Medical Malpractice Rx Act

.

    Any ADR used to resolve a health care liability action or claim 
shall contain provisions relating to statute of limitations, 
noneconomic damages, joint and several liability, punitive damages, 
collateral source rule, periodic payments, and award of attorney's fees 
which are consistent with the provisions relating to such matters in 
this Act.

SEC. 7. DEFINITIONS.

    As used in this Act:
            (1) Actual damages.--The term ``actual damages'' means 
        damages awarded to pay for economic loss.
            (2) ