred to as ``defensive 
        medicine''). The Commission recommends an aggressive 
        set of reforms to the tort system.

        Among the policies pursued, the following should be 
        included: . . . Imposing a statute of limitations--
        perhaps one to 3 years--on medical malpractice lawsuits 
        . . . Replacing joint-and-several liability with a 
        fair-share rule, under which a defendant in a lawsuit 
        would be liable only for the percentage of the final 
        award that was equal to his or her share of 
        responsibility for the injury . . .

        Many members of the Commission also believe that we 
        should impose statutory caps on . . . non-economic 
        damages, and we recommend that Congress consider this 
        approach and evaluate its impact.\10\
---------------------------------------------------------------------------
    \10\The National Commission on Fiscal Responsibility and Reform, 
``The Moment of Truth'' (December 2010) at 34-35.

    All these recommended reforms are included in the 
Protecting Access to Care Act.

          SUPPORT FOR HEALTH CARE LAWSUIT REFORM BY USA TODAY

    The USA Today editorial board came out supporting these 
Federal reforms, stating:

        A study . . . by the Massachusetts Medical Society 
        found that 83% of its doctors practice defensive 
        medicine at a cost of at least $1.4 billion a year. 
        Nationally, the cost is $60 billion-plus, according to 
        the Health and Human Services Department . . . The 
        liability system is too often a lottery. Excessive 
        compensation is awarded to some patients and little or 
        none to others. As much as 60% of awards are spent on 
        attorneys, expert witnesses and administrative expenses 
        . . . The current system is arbitrary, inefficient and 
        results in years of delay.\11\
---------------------------------------------------------------------------
    \11\USA Today editorial, ``Our View on `Defensive' Medicine: 
Lawyers' Bills Pile High, Driving Up Health Care Costs,'' USA Today 
(December 29, 2008).

    The editors of USA Today also concluded that ``one glaring 
omission [from Federal law] was significant tort reform, which 
was opposed by trial lawyers and their Democratic allies. CBO 
estimates that restricting malpractice suits would save $54 
billion over 10 years by curbing tests and procedures that 
patients don't really need. So why not add it?''\12\
---------------------------------------------------------------------------
    \12\USA Today editorial, ``Don't try to repeal the new health care 
law--improve it'' (November 18, 2010) at 9A.
---------------------------------------------------------------------------
    Enactment of the Protecting Access to Care Act will not 
result in more medical malpractice cases being brought in 
Federal court than would be brought in Federal court otherwise. 
The Supreme Court has held that a ``federal standard'' does not 
confer Federal question jurisdiction in the absence of 
Congressional creation of a Federal cause of action.\13\
---------------------------------------------------------------------------
    \13\See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813 
(1986).
---------------------------------------------------------------------------
    Finally, many State supreme courts have judicially 
nullified reasonable litigation management provisions enacted 
by State legislatures, many of which sought to address the 
crisis in medical professional liability that reduces patients' 
access to health care. Consequently, in such States, passage of 
Federal legislation by Congress may be the only means of 
addressing the States' medical professional liability regime 
and restoring patients' access to health care. Laws passed by 
States that have already provided for, or may in the future 
provide for, different limits on damages in health care 
lawsuits will be preserved under the Protecting Access to Care 
Act.

          THE HUGE COSTS OF DEFENSIVE MEDICINE ARE PASSED ON 
                          TO FEDERAL TAXPAYERS

    As reported in The Washington Post, ``U.S. health-care 
spending . . . is projected to accelerate over the next decade 
. . . [A] study, by the Centers for Medicare and Medicaid 
Services, projects that the average growth in health spending 
will be even faster between 2016 and 2025 . . . The projections 
are based on an assumption that the legislative status quo will 
prevail.''\14\
---------------------------------------------------------------------------
    \14\Carolyn Y. Johnson, ``Why America's Health-Care Spending Is 
Projected To Soar Over the Next Decade,'' Wash. Post (Feb. 15, 2017).
---------------------------------------------------------------------------
    As Nate Silver has pointed out in The New York Times: 
``[A]ll of the major categories of [federal] government 
spending have been increasing relative to inflation. But 
essentially all of the increase in spending relative to 
economic growth, and the potential tax base, has come from 
entitlement programs, and about half of that has come from 
health care entitlements specifically.''\15\
---------------------------------------------------------------------------
    \15\See https://fivethirtyeight.blogs.nytimes.com/2013/01/16/what-
is-driving-growth-in-
government-spending/?_r=2.
---------------------------------------------------------------------------
    As health care costs rise, wages fall, and the more 
companies must pay in health care costs, the less they can pay 
in wages. Just look at this chart published in the Journal of 
the American Medical Association.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    The top line shows the growth in health care costs. The 
bottom line shows the growth in wages. The chart shows that 
when health care cost growth slows, wages go up. But as health 
care cost growth increases, wages stagnate, and when health 
costs grew at a slower rate--as in the mid-2000's--wages 
rebounded again.
    If you want to increase wages, vote for this bill, because 
one of the drivers of higher health care spending is so-called 
``defensive medicine,'' a very real phenomenon confirmed by 
countless studies, in which health care workers conduct many 
additional costly tests and procedures with no medical value--
charged to Federal taxpayers--simply to avoid excessive 
litigation costs.
    A survey published in the Archives of Internal Medicine 
found that 91% of the over one thousand doctors surveyed 
``reported believing that physicians order more tests and 
procedures than needed to protect themselves from malpractice 
suits.'' The survey also asked ``Are protections against 
unwarranted malpractice lawsuits needed to decrease the 
unnecessary use of diagnostic tests?'' Overall, 91 percent of 
doctors surveyed agreed.\16\
---------------------------------------------------------------------------
    \16\See Tara F. Bishop, MD, Alex D. Federman, MD, MPH, Salomeh 
Keyhani, MD, MPH, ``Physicians' Views on Defensive Medicine: A National 
Survey'' Arch. Intern. Med. 2010; 170(12): 1081-1083.
---------------------------------------------------------------------------
    One Newsweek reporter described the personal experience of 
individual doctors this way:

        ``[T]ypical was [one doctor], who had a list as long as 
        my arm of procedures ER docs perform . . . for no 
        patient benefit. They include following a bedside 
        sonogram . . . with an ``official'' sonogram [because] 
        it's easier to defend yourself to a jury if you've 
        ordered the second one; a CT scan for every child who 
        bumped his or her head (to rule out things that can be 
        diagnosed just fine by observation); X-rays that do not 
        guide treatment, such as for a simple broken arm; CTs 
        for suspected appendicitis that has been perfectly well 
        diagnosed without it . . . [A]lthough doctors may hate 
        practicing defensive medicine, they do it so they don't 
        get sued . . . Nationwide, physicians estimate that 35 
        percent of diagnostic tests they ordered were to avoid 
        lawsuits, as were 19 percent of hospitalizations, 14 
        percent of prescriptions, and 8 percent of surgeries . 
        . . All told, it adds up to $650 billion in unnecessary 
        care every year . . . Another [ER doctor] said he 
        ordered 52 CT scans in one 12-hour shift: ``That's $104 
        thousand dollars in 1 day.''\17\
---------------------------------------------------------------------------
    \17\Sharon Begley, ``Block That CT Scan!--Despite the massive 
overhaul of health care passed by Congress, many costs will remain 
high, thanks to doctors' fears of potential lawsuits,'' Newsweek (March 
22, 2010).

    The most recent study, published a few months ago in the 
Journal of the American College of Radiology, studied the 
effects of tort reform on just radiographic tests alone and 
found that there were ``2.4 million to 2.7 million fewer 
radiographic tests annually attributed to tort reforms.'' Just 
imagine what savings would occur if such reforms were attached 
to all Federal health care programs, as this bill would do.

             REDUCING UNLIMITED LAWSUITS WILL HELP REDUCE 
                             MEDICAL ERRORS

    The best evidence about medical injuries comes from two 
large studies of hospital records, which both concluded that 
under one percent of hospital charts showed negligent medical 
injury.\18\ Nevertheless, the litigation reforms in the 
Protecting Access to Care Act will reduce the incidence of 
medical malpractice because the threat of potentially infinite 
liability in an unregulated tort system prevents doctors from 
discussing medical errors and looking for ways to improve the 
delivery of health care.
---------------------------------------------------------------------------
    \18\D. Mills, J. Boyden, and D. Rubsamen, ``Report on the Medical 
Insurance Feasibility Study,'' (San Francisco: Sutter Publications 
1977, sponsored jointly by the California Medical Association and 
California Hospital Association); A. Localio, A. Lawthers, T. Brennan, 
N. Laird, L. Hebert, L. Peterson, J. Newhouse, P. Weiler, and H. Hiatt, 
``Relation Between Malpractice Claims and Adverse Events Due to 
Negligence,'' New Engl. J. Med. 325:245-251 (1991).
---------------------------------------------------------------------------
    The Protecting Access to Care Act would largely dispel that 
fear and allow doctors to freely suggest improvements in 
medical care. The medical journal Annals of Medicine details 
reports of medical errors. As it has reported, ``[c]reating a 
series of articles on [medical] mistakes was the idea of Dr. 
Robert M. Wachter, associate chairman of the department of 
medicine at the University of California at San Francisco . . . 
The series was inspired in part by a 1999 report by the 
Institute of Medicine, which found that mistakes in hospitals 
killed 44,000 to 98,000 patients a year . . . In an editorial 
about the new series, Dr. Wachter and his colleagues wrote that 
the medical profession `for reasons that include liability 
issues . . . was not harnessing the full power of errors to 
teach [and thereby reduce errors].'''\19\
---------------------------------------------------------------------------
    \19\Denise Grady, ``Oops, Wrong Patient: Journal Takes on Medical 
Mistakes,'' The New York Times (June 18, 2002).
---------------------------------------------------------------------------
    A survey conducted for the bipartisan legal reform 
organization ``Common Good,'' whose Board of Advisors included 
former Senator George McGovern, Eric Holder, and former Senator 
Paul Simon, found that more than three-fourths of physicians 
feel that concern about malpractice litigation has hurt their 
ability to provide quality care in recent years. When 
physicians were asked, ``Generally speaking, how much do you 
think that fear of liability discourages medical professionals 
from openly discussing and thinking of ways to reduce medical 
errors?'' an astonishing 59% of physicians replied ``a 
lot.''\20\
---------------------------------------------------------------------------
    \20\See Harris Interactive, ``Common Good Fear of Litigation Study: 
The Impact of Medicine,'' Final Report (April 11, 2002) (``Executive 
Summary'') at 30 (Table 17), available at www.ourcommongood.com/
news.html.
---------------------------------------------------------------------------

            THE CURRENT SYSTEM IS CAUSING A DOCTOR SHORTAGE

    Lawsuit abuse drives doctors out of practice. There is a 
well-documented record of doctors leaving the practice of 
medicine and hospitals shutting down particular practices that 
have high liability exposure. This problem has been 
particularly acute in the fields of ob-gyn and trauma care, as 
well as in rural areas.\21\
---------------------------------------------------------------------------
    \21\For an extensive compilation of such instances see ``Addressing 
the New Health Care Crisis: Reforming the Medical Litigation System to 
Improve the Quality of Care,'' U.S. Department of Health and Human 
Services (March 3, 2003).
---------------------------------------------------------------------------
    The absence of doctors in vital practice areas is at best 
an inconvenience; at worst it can have deadly consequences.\22\ 
Hundreds or even thousands of patients may die annually due to 
lack of doctors.\23\
---------------------------------------------------------------------------
    \22\See Hearing on Patient Access Crisis: The Role of Medical 
Litigation Before S. Comm. on the Judiciary (2003) (testimony of Leanne 
Dyess); Hearing on Medical Liability Reform: Stopping the Skyrocketing 
Price of Health care Before H. Comm. on Small Business (2005) 
(testimony of Dr. Thomas Gleason).
    \23\See Testimony of Theodore Frank, ``Protecting Main Street from 
Lawsuit Abuse,'' Senate Republican Conference (March 16, 2009) (``The 
effect of the loss of productive doctors and the closing of emergency 
rooms . . . is in the hundreds of lives a year, and perhaps as high as 
1,000 deaths and many exacerbated injuries.''); ``Tort Reform and 
Accidental Deaths,'' Paul Rubin and Joanna Shepherd, Emory Law and 
Economics Research Paper No. 05-17H (finding tort reforms saved 
approximately 2,000 lives in the year 2000 and 24,000 over a 20-year 
period).
---------------------------------------------------------------------------
    According to the Massachusetts study, 38 percent of 
physicians have reduced the number of higher-risk procedures 
they provide, and 28 percent have reduced the number of higher-
risk patients they serve, out of fear of liability.\24\ The 
American College of Obstetricians and Gynecologists has 
concluded that the ``current medico-legal environment continues 
to deprive women of all ages, especially pregnant women, of 
their most educated and experienced women's health care 
providers.''\25\
---------------------------------------------------------------------------
    \24\``Defensive Medicine in Massachusetts,'' pp. 4-5.
    \25\``Overview of the 2009 ACOG Survey on Professional Liability.''
---------------------------------------------------------------------------
    As one doctor wrote:

        I am what you call a successful neurosurgeon, and I 
        have nothing against ``socialized medicine'' as such. 
        Everybody deserves good health care. But I am 
        nonetheless worried about President Obama's health care 
        reform, because without tort reform as part of the 
        package, it can't address the labor shortage we face in 
        my specialty. . . .

        Only because spinal problems affect nearly 80% of our 
        aging population: It's one of the most common reasons 
        patients visit a primary care physician, right behind 
        the yearly physical, the common cold, prenatal care and 
        anxiety-related disorders. Baby boomers are about to 
        overwhelm the system with demand for treatment of 
        spinal problems--including surgery--at precisely the 
        moment the supply of neurosurgeons able to treat them 
        is dwindling. . . .

        Thus we come to the second reason: the cost of 
        malpractice insurance, which creates a very high cost 
        of entry into this field. Unfortunately, the health 
        care reforms of the Obama administration have done 
        little to curb costs. These costs are imposed by 
        hospital inefficiencies as unpoliced by government-run 
        insurance plans and by the price of malpractice 
        insurance undisciplined by tort reform.

        I believe that tort reform is the key to reducing both 
        kinds of cost, because the malignant threat of 
        malpractice haunts the hospitals as well as the 
        physicians. Without such reform, the choice for 
        practicing neurosurgeons like me is between retirement 
        and working 24/7 just to cover my insurance overhead. 
        My premature retirement will reduce the supply of 
        surgeons capable of dealing with the spinal problems of 
        an aging population--and that supply is already short 
        and getting shorter. Meanwhile, a few more board-
        certified surgeons a year won't meet the growing 
        demand. The lines at your doctor's office could get 
        long.

        When Congress returns to consider the problem of health 
        care, it must understand that without tort reform, 
        neurosurgery of the kind I can provide to an aging 
        population will be unavailable.\26\
---------------------------------------------------------------------------
    \26\Dr. Michael Lavyne, ``Obamacare Will Fail Without Tort Reforn: 
Malpractice Insurance Costs Are Crippling Medicine,'' New York Daily 
News (November 19, 2010).

    A study from Northwestern University's Feinberg School of 
Medicine polled residents and found that many wish to leave the 
state to avoid its ``hostile'' malpractice environment. The 
study concluded that ``Approximately one-half of graduating 
Illinois residents and fellows are leaving the state to 
practice . . . [T]he medical malpractice liability environment 
is a major consideration for those that plan to leave Illinois 
to practice.''\27\ Without a uniform law to control health care 
costs, many states will continue to suffer under doctor 
shortages.
---------------------------------------------------------------------------
    \27\Northwestern University Feinberg School of Medicine, ``Illinois 
New Physician Workforce Study: Final Report November 2010) at 4.
---------------------------------------------------------------------------
    As one local New Jersey official has written:

        Let's say you are a woman over 40 who follows the 
        American Cancer Society guidelines (regardless of the 
        recent controversy about them) and faithfully gets a 
        mammogram each year.

        What would you do if you tried to make your 2010 
        appointment, only to learn this test is no longer 
        available anywhere in the state? Would you take a day 
        off from work to travel to Pennsylvania--or forgo your 
        screening entirely?

        Unfortunately, this is a very real possibility for New 
        Jersey women. Eighty-nine percent of radiologists 
        surveyed by the New Jersey Medical Care Availability 
        Task Force said that new doctors in their specialty are 
        unwilling to perform mammography or have asked for 
        limited exposure to it.

        Or, imagine getting pregnant and having your 
        obstetrician tell you that you fall into a high-risk 
        category. The good news is that you can be effectively 
        treated by a specialist. The bad news? The closest 
        specialist is in upstate New York. Do you leave your 
        family for days at a time? Do you take a risk and allow 
        your regular physician to do the best she can? This is 
        a decision no woman should have to make, but many may 
        face. Hospitals in New Jersey have reported a serious 
        decline in the number of applicants for specialized 
        obstetrics training--and no new candidates means 
        steadily decreasing access to care.

        Even as debate about national health care reform rages 
        across the country, we in New Jersey must confront a 
        homegrown crisis: Our state is losing doctors at an 
        alarming rate. With or without a Federal mandate, if 
        there are no doctors to treat New Jersey's patients, 
        the details don't matter.

        Why the exodus of physicians? To a significant degree, 
        they are fleeing malpractice insurance premiums and 
        legal exposure so enormous as to make the practice of 
        many medical specialties in our state near untenable.

        . . . Medical malpractice liability premiums had 
        already spiraled out of control back in 2002, when huge 
        crowds of physicians donned their white coats and 
        demonstrated at the Statehouse to draw attention to the 
        need for reform. Around the same time, Dr. Dolores 
        Williams, an obstetrician, testified before an Assembly 
        joint committee that her insurance premiums--which had 
        escalated from $30,000 to an estimated $72,000--left 
        her financially unable to continue delivering babies. 
        Her decision to stop, she said, ``was based on possibly 
        losing my home, my assets, [and] my ability to fund my 
        children's college tuition.''

        Seven years later, these problems have only gotten 
        worse, not only in obstetrics but in a range of other 
        specialties like orthopedics and neonatology.

        ``The cumulative effect of medical malpractice claims 
        on the health care system in New Jersey is alarming,'' 
        agrees Marcus Rayner, executive director of the New 
        Jersey Lawsuit Reform Alliance. ``Due to skyrocketing 
        medical malpractice insurance premiums and the threat 
        of a lawsuit, hospitals have fewer OB-GYNs willing to 
        work in emergency departments, and fewer specialty 
        physicians willing to work at all.''

        Five years ago, a survey of New Jersey's neurosurgeons 
        indicated that there were only 63 remaining in the 
        state--to serve a population of more than 8.5 million. 
        Someday it could be your teenager who suffers a head 
        injury in a sports or car accident, and urgently needs 
        the care of a neurosurgeon. What are the odds that one 
        would be available?\28\
---------------------------------------------------------------------------
    \28\Amy H. Handlin, ``Reduce Medical Liability Costs Before More 
Specialists Flee N.J.,'' New Jersey Times (November 22, 2009).

    It is clear that no doctor is safe from lawsuit abuse, but 
as studies have shown, some are more vulnerable to abusive 
litigation than others because of their specialty or the 
location of their practice. Today, one-third of orthopedists, 
trauma surgeons, ER doctors and plastic surgeons will probably 
be sued in any given year.\29\ Neurosurgeons face liability 
lawsuits more often--every 2 years on average.\30\
---------------------------------------------------------------------------
    \29\``Defending the Practice of Medicine,'' Richard E. Anderson, 
M.D., Archives of Internal Medicine, June 2004.
    \30\``Effective Legal Reform and the Malpractice Insurance 
Crisis,'' Richard E. Anderson, M.D., Yale Journal of Health Policy, Law 
and Ethics, December 2004.
---------------------------------------------------------------------------
    OB-GYN physicians are another favorite target of personal 
injury lawyers with nearly three out of five OB-GYNs sued at 
least twice in their careers. The American College of 
Obstetricians and Gynecologists (ACOG) 2009 Medical Liability 
Survey found nearly 91 percent of OB-GYNs surveyed had 
experienced at least one liability claim filed against them 
and, sadly we know most of the cases are without merit.\31\
---------------------------------------------------------------------------
    \31\American College of Obstetrics and Gynecologists Medical 
Liability Survey, 9/09.
---------------------------------------------------------------------------
    Three out of four emergency rooms say they have had to 
divert ambulances because of a shortage of specialists and more 
than 25 percent lost specialist coverage due to medical 
liability issues.\32\
---------------------------------------------------------------------------
    \32\Hospital Emergency Department Administration Survey, ``Federal 
Medical Liability Reform,'' 2004, the Schumacher Group, Alliance of 
Specialty Medicine, July 2005.
---------------------------------------------------------------------------
    One emergency room physician was quoted as saying, ``The 
lack of on-call specialists affects the numbers of patients 
referred to tertiary care facilities even for basic specialty 
related diseases (like orthopedics). This adds to emergency 
department crowding in some facilities, and it means that 
patients have to travel across town or greater distances for a 
relatively simple problem that could have been resolved if the 
specialist had been on call at the initial facility.''\33\
---------------------------------------------------------------------------
    \33\``National Report Card on the State of Emergency Medicine,'' 
American College of Emergency Physicians, 2009.
---------------------------------------------------------------------------
    The Association of American Medical Colleges (AAMC) has 
predicted that ``the shortage of physicians across all 
specialties will more than quadruple to almost 63,000.''\34\ 
Another group, the American Academy of Family Physicians, has 
projected the shortfall of family physicians will reach 149,000 
by 2020.\35\
---------------------------------------------------------------------------
    \34\Association of American Medical Colleges Center for Workforce 
Studies estimates, 9/30/10.
    \35\``Doctor Shortage Looms as Primary Care Loses it Pull,'' Janice 
Lloyd, USA Today, 8/18/09.
---------------------------------------------------------------------------

          THE PROTECTING ACCESS TO CARE ACT ALLOWS UNLIMITED 
                            ECONOMIC DAMAGES

    Nothing in the Protecting Access to Care Act denies injured 
plaintiffs the ability to obtain adequate redress, including 
compensation for 100% of their economic losses (essentially 
anything to which a receipt can be attached), including their 
medical costs, the costs of pain relief medication, their lost 
wages, their future lost wages, rehabilitation costs, and any 
other economic out-of-pocket loss suffered as the result of a 
health care injury. ``Economic damages'' include anything whose 
value can be quantified, including lost wages or home services 
(including lost services provided by stay-at-home mothers), 
medical costs, the costs of pain reducing drugs and lifetime 
rehabilitation care. Indeed, the terms ``noneconomic damages'' 
and ``pain and suffering damages'' (which the Federal 
legislation limits to $250,000 unless a state law provides for 
a higher or lower limit) are misnomers: only ``economic 
damages''--which the Federal legislation does not limit--can be 
used to pay for drugs and services that actually reduce pain.
    Cases from California show that reasonable legal reforms 
such as those in the Protecting Access to Care Act still allow 
for very large, multi-million dollar awards to deserving 
victims, including homemakers and children. For example, a 5-
year-old boy with cerebral palsy and quadriplegia was awarded 
$84 million in economic damages. A 3-year-old girl with 
cerebral palsy was awarded $59 million in economic damages. And 
a 30-year-old homemaker with brain damage was awarded $12 
million in economic damages.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
1215.

                        Committee Consideration

    On February 28, 2017, the Committee met in open session and 
ordered the bill H.R. 1215 favorably reported, with an 
amendment, by a rollcall vote of 18 to 17, a quorum being 
present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1215.
    1. An amendment offered by Mr. Conyers to exempt claims 
based on intentional tort liability from the bill. Defeated 12-
16.

                             ROLLCALL NO. 1
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................              X
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................              X
Mr. Gaetz (FL).................................              X
Mr. Johnson (LA)...............................
Mr. Biggs (AZ).................................
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................      X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................     12      16
------------------------------------------------------------------------


    2. An amendment offered by Mr. Cohen to exempt from the 
bill lawsuits concerning wrong-patient or wrong-site surgeries 
and foreign objects left inside body. Defeated 12-16.

                             ROLLCALL NO. 2
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................              X
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................              X
Mr. Gaetz (FL).................................
Mr. Johnson (LA)...............................
Mr. Biggs (AZ).................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................      X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................     12      16
------------------------------------------------------------------------


    3. An amendment offered by Mr. Johnson (GA) to exempt 
lawsuits concerning nursing homes or long-term care facilities 
from the bill. Defeated 13-15.

                             ROLLCALL NO. 3
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................              X
Mr. Gaetz (FL).................................
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................      X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................     13      15
------------------------------------------------------------------------


    4. An amendment offered by Mr. Johnson (GA) to exempt from 
the bill's preemption provision the preemption of any state 
constitutional provisions. Passed 16-15.

                             ROLLCALL NO. 4
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................      X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................              X
Mr. Gaetz (FL).................................
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................      X
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................      X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................     16      15
------------------------------------------------------------------------


    5. Motion to order the previous question. Passed 19-15.

                             ROLLCALL NO. 5
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................      X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................      X
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................      X
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Ms. Roby (AL)..................................      X
Mr. Gaetz (FL).................................      X
Mr. Johnson (LA)...............................      X
Mr. Biggs (AZ).................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Deutch (FL)................................              X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................              X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................              X
Mr. Swalwell (CA)..............................              X
Mr. Lieu (CA)..................................              X
Mr. Raskin (MD)................................              X
Ms. Jayapal (WA)...............................              X
Mr. Schneider (IL).............................              X
                                                ------------------------
    Total......................................     19      15
------------------------------------------------------------------------


    6. Motion to reconsider the Johnson Amendment. Passed 19-
15.

                             ROLLCALL NO. 6
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................      X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................      X
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................      X
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Ms. Roby (AL)..................................      X
Mr. Gaetz (FL).................................      X
Mr. Johnson (LA)...............................      X
Mr. Biggs (AZ).................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Deutch (FL)................................              X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................              X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................              X
Mr. Swalwell (CA)..............................              X
Mr. Lieu (CA)..................................              X
Mr. Raskin (MD)................................              X
Ms. Jayapal (WA)...............................              X
Mr. Schneider (IL).............................              X
                                                ------------------------
    Total......................................     19      15
------------------------------------------------------------------------


    7. Motion to order the previous question. Passed 18-16.

                             ROLLCALL NO. 7
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................      X
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................      X
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Ms. Roby (AL)..................................      X
Mr. Gaetz (FL).................................      X
Mr. Johnson (LA)...............................      X
Mr. Biggs (AZ).................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................              X
Mr. Deutch (FL)................................
Mr. Gutierrez (IL).............................              X
Ms. Bass (CA)..................................              X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................              X
Mr. Swalwell (CA)..............................              X
Mr. Lieu (CA)..................................              X
Mr. Raskin (MD)................................              X
Ms. Jayapal (WA)...............................              X
Mr. Schneider (IL).............................              X
                                                ------------------------
    Total......................................     18      16
------------------------------------------------------------------------


    8. An amendment offered by Mr. Johnson (GA) to exempt from 
the bill's preemption provision the preemption of any state 
constitutional provisions. Defeated 17-17.

                             ROLLCALL NO. 8
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................      X
Mr. Chaffetz (UT)..............................
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................              X
Mr. Gaetz (FL).................................              X
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................      X
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................      X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................     17      17
------------------------------------------------------------------------


    9. An amendment offered by Ms. Jackson Lee to exempt from 
the bill health care lawsuits alleging irreversible injury. 
Defeated 14-19.

                             ROLLCALL NO. 9
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................              X
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................              X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................              X
Mr. Gaetz (FL).................................              X
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................
Ms. Bass (CA)..................................      X
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................      X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................     14      19
------------------------------------------------------------------------


    10. An amendment offered by Mr. Swalwell to exempt from the 
bill lawsuits concerning faulty medical treatment for injuries 
resulting from sexual assault or rape. Defeated 13-17.

                             ROLLCALL NO. 10
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................              X
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................              X
Mr. Gaetz (FL).................................              X
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................
Mr. Johnson (GA)...............................      X
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................      X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................      X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................     13      17
------------------------------------------------------------------------


    11. An amendment by Mr. Raskin to strike the bill's ``fair 
share'' provision. Defeated 14-16.

                             ROLLCALL NO. 11
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................              X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................
Mr. Chabot (OH)................................              X
Mr. Issa (CA)..................................              X
Mr. King (IA)..................................              X
Mr. Franks (AZ)................................              X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................              X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................              X
Mr. Marino (PA)................................              X
Mr. Gowdy (SC).................................              X
Mr. Labrador (ID)..............................              X
Mr. Farenthold (TX)............................
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................              X
Mr. Ratcliffe (TX).............................              X
Ms. Roby (AL)..................................              X
Mr. Gaetz (FL).................................              X
Mr. Johnson (LA)...............................              X
Mr. Biggs (AZ).................................              X
 
Mr. Conyers, Jr. (MI), Ranking Member..........      X
Mr. Nadler (NY)................................      X
Ms. Lofgren (CA)...............................      X
Ms. Jackson Lee (TX)...........................      X
Mr. Cohen (TN).................................      X
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................      X
Mr. Gutierrez (IL).............................      X
Ms. Bass (CA)..................................
Mr. Richmond (LA)..............................
Mr. Jeffries (NY)..............................      X
Mr. Cicilline (RI).............................      X
Mr. Swalwell (CA)..............................      X
Mr. Lieu (CA)..................................      X
Mr. Raskin (MD)................................      X
Ms. Jayapal (WA)...............................      X
Mr. Schneider (IL).............................      X
                                                ------------------------
    Total......................................     14      16
------------------------------------------------------------------------


    12. An amendment in the nature of a substitute offered by 
Mr. King. Passed 18-16.

                             ROLLCALL NO. 12
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................
Mr. Chaffetz (UT)..............................      X
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Ms. Roby (AL)..................................      X
Mr. Gaetz (FL).................................      X
Mr. Johnson (LA)...............................      X
Mr. Biggs (AZ).................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Ms. Lofgren (CA)...............................              X
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................              X
Mr. Gutierrez (IL).............................              X
Ms. Bass (CA)..................................              X
Mr. Richmond (LA)..............................              X
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................              X
Mr. Swalwell (CA)..............................              X
Mr. Lieu (CA)..................................              X
Mr. Raskin (MD)................................              X
Ms. Jayapal (WA)...............................              X
Mr. Schneider (IL).............................              X
                                                ------------------------
    Total......................................     18      16
------------------------------------------------------------------------


    13. Final passage. Passed 18-17.

                             ROLLCALL NO. 13
------------------------------------------------------------------------
                                                  Ayes    Nays   Present
------------------------------------------------------------------------
Mr. Goodlatte (VA), Chairman...................      X
Mr. Sensenbrenner, Jr. (WI)....................
Mr. Smith (TX).................................      X
Mr. Chabot (OH)................................      X
Mr. Issa (CA)..................................      X
Mr. King (IA)..................................      X
Mr. Franks (AZ)................................      X
Mr. Gohmert (TX)...............................
Mr. Jordan (OH)................................      X
Mr. Poe (TX)...................................              X
Mr. Chaffetz (UT)..............................      X
Mr. Marino (PA)................................      X
Mr. Gowdy (SC).................................      X
Mr. Labrador (ID)..............................      X
Mr. Farenthold (TX)............................      X
Mr. Collins (GA)...............................
Mr. DeSantis (FL)..............................
Mr. Buck (CO)..................................      X
Mr. Ratcliffe (TX).............................      X
Ms. Roby (AL)..................................      X
Mr. Gaetz (FL).................................      X
Mr. Johnson (LA)...............................      X
Mr. Biggs (AZ).................................      X
 
Mr. Conyers, Jr. (MI), Ranking Member..........              X
Mr. Nadler (NY)................................              X
Ms. Lofgren (CA)...............................              X
Ms. Jackson Lee (TX)...........................              X
Mr. Cohen (TN).................................              X
Mr. Johnson (GA)...............................
Mr. Deutch (FL)................................              X
Mr. Gutierrez (IL).............................              X
Ms. Bass (CA)..................................              X
Mr. Richmond (LA)..............................              X
Mr. Jeffries (NY)..............................              X
Mr. Cicilline (RI).............................              X
Mr. Swalwell (CA)..............................              X
Mr. Lieu (CA)..................................              X
Mr. Raskin (MD)................................              X
Ms. Jayapal (WA)...............................              X
Mr. Schneider (IL).............................              X
                                                ------------------------
    Total......................................     18      17
------------------------------------------------------------------------


                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 1215, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 22, 2017.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1215, the 
``Protecting Access to Care Act of 2017.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lara 
Robillard, who can be reached at 226-9010.
            Sincerely,
                                             Mark P. Hadley
                                            for Keith Hall,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




           H.R. 1215--Protecting Access to Care Act of 2017.

      As ordered reported by the House Committee on the Judiciary 
                         on February 28, 2017.




                                SUMMARY

    H.R. 1215 would impose limits on medical malpractice 
litigation in state and Federal courts by capping awards and 
attorney fees, modifying the statute of limitations, and 
eliminating joint and several liability.
    CBO expects that enacting H.R. 1215 would, on balance, 
lower costs for health care both directly and indirectly: 
directly, by lowering premiums for medical liability insurance; 
and indirectly, by reducing the use of health care services 
prescribed by providers when faced with less pressure from 
potential malpractice suits. Those reductions in costs would, 
in turn, lead to lower spending in Federal health programs and 
to lower premiums for private health insurance.
    In total, CBO and the staff of the Joint Committee on 
Taxation (JCT) estimate that enacting the legislation would 
reduce deficits by about $14 billion over the 2017-2022 period, 
and almost $50 billion over the 2017-2027 period. Off-budget 
revenues account for about $2 billion of that reduction. CBO 
estimates that implementing the legislation would reduce 
discretionary costs by about $1.5 billion over the 2017-2027 
period, assuming appropriations actions consistent with the 
legislation.
    CBO estimates that enacting the legislation would not 
increase net direct spending or on-budget deficits in any of 
the four consecutive 10-year periods beginning in 2028.
    H.R. 1215 would preempt state laws governing health care 
lawsuits in the areas of statutes of limitation, joint and 
several liability, product liability, and contingency fees. 
Those preemptions would be intergovernmental mandates as 
defined in the Unfunded Mandates Reform Act (UMRA). The bill 
also would require courts (including state courts) to direct 
periodic payments of damages in some circumstances. CBO 
estimates that the costs of complying with those mandates would 
be insignificant and well below the threshold established in 
UMRA ($78 million in 2017, as adjusted for inflation).
    This bill would impose private-sector mandates as defined 
in UMRA, on plaintiffs who file medical malpractice claims or 
medical product liability claims and on attorneys. CBO 
estimates that the aggregate cost of the mandates would exceed 
the annual threshold established in UMRA for private-sector 
mandates ($156 million in 2017, adjusted annually for 
inflation) in at least four of the first five years the 
mandates are in effect.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of the legislation is shown 
in the following table. The spending effects of this 
legislation fall within multiple budget functions, primarily 
functions 550 (health) and 570 (Medicare).
    These estimates are based on CBO's assumption that the 
legislation will be enacted near the beginning of fiscal year 
2018. Assuming an earlier enactment date would not change CBO's 
estimate of the budgetary effects of the legislation.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                           BASIS OF ESTIMATE

    The legislation would establish:

         LA 3-year statute of limitations for medical 
        malpractice claims, with certain exceptions, from the 
        date of an injury;

         LA cap of $250,000 on awards for noneconomic 
        damages;

         LReplacement of joint-and-several liability 
        with a fair-share rule, under which a defendant in a 
        lawsuit would be liable only for the percentage of the 
        final award that was equal to his or her share of 
        responsibility for the injury;

         LSliding-scale limits on the contingency fees 
        that lawyers can charge; and

         LA safe harbor from product liability 
        litigation for health care providers who prescribe or 
        dispense products approved by the Food and Drug 
        Administration.

    Over the 2017-2027 period, CBO and the staff of the Joint 
Committee on Taxation estimate that enacting the legislation 
would reduce direct spending by about $44 billion and increase 
Federal revenues by about $6 billion. The combined effect of 
those changes would be to reduce Federal deficits by almost $50 
billion over that period.
    In addition, CBO estimates that implementing the 
legislation would reduce discretionary costs for the Federal 
Employees Health Benefits (FEHB) program, Department of Defense 
(DoD), and Department of Veterans Affairs (VA) by about $1.5 
billion over the 2017-2027 period.
Effects on National Spending for Health Care
    CBO reviewed recent research on the effects of proposals to 
limit costs related to medical malpractice (``tort reform''), 
and estimates that enacting the legislation would reduce 
national health spending by about 0.4 percent.\1\ That figure 
comprises a direct reduction in spending for medical liability 
premiums and an additional indirect reduction from slightly 
less utilization of health care services. CBO's estimate takes 
into account the fact that, because many states have already 
implemented some elements of the legislation, a significant 
fraction of the potential cost savings has already been 
realized. Moreover, the estimate assumes that the spending 
reduction of about 0.4 percent would be phased in over a period 
of four years, as providers gradually change their practice 
patterns.
---------------------------------------------------------------------------
    \1\See Congressional Budget Office, letter to the Honorable Orrin 
G. Hatch regarding CBO's Analysis of the Effects of Proposals to Limit 
Costs Related to Medical Malpractice, (October 9, 2009). http://
www.cbo.gov/ftpdocs/106xx/doc10641/10-09-Tort_Reform.pdf. The estimated 
effect on national health spending reported in that letter is different 
from the estimated effect for this legislation because the two 
proposals would impose different limits on medical malpractice 
litigation.
---------------------------------------------------------------------------
Direct Spending
    Consistent with CBO's estimate of the bill's effect on 
national health spending, we estimate that enacting the 
legislation would reduce Federal direct spending by about 0.4 
percent for Medicare, Medicaid, FEHB, DoD's TRICARE-for-Life 
program, and subsidies for enrollees in health insurance 
marketplaces. Those reductions would total roughly $44 billion 
over the 2017-2027 period.
Revenues
    Much of private-sector health care is paid for through 
employment-based insurance, which represents nontaxable 
compensation. In addition, since 2014, refundable tax credits 
have been available to certain individuals and families to 
subsidize health insurance purchased through health insurance 
marketplaces. (The portion of those tax credits that exceed 
taxpayers' liabilities are classified as outlays, while the 
portions that reduce taxpayers' liabilities are recorded as 
reductions in revenues.)
    Lower costs for health care arising from enactment of the 
legislation would lead to an increase in taxable compensation 
and a reduction in subsidies for health insurance purchased 
through a marketplace. Conversely, the limitation on attorney's 
fees would slightly reduce taxable income, causing a loss of 
revenues. In the first year, that revenue loss would exceed the 
gains from other increases in compensation. The net effect of 
those changes would be to increase Federal tax revenues by an 
estimated $5.9 billion over the 2017-2027 period, according to 
estimates by JCT. Social Security payroll taxes, which are off-
budget, account for $1.9 billion of that increase in revenues.
Spending Subject to Appropriation
    CBO estimates that implementing the legislation also would 
reduce Federal costs for health insurance for Federal employees 
covered through the FEHB program by about 0.4 percent and would 
thus reduce costs for health insurance and health care services 
paid for by the Departments of Defense and Veterans Affairs. In 
CBO's estimation, the cost of health insurance and health care 
services funded through appropriation acts would be reduced by 
$1.5 billion over the 2017-2027 period, assuming appropriation 
actions consistent with the legislation.

        ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

    H.R. 1215 would preempt state laws governing health care 
lawsuits in the areas of statutes of limitation, joint and 
several liability, product liability, and contingent fees. 
Those preemptions would be intergovernmental mandates as 
defined by UMRA. Although the preemptions would limit the 
application of state laws, they would impose no duty on states 
that would result in additional spending or a loss of revenues. 
The bill also would require courts (including state courts) to 
direct periodic payments of damages in some circumstances. That 
intergovernmental mandate would place administrative 
responsibilities on court officials, but CBO estimates that the 
costs would be insignificant and well below the threshold 
established in UMRA ($78 million in 2017, as adjusted for 
inflation).

                 ESTIMATED IMPACT ON THE PRIVATE SECTOR

    H.R. 1215 contains private-sector mandates as defined in 
UMRA on plaintiffs and their attorneys in medical malpractice 
claims. By establishing a cap on noneconomic damages in medical 
malpractice claims, the bill would impose a mandate on 
plaintiffs as it would limit their ability to recover the 
entire amount of compensatory damages that could be collected 
under current law. Additionally, by imposing a cap on fees for 
attorneys representing plaintiffs in medical malpractice claims 
the bill would impose a mandate because it would restrict 
amounts that attorneys might otherwise be able to collect from 
their clients. The bill also would impose a mandate on 
plaintiffs who file medical product liability claims. Such 
claims may allege an injury caused by a defective or dangerous 
medical product (a drug, device, or biological product). The 
bill would eliminate a right to file such claims against health 
care providers by exempting those providers from liability if 
they prescribe or dispense a medical product that is approved 
by the Food and Drug Administration. Eliminating an existing 
right of action is a mandate on plaintiffs because their right 
to seek redress and recover damages is restricted or lost. The 
cost of a mandate that restricts or eliminates an existing 
right of action is the value of forgone awards and settlements 
in such cases.
    CBO estimates the aggregate cost of the mandates in the 
bill would exceed the annual threshold established in UMRA for 
private-sector mandates ($156 million in 2017, adjusted 
annually for inflation) in four of the first five years the 
mandates are in effect. On the basis of evidence from studies 
on damages in malpractice cases, CBO estimates that the 
aggregate cost of the mandates would amount to more than $2.0 
billion over the 2018-2022 period.

                         ESTIMATE PREPARED BY:

Federal Costs: Lara Robillard and Anna Anderson-Cook
Revenues: Staff of the Joint Committee on Taxation
Impact on State, Local, and Tribal Governments: Zachary Byrum
Impact on the Private Sector: Amy Petz

                         ESTIMATE APPROVED BY:

Holly Harvey
Deputy Assistant Director for Budget Analysis

                    Duplication of Federal Programs

    No provision of H.R. 1215 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 1215 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
1215 is designed to lower health care costs and increase access 
to health care by placing reasonable limits on health care 
lawsuits.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1215 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short Title; Table of Contents. Section 1 sets 
forth the short title of the bill as the Protecting Access to 
Care Act and presents a table of contents.
    Sec. 2. Encouraging Speedy Resolution of Claims. Section 2 
provides for a 3-year statute of limitations with certain 
exceptions for minors, fraud, intentional concealment, and the 
presence of a foreign body. Preserves state laws that specify 
shorter statutes of limitations, a different period for the 
filing of lawsuits by a minor, triggers different time periods 
based on the date of alleged negligence, or establishes a 
statute of repose.
    Sec. 3. Compensating Patient Injury. Section 3 provides for 
a $250,000 cap on noneconomic damages and a ``fair share'' 
rule, by which damages are allocated fairly, in direct 
proportion to fault. Preserves any state law that provides for 
any other monetary amount for damages (whether higher or 
lower).
    Sec. 4. Maximizing Patient Recovery. Section 4 provides for 
sliding scale limits on the contingency fees lawyers can 
charge. Preserves state laws that provide for lesser recoveries 
by lawyers.
    Sec. 5. Authorization of Payments of Future Damages to 
Claimants in Health Care Lawsuits. Section 5 provides 
authorization for courts to require periodic payments for 
future damages exceeding $50,000. Preserves state laws that 
specify periodic payments at other amounts, or which mandate 
them.
    Sec. 6. Product Liability for Health Providers. Section 6 
includes a provision protecting pharmacists and doctors from 
being named in lawsuits for forum-shopping purposes.
    Sec. 7. Definitions. Restricts application of the bill to 
liability claims 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.
    Sec. 8. Effect on Other Laws. Section 8 provides this Act 
does not affect vaccine compensation programs under title XXI 
of the Public Health Service Act.
    Sec. 9. Rules of Construction. Section 9 makes clear that 
state laws governing issues not covered by the bill are 
preserved.
    Sec. 10. Effective Date. Section 10 provides the effective 
date of the Act.

                            Dissenting Views

    H.R. 1215, the ``Protecting Access to Care Act of 2017,'' 
will do little to protect Americans' access to safe and 
affordable health care. Instead, it will undermine the ability 
of victims of medical malpractice and defective medical 
products to be fully compensated for their injuries. It does 
this by imposing onerous restrictions on lawsuits against 
health care providers concerning their provision of health care 
goods or services, regardless of the merits of a case, the 
misconduct at issue, or the severity of the victim's injury. By 
imposing these one-size-fits-all Federal standards on 
traditionally state court proceedings, H.R. 1215 would also 
trample states' rights. The Committee has considered similar 
so-called medical malpractice reforms on 11 prior occasions 
going back to 1995 and, like the prior iterations of this bill, 
H.R. 1215 raises the same core issues of fairness and 
federalism with little regard for the consequences.
    H.R. 1215 is highly problematic for many reasons. To begin 
with, it intrudes deeply on state sovereignty by preempting 
several areas of tort law that traditionally have been governed 
by the jurisprudence of each individual state or by state 
legislatures. Additionally, the bill's scope is broader than 
medical malpractice, potentially imposing new restrictions on 
claims concerning nursing home negligence and defective 
pharmaceuticals or medical devices. Further yet, H.R. 1215 
could prevent victims from having their day in court by 
providing unjustified immunity for health care providers who 
dispense defective or dangerous pharmaceuticals or medical 
devices, by instituting an extremely short statute of 
limitations period, and by imposing limitations on attorney 
contingent fee arrangements that will discourage lawyers from 
representing victims. Finally, H.R. 1215 imposes various 
requirements that will significantly diminish a victim's 
ability to be fully compensated for their injuries, including: 
(1) the elimination of joint and several liability with respect 
to claims for both economic and noneconomic damages, (2) an 
extremely low cap on noneconomic damages such as those for pain 
and suffering, which will particularly limit compensation for 
members of vulnerable groups like the poor, the elderly, 
children, women, and other groups who tend to have less in 
terms of lost wages or other economic loss, and (3) the 
allowance for periodic payments of future damages of $50,000 or 
more, which will put the risk of future loss on plaintiffs 
rather than defendants.
    In recognition of these significant concerns, a coalition 
of 30 consumer and public interest groups, including the Center 
for Justice and Democracy, Consumer Federation of America, 
National Association of Consumer Advocates, National Women's 
Health Network, and Public Citizen, oppose H.R. 1215 because it 
``would limit the legal rights of injured patients and families 
of those killed by negligent health care'' as well as those 
injured by ``unsafe drugs and nursing home abuse and 
neglect.''\1\ Similarly, Consumers Union opposes H.R. 1215 
because the bill ``would put patient safety at higher risk, by 
significantly undermining the accountability of those who 
provide patients with medical care.''\2\ In addition, the 
American Bar Association, in its opposition to the bill, 
observes that for ``200 years, the authority to determine 
medical liability law has rested in the states'' and that this 
``is a hallmark of the American justice system.''\3\
---------------------------------------------------------------------------
    \1\Letter from 30 consumer groups to Chairman Bob Goodlatte (R-VA) 
and Ranking Member John Conyers, Jr. (D-MI), H. Comm. on the Judiciary 
(Feb. 27, 2017) (on file with H. Comm. on the Judiciary Democratic 
Staff).
    \2\Letter from George P. Slover, Senior Policy Council, Consumers 
Union, to Members of the H. Comm. on the Judiciary (Feb. 27, 2017) (on 
file with H. Comm. on the Judiciary Democratic Staff).
    \3\Letter from Thomas M. Susman, Director of the Governmental 
Affairs Office, American Bar Association, to Chairman Bob Goodlatte (R-
VA) and Ranking Member John Conyers, Jr. (D-MI), H. Comm. on the 
Judiciary (Feb. 27, 2017) (on file with H. Comm. on the Judiciary 
Democratic Staff).
---------------------------------------------------------------------------
    For these reasons, and for those discussed below, we 
respectfully dissent from the Committee's report and oppose 
H.R. 1215.

                       DESCRIPTION AND BACKGROUND

                              DESCRIPTION

    H.R. 1215 would preempt state law generally to the extent 
that state laws are more protective than the bill's provisions 
of the rights of medical malpractice victims and the victims of 
defective medical products. It would replace such victim-
protective laws with new requirements and limitations that 
would restrict or undermine the ability of injured persons to 
be fully compensated for their injuries or even to have their 
claims heard in court. The following describes some of the 
bill's most troubling provisions.
    Section 10(a) sets forth the general rule that the bill's 
provisions preempt state law. It specifies that, except as 
otherwise provided in the bill, the legislation's provisions 
governing health care lawsuits preempt state law to the extent 
that state law prevents the application of any provisions of 
law established by or under this legislation. The bill at 
various points sets forth exceptions to this general preemption 
provision generally for state laws that are more restrictive 
for plaintiffs than the bill's provisions would be. Section 
10(c) specifies that no provision of this legislation may be 
construed to preempt any defense available to a party in a 
health care lawsuit under any provision of state or Federal 
law.
    The bill defines ``health care lawsuit'' to include not 
only medical malpractice claims, but also claims concerning 
medical products. Specifically, section 8(7) defines ``health 
care lawsuit'' to mean ``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.'' This definition appears to 
cover any claim arising from health care products or services 
paid for at least in part by programs such as Medicare, 
Medicaid, a subsidy under the Affordable Care Act (ACA),\4\ 
Veterans Administration-provided health care, or the Employee 
Retirement Income Security Act of 1974. Moreover, ``health care 
lawsuit'' includes lawsuits brought in state and Federal courts 
or pursuant to an alternative dispute resolution (ADR) system 
against a health care provider, regardless of the theory of 
liability, but does not include criminal liability, civil fines 
and penalties, or antitrust claims.
---------------------------------------------------------------------------
    \4\Pub. L. No. 111-148, 124 Stat. 119 (2010).
---------------------------------------------------------------------------
    The bill defines ``health care liability action'' as a 
civil action brought in state or Federal court or pursuant to 
an ADR system against a health care provider in which the 
plaintiff alleges a health care liability claim. ``Health care 
liability claim,'' in turn, is defined as ``a demand by any 
person, whether or not pursuant to ADR, against a health care 
provider . . . which [is] based upon the provision or use of 
(or the failure to provide or use) health care services or 
medical products.'' The bill defines ``health care provider'' 
as ``any person or entity required by law to be licensed, 
registered, or certified to provide health care services'' and 
defines ``health care services'' to mean ``the provision of any 
goods or services by a health care provider'' or any individual 
working under such person's supervision that relates to the 
diagnosis, prevention, or treatment of human disease or 
impairment or an assessment or care of human health. This 
definition is broad enough that it could include not just 
physicians and hospitals, but also nursing homes and long-term 
care facilities.
    Section 2 creates a statute of limitations for ``health 
care lawsuits.'' Claimants must commence a health care lawsuit 
within 3 years of the date of injury or within 1 year after the 
claimant discovers, or through the use of reasonable diligence 
should have discovered, the injury, whichever occurs first.
    Section 3 caps non-economic damages in ``health care 
lawsuits'' at $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. This 
section also eliminates joint and several liability in health 
care lawsuits for both economic and noneconomic damages claims. 
Joint and several liability means that where there are several 
defendants each is liable jointly with the others for the 
amount of the judgment against them, and that each is also 
individually liable for the full amount. In sum, the plaintiff 
can collect from any one of them or any group. By eliminating 
joint and several liability for health care lawsuits, each 
defendant would be liable only for that defendant's share of 
any damages and not for the share of any other person and each 
party is liable only for the amount of damages allocated to 
such party in direct proportion to such party's percentage of 
responsibility. When a judgment of liability is rendered as to 
any party, a separate judgment must be rendered against each 
such party for the amount allocated to such party.
    Section 4 places limitations on the amount of contingent 
fees that a plaintiff's lawyer may recover as compensation in a 
``health care lawsuit.'' In particular, section 4(a) provides 
that the total of all contingent fees for representing all 
claimants in a health care lawsuit must not exceed the 
following limits: (1) 40 percent of the first $50,000 recovered 
by the claimant(s); (2) 33\1/3\ percent of the next $50,000 
recovered by the claimant(s); (3) 25 percent of the next 
$500,000 recovered by the claimant(s); or (4) 15 percent of any 
amount by which the recovery by the claimant(s) is in excess of 
$600,000.
    Section 6 provides that where a claim for future damages of 
$50,000 or more is made against a party with sufficient 
insurance or other assets to fund a periodic payment of such a 
judgment, the court must, at the request of any party, enter a 
judgment order that the future damages be paid by periodic 
payments.
    Finally, section 7 provides complete immunity for health 
care providers who prescribe or dispense pursuant to a 
prescription a medical product ``approved, licensed, or cleared 
by the Food and Drug Administration'' in a product liability 
lawsuit involving such product and provides that health care 
providers shall not be liable to a plaintiff in a class action 
lawsuit against the manufacturer, distributor, or seller of 
such product.

                               BACKGROUND

    Every year, as many as 440,000 Americans die from 
preventable medical errors, making it the third leading cause 
of death.\5\ Even where death does not result from such errors, 
the injuries suffered by patients can be severe and permanent. 
In fact, there are 20 times as many serious, yet nonfatal, 
preventable injuries to patients. According to the National 
Patient Safety Foundation, ``The health care system continues 
to operate with a low degree of reliability, meaning that 
patients frequently experience harms that could have been 
prevented or mitigated.''\6\ Common medical errors include the 
40 surgeries per week in the United States performed on the 
wrong patient or the wrong body part,\7\ the average of more 
than 100 incidents per year of foreign objects being left 
inside patients,\8\ and failures to properly diagnose life-
threatening conditions like cancer or to prescribe proper 
medication.\9\ In addition to cases of medical errors are 
instances where a health care provider intentionally harms a 
patient, including cases where a provider rapes or sexually 
assaults a patient.
---------------------------------------------------------------------------
    \5\Marla Paul, How to Prevent 440,000 Yearly Deaths Due to Medical 
Errors, Northwestern Now, Nov. 16, 2016, available at https://
news.northwestern.edu/stories/2016/11/how-to-prevent-440000-yearly-
deaths-due-to-medical-errors.
    \6\National Patient Safety Foundation. Free from Harm: Accelerating 
Patient Safety Improvement Fifteen Years after To Err Is Human. 
National Patient Safety Foundation, 2015, available at http://
www.npsf.org/?page=freefromharm.
    \7\According to the American Association for Justice, there are 40 
wrong-patient or wrong-site procedures performed every week. American 
Ass'n for Justice, Medical Negligence: The Role of America's Civil 
Justice System in Protecting Patients' Rights (Feb. 2011) (citing Joint 
Commission Center for Transforming Healthcare, Wrong Site Surgery 
Project http://www.centerfortransforminghealthcare.org/projects/
display.aspx?projectid=4).
    \8\The Joint Commission, Sentinel Event Alert, Issue 51, Oct. 17, 
2013, available at https://www.jointcommission.org/assets/1/6/
SEA_51_URFOs_10_17_13_FINAL.pdf.
    \9\Failure to diagnose a disease and medication errors are the two 
most common bases for filing a medical malpractice lawsuit. Rachel 
Rettner, Failure to Diagnose Is No. 1 Reason for Suing Doctors, Live 
Science, Jul. 18, 2013, available at http://www.livescience.com/38289-
malpractice-claims-missed-diagnoses.html
---------------------------------------------------------------------------
    A medical malpractice claim is a tort-based legal claim for 
damages arising out of an injury caused by a health care 
provider. Tort claims are part of ``common law'' or judge-made 
law of the U.S. civil justice system and typically reserved to 
the states.\10\
---------------------------------------------------------------------------
    \10\``Tort law at present is almost exclusively state law rather 
than federal law [.]'' Federal Tort Reform Legislation: 
Constitutionality and Summaries of Selected Statutes, Congressional 
Research Service, Rep. No. 95-797A, at 1.
---------------------------------------------------------------------------
    Product liability actions are actions brought against the 
manufacturer or seller of a defective or dangerous product by a 
consumer who is injured as a result of that product. Like other 
areas of tort law, products liability is governed by state laws 
on negligence, breach of warranty, or strict liability.
    The tort system provides various benefits to society. 
First, it compensates victims who have been injured by the 
negligent conduct of others. Second, it deters future 
misconduct and carelessness that may cause injury and punishes 
wrongdoers who inflict such injury. Third, it prevents future 
injury by removing dangerous products and practices from the 
marketplace. Fourth, it informs an otherwise unknowing public 
of such harmful products or practices thereby expanding public 
health and safety.\11\
---------------------------------------------------------------------------
    \11\Joan Claybrook, Consumers and Tort Law, 34 Fed. B. News & J. 
127 (1987).
---------------------------------------------------------------------------
    Most medical malpractice claims are based on the tort of 
``negligence,'' defined as conduct ``which falls below the 
standard established by law for the protection of others 
against unreasonable risk and harm.''\12\ In medical 
malpractice cases, this legal standard is based on the 
practices of the medical profession,\13\ and is usually 
determined based on testimony of expert witnesses. As with 
other torts, remedies for medical malpractice may consist of: 
(1) compensatory damage awards for economic losses such as 
medical expenses, lost wages, pain and suffering, reduced life 
expectancy and diminished quality of life; and (2) punitive 
damages to punish and deter willful and wanton conduct.
---------------------------------------------------------------------------
    \12\Restatement (Second) of Torts Sec. 282 (1965).
    \13\David M. Harney, Medical Malpractice Sec. 21.2, at 413 (2d ed. 
1987).
---------------------------------------------------------------------------
    Medical malpractice liability insurance has historically 
attracted the attention of Congress during industry ``crisis'' 
periods, which occurred during the mid-1970's, the mid-1980's, 
and the early 2000's. These periods were all marked by 
increases in insurance premiums, difficulties in finding 
malpractice insurance for certain medical specialties, and 
reports of physicians leaving geographical areas or retiring to 
avoid insurance difficulties. Currently, the medical liability 
insurance market is not exhibiting crisis symptoms. Indeed, 
according to a 2016 article in a medical malpractice insurance 
industry trade publication, the ``medical professional 
liability insurance industry is continuing its unprecedented 
run of consecutive profitable years in 2016. Never before has 
the industry witnessed such an unbroken string of annual 
favorable results, many of which were very favorable.''\14\ 
That same publication, describing a survey of medical 
professional liability insurance rates, noted that for the 
``vast majority (75 percent) of [medical malpractice] insurers 
in the survey, rates have remained flat between 2015 and 
2016.''\15\
---------------------------------------------------------------------------
    \14\Paul Greve & Allison Milford, Do Still Waters Still Run Deep? 
Medical Professional Liability in 2016, Medical Liability Monitor, Vol. 
41, No. 10 (Oct. 2016).
    \15\Id. at 5.
---------------------------------------------------------------------------

                        CONCERNS WITH H.R. 1215

                I. H.R. 1215 VIOLATES STATE SOVEREIGNTY.

    H.R. 1215, like many so-called ``tort reform'' measures 
that the Committee has considered, represents a deep intrusion 
into state sovereignty. Although tort law is an area 
historically developed and shaped by the states, H.R. 1215 
raises broad federalism concerns as it preempts several areas 
of tort law that traditionally have been governed by the 
jurisprudence of each individual state or by state 
legislatures. The bill mandates that, with certain very limited 
and defendant-friendly exceptions, each of the bill's 
provisions ``governing health care lawsuits set forth in this 
Act preempt . . . State law to the extent that State law 
prevents the application of any provisions of law established 
by or under this Act.''\16\ In particular, H.R. 1215 preempts 
state law governing joint and several liability, the 
availability of damages, attorneys' fees, and periodic payments 
of future damages. In short, H.R. 1215 does nothing to address 
the fundamental concerns about states' rights raised by our 
Republican Committee colleagues as it intrudes just as deeply 
as its predecessor bills into areas traditionally determined by 
the states.
---------------------------------------------------------------------------
    \16\H.R. 1215, 115th Cong. Sec. 10(a) (2017) (as amended).
---------------------------------------------------------------------------
    As with previous versions of this legislation, many 
provisions of H.R. 1215 are written to be ``one-way 
preemptive''--that is, they only supersede state laws that are 
generally more favorable to victims, rather than preempting 
state law equally across the board. For instance, the bill does 
not preempt any defenses available to defendants under state 
law. In addition, H.R. 1215 leaves intact damage caps 
determined by states even if they exceed those in the bill, but 
would impose them on states lacking such damage caps. 
Similarly, the bill leaves in place state limitations periods 
that are shorter than those provided for in the bill, but not 
those that may be longer; state laws that provide for lower 
contingent fee payments to plaintiffs' attorneys, but not those 
that may authorize higher payments; and state laws that specify 
periodic payments for future damages at any amount other than 
$50,000, but not those state laws that prohibit periodic 
payments. This is true even though the absence of the 
defendant-protective features provided in H.R. 1215 represent a 
state judiciary's established legal precedents or the valid 
public policy choices made by a state's legislature.
    Examples of state provisions that H.R. 1215 would preempt 
include state constitutional provisions in Arizona, Arkansas, 
Kentucky, Pennsylvania, and Wyoming that prohibit caps on 
damages.\17\ In addition, 22 states' laws provide for some form 
of joint and several liability, which would be preempted by 
this bill.\18\ By applying a numerically specific sliding scale 
on contingent fee arrangements, the bill also preempts the law 
in 33 states and the District of Columbia that either do not 
have any specific statutory limits on attorneys' fees, require 
or allow a court to determine a ``reasonable'' fee award, leave 
attorney compensation arrangements entirely to the parties to 
determine, or impose a sliding scale with higher compensation 
limits than the bill provides.\19\
---------------------------------------------------------------------------
    \17\The relevant state constitutional provisions are Arizona 
(Article 2 sec. 31 and Article 18 sec. 6); Arkansas (Article 5, 
Sec. 32); Kentucky (Section 54); Pennsylvania (Article III sec. 18); 
and Wyoming (Section 97-10-004 (a)).
    \18\Alabama, Hawaii, Illinois, Indiana, Iowa, Maine, Maryland, 
Massachusetts, Minnesota, Missouri, Montana, Nebraska, New Hampshire, 
New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, 
South Carolina, South Dakota, and Virginia.
    \19\Alabama, Alaska, Arizona, Arkansas, Colorado, District of 
Columbia, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, 
Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, 
Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, 
Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South 
Dakota, Texas, Vermont, Virginia, Washington, and West Virginia.
---------------------------------------------------------------------------
    In light of the fact that H.R. 1215 fundamentally upends 
our Nation's Federal constitutional structure, Representative 
Hank Johnson (D-GA) offered an amendment that would have added 
a rule of construction requiring that the bill not be construed 
to preempt any state constitutional provision. In support of 
his amendment, Representative Johnson noted that ``the bill 
only overrides those [state] laws which are more protective of 
injured patients and families so that defendants . . . can gain 
an unfair advantage in courts''\20\ and that such ``sweeping 
preemption of state law . . . comes at the expense of 
individuals hurt by medical malpractice or dangerous products, 
as well as families suffering under the weight of crippling 
medical bills and lost wages caused by medical 
negligence.''\21\ The Committee initially adopted this 
amendment by a bipartisan 16 to 15 vote.\22\ In response to the 
adoption of this amendment, however, the Committee Majority 
proceeded to engage in a number of extraordinary procedural 
maneuvers to reconsider the amendment,\23\ cut off debate,\24\ 
and hold a second vote on whether to adopt this amendment.\25\ 
On the second vote, the Committee rejected the amendment by a 
tie vote of 17 to 17, notwithstanding continued bipartisan 
support in favor of adopting the amendment.\26\
---------------------------------------------------------------------------
    \20\Unofficial Tr. for Markup of H.R. 1215, the ``Protecting Access 
to Care Act of 2017,'' by the H. Comm. on the Judiciary, 115th Cong. 
105 (Feb. 28, 2017) [hereinafter ``Markup Tr.''], available at https://
judiciary.house.gov/wp-content/uploads/2017/02/2.28-Markup-
Transcript.pdf.
    \21\Id.
    \22\Id. at 119.
    \23\Id. at 132-36, 148.
    \24\Id. at 136, 142, 153, 158.
    \25\Id. at 158.
    \26\Id. at 164.
---------------------------------------------------------------------------

         II. H.R. 1215 APPLIES WELL BEYOND MEDICAL MALPRACTICE.

    H.R. 1215 makes sweeping changes to the ground rules for 
``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 enactment of this Act. . . .''\27\ 
The bill, in turn, defines a ``health care lawsuit'' as:
---------------------------------------------------------------------------
    \27\H.R. 1215, 115th Cong. Sec. 11 (2017) (as amended).

        any health care liability claim concerning the 
        provision of health care 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. . . .\28\
---------------------------------------------------------------------------
    \28\Id., Sec. 8(7).

Importantly, H.R. 1215 defines ``health care provider'' to 
include a person or entity licensed or certified to provide 
health care services, which could include hospitals, surgery 
centers, nursing homes, assisted living facilities, 
rehabilitation facilities, and insurance companies. Although it 
is often described as a ``medical malpractice'' measure, H.R. 
1215 is not limited to medical malpractice lawsuits because its 
health care lawsuit definition covers all ``health care 
liability claims,'' including claims based on the provision of 
medical products by a health care provider, and to ``any theory 
of liability on which the claim is based,'' including those 
based on actions taken by drug and medical device 
manufacturers, nursing homes, insurance companies, and health 
maintenance organizations.
    Finally, although H.R. 1215's proponents may assert the 
bill is narrower than its predecessors, it is, in fact, almost 
as broad. The definition of ``health care lawsuit'' attempts to 
limit the bill's scope to claims arising from Federal 
Government-subsidized health insurance programs, such as 
Medicare, Medicaid, the ACA, and veterans health plans. If 
anything, the addition of this language to the definition of 
``health care lawsuit'' means that the bill's onerous 
provisions would be particularly targeted at claims by the 
elderly, the poor, veterans, and other vulnerable groups, who 
disproportionately depend on government-subsidized health 
insurance.
    Given the bill's broad scope, including its potential 
application to claims for abuse or negligence against nursing 
homes and long-term care facilities, Representative Hank 
Johnson (D-GA) offered an amendment that would have exempted 
from H.R. 1215's unjustified and burdensome provisions all 
claims concerning nursing homes and long-term care facilities. 
The Committee, however, rejected this amendment by a party-line 
vote of 13 to 15.\29\
---------------------------------------------------------------------------
    \29\Markup Tr. at 101.
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  III. H.R. 1215 RESTRICTS HEALTH CARE LAWSUITS THAT WILL DIMINISH OR 
COMPLETELY BLOCK VICTIMS' ABILITY TO BE COMPENSATED FOR THEIR INJURIES.

A. LH.R. 1215 Provides Unjustifiable Immunity for Health Care Providers 
        Who Dispense Defective or Dangerous Pharmaceuticals or Medical 
        Devices.
    H.R. 1215 threatens to undermine the ability of victims of 
defective or dangerous medical products, including prescription 
pharmaceuticals and medical devices, to be made whole. The bill 
adds a new provision, not contained in previous iterations of 
this measure, that gives a complete liability shield for health 
care providers who provide defective or dangerous products to a 
plaintiff if such product was ``approved, licensed, or cleared 
by the Food and Drug Administration.''\30\ Specifically, this 
provision prohibits any health care provider from even being 
named in any lawsuit concerning the prescribing or dispensing 
of a drug or medical device under such circumstances. Moreover, 
a health care provider cannot be held liable in any product 
liability class action against a manufacturer of such defective 
or dangerous drug or medical device.
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    \30\H.R. 1215, 115th Cong. Sec. 7 (2017) (as amended).
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    This provision could prevent victims from receiving just 
compensation for injuries in many cases. For example, where the 
health care provider is also the manufacturer of the defective 
or dangerous product, such as in the case of certain 
pharmacists, the victim may be left without someone to sue for 
his or her injury. Similarly, where a manufacturer successfully 
shifts blame onto the provider for negligent dispensing or use 
of a drug or device, a victim may lose any access to 
restitution since she cannot sue the provider. This excessively 
broad liability shield for health care providers--which, 
effectively, could also provide legal protection for drug and 
device manufacturers--is both unjust and unjustifiable.
B. LH.R. 1215 Imposes an Excessively Short Statute of Limitations 
        Period.
    H.R. 1215 imposes an extremely restrictive statute of 
limitations for medical malpractice actions that significantly 
reduces the time that an injured person has to file a lawsuit. 
It provides that ``the time for the commencement of a health 
care lawsuit shall be no later than 3 years after the date of 
injury or 1 year after the claimant discovers, or through the 
use of reasonable diligence should have discovered, the injury, 
whichever occurs first.''\31\ The effect of this language is 
that a victim has, at most, 3 years, and as little as 1 year, 
to file suit.
---------------------------------------------------------------------------
    \31\Id., Sec. 2 (emphasis added).
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    Although disguised as a 3-year statute of limitations, the 
effect of this provision is that the claimant often has exactly 
1 year from the date of discovering the injury to file suit. A 
claimant will, quite often, ``discover'' an injury on the same 
day or shortly after an injury occurs. This provision also cuts 
in the opposite direction, hindering patients who are injured 
by diseases with long latency periods. For example, a patient 
who was infected with HIV through a negligent blood transfusion 
may not discover his injury until more than 3 years after the 
date of the injury because the symptoms of his injury may 
manifest more than 3 years after the negligent transfusion. To 
the extent that the bill's statute of limitations period is 
shorter than those currently available under state law, it 
works to deny victims their day in court.
C. LH.R. 1215 Makes It Harder for Victims To Obtain Adequate Legal 
        Representation.
    H.R. 1215 severely limits the amount an attorney may 
receive in the form of contingency fee payments. Contingency 
fee arrangements--where attorneys forgo immediate payment in 
exchange for a share of the damages if a plaintiff prevails in 
court--serve a useful and essential function in the legal 
system.\32\ Because contingency fee agreements require little 
or no money up front, injured plaintiffs who could not 
otherwise afford legal representation have access to counsel. 
In short, competent legal representation comes at a cost and 
H.R. 1215 would undermine the ability of plaintiffs to obtain 
such legal representation. Moreover, because attorneys who take 
losing cases are paid little or nothing for their efforts, 
contingency fees also serve as a screening mechanism for 
``frivolous'' cases.\33\
---------------------------------------------------------------------------
    \32\See Herbert M. Kritzer, Lawyer Fees and Lawyer Behavior in 
Litigation: What does the Empirical Literature Really Say?, 80 TEX. L. 
REV. 1943 (2002); Herbert M. Kritzer, Economic Policy Litigation 
Conference Seven Dogged Myths Concerning Contingency Fees, 80 WASH. U. 
L.Q. 739 (Fall 2002).
    \33\Id.
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    H.R. 1215 would sharply erode the incentives provided by 
contingency fee arrangements and threaten the ability of 
injured plaintiffs to obtain legal representation by capping 
the total amount of all contingent fees for representing all 
claimants in a health care lawsuit to: (1) 40 percent of the 
first $50,000 recovered by the claimant(s), (2) 33\1/3\ percent 
of the next $50,000 recovered by the claimant(s), (3) 25 
percent of the next $500,000 recovered by the claimant(s), and 
(4) 15 percent of any amount by which the recovery by the 
claimant(s) is in excess of $600,000. The bill also authorizes 
the courts to approve fees lower than those provided for by 
this formula in cases involving a minor or incompetent person. 
This provision is clearly intended to dis-incentivize lawyers 
from taking health care cases and thereby make it harder for 
plaintiffs to have their day in court.
D. LBy Eliminating Joint and Several Liability for Economic and 
        Noneconomic Damages, H.R. 1215 Makes It Very Difficult for 
        Victims in Health Care Lawsuits To Be Made Whole.
    H.R. 1215 eliminates joint and several liability for 
economic and noneconomic loss. Joint liability ensures that 
injured patients are fully compensated for their losses by 
allowing one lawsuit to be brought against multiple defendants 
and having the defendants apportion fault among them. The 
doctrine is designed to ensure that victims of wrongful conduct 
are able to recover the full amount of damages for their 
injuries, especially when one or more of the defendants is 
insolvent. Many states recognize joint and several liability 
based on the principle that it is the injured patient, rather 
than the multiple negligent providers, who rightly should be 
given the greatest measure of protection under the law. By 
eliminating joint and several liability, H.R. 1215 threatens 
the ability of plaintiffs to be made whole.
    Given the harm to victims that would result from 
eliminating joint and several liability, Representative Jamie 
Raskin (D-MD) offered an amendment to strike this provision 
from the bill. The Committee, however, rejected this amendment 
by a party-line vote of 14 to 16.\34\
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    \34\Markup Tr. at 199.
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E. LH.R. 1215 Unjustifiably Caps Noneconomic Damages, Which Will Have a 
        Disproportionately Adverse Impact on Women, the Poor, and Other 
        Vulnerable Groups.
    H.R. 1215 caps noneconomic damages at an aggregate amount 
of $250,000, regardless of the total number of defendants or 
claims brought with respect to the same injury. Noneconomic 
damages, such as those for pain and suffering and loss of 
consortium, compensate victims for real injuries such as the 
loss of sight, loss of a limb, severe disfigurement, and loss 
of fertility. As a result of such an extremely restrictive cap 
on noneconomic damages, many victims injured as a result of 
medical malpractice of defective medical products will be 
denied full compensation. Women, children, the poor, the 
elderly, and the disabled will be particularly hurt by H.R. 
1215's cap on noneconomic damages because they may have less 
substantial amounts of lost wages or other kinds of economic 
loss that must be documented for an award of economic damages.
    Representative Jerrold Nadler (D-NY) explained that he 
would have offered two amendments to increase this $250,000 
cap, a level that he noted was set more than 40 years ago in a 
California statute. One amendment would have indexed the 
$250,000 cap to inflation and the other would have increased 
the cap to reflect the present value of $250,000 in 1975 
dollars and then indexed that amount to inflation.\35\ In the 
interest of time, however, he did not offer these amendments.
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    \35\Id. at 63-64.
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F. LH.R. 1215 Inequitably Imposes the Risk of Loss on Victims Rather 
        than Wrongdoers.
    H.R. 1215 provides that, upon request of a party, payments 
of future damages--i.e., damages accrued after judgment, 
settlement, or resolution of the case--in excess of $50,000 may 
be made in periodic payments rather than a lump sum payment to 
victims. Periodic payment plans allow a negligent party to 
stall while the patient assumes the risk of loss. The defendant 
(or the defendant's insurance company) can, in the meantime, 
invest and earn interest on the compensation owed to the 
patient. If a defendant files for bankruptcy--or simply refuses 
to pay--it is the patient's responsibility to retain counsel 
and press the matter in court. This would be an unjust outcome.

  IV. H.R. 1215 PROVIDES NO EXCEPTIONS TO ITS ONEROUS PROVISIONS FOR 
  THOSE WHO HAVE SUFFERED EVEN THE MOST HORRIFIC INJURIES OR ARE THE 
               VICTIMS OF THE WORST KINDS OF MISCONDUCT.

    H.R. 1215's onerous requirements apply even in cases where 
a health care provider has intentionally harmed a patient or 
when the medical error is especially egregious. For instance, 
the bill's extremely low cap on noneconomic damages would 
likely prevent full compensation for a child who has been 
sexually molested by a health care provider, a woman who had a 
healthy breast removed after a misdiagnosis of breast cancer, 
or a low-income person who had the wrong leg amputated by a 
surgeon. The bill's other provisions would likewise make it far 
less likely that victims of such egregious medical misconduct 
will be fully compensated for their injuries or even have their 
day in court.
    For the foregoing reasons, Ranking Member John Conyers, Jr. 
(D-MI) offered an amendment that would have exempted from H.R. 
1215 all health care claims arising from an intentional tort. 
At a minimum, the bill's onerous provisions should not apply 
with respect to the most egregious kinds of conduct, such as 
rape, sexual assault, or other intentional harm caused by a 
health care provider. This amendment would have avoided the 
bill's many obstacles to justice for victims at least in cases 
where the underlying conduct was most serious and grave. 
Unfortunately, the Committee rejected this amendment by a 
party-line vote of 12 to 16.\36\
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    \36\Id. at 63.
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    Representative Sheila Jackson Lee (D-TX) offered an 
amendment that would have exempted from H.R. 1215 all cases 
concerning irreversible injury. At a minimum, victims of 
medical malpractice or defective medical products who suffer 
severe and permanent injury should be able to seek justice in 
court without the unnecessary and unjustified burdens imposed 
by this bill. Notwithstanding this concern, the Committee 
rejected this amendment by a party-line vote of 14 to 19.\37\
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    \37\Id. at 132.
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    Similarly, Constitution and Civil Justice Subcommittee 
Ranking Member Steve Cohen (D-TN) offered an amendment to 
exempt from H.R. 1215 all cases arising from a claim of wrong-
site, wrong-patient surgery or where a device had been left 
inside of a patient. As with the intentional tort exemption, 
this narrow amendment would have provided relief from the 
bill's onerous and unfair provisions for victims of 
particularly egregious medical errors, such as cases where the 
wrong body part had been amputated or where the wrong patient 
was operated on through the negligence of a health care 
provider. Notwithstanding these concerns, the Committee 
rejected this amendment by a party-line vote of 12 to 16.\38\
---------------------------------------------------------------------------
    \38\Id. at 87.
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    Finally, Representative Eric Swalwell (D-CA) offered an 
amendment to exempt from H.R. 1215 all cases concerning the 
provision of goods or services for treatment of an injury 
sustained by a rape or sexual assault victim as a result of 
such rape or sexual assault. This amendment would have 
protected victims of such horrific crimes from being further 
victimized by the bill's many hurdles to compensation for 
medical injuries. The Committee, however, rejected this 
amendment by a party-line vote of 13 to 17.\39\
---------------------------------------------------------------------------
    \39\Id. at 183.
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                               CONCLUSION

    While House Republicans appear to proffer H.R. 1215 as part 
of their effort to ``repeal and replace'' the ACA and that 
law's guarantee of adequate and affordable health insurance 
coverage for all Americans, the bill actually undermines those 
goals by heightening the risks of harm to patients and 
consumers of medical products. It does this by significantly 
undermining their ability to pursue a case in court and by 
imposing various restrictions on victims' ability to be fully 
compensated for their injuries, making it harder to hold 
wrongdoers accountable and to deter future misconduct. 
Additionally, the bill represents a deep intrusion into state 
sovereignty as state legislatures and state courts 
traditionally set the rules governing tort liability. For these 
reasons, and those articulated above, we strongly oppose H.R. 
1215.

                                   Mr. Conyers, Jr.
                                   Mr. Nadler.
                                   Ms. Lofgren.
                                   Ms. Jackson Lee.
                                   Mr. Cohen.
                                   Mr. Johnson, Jr.
                                   Mr. Deutch.
                                   Mr. Gutierrez.
                                   Ms. Bass.
                                   Mr. Richmond.
                                   Mr. Jeffries.
                                   Mr. Cicilline.
                                   Mr. Swalwell.
                                   Mr. Lieu.
                                   Mr. Raskin.
                                   Ms. Jayapal.

                                 [all]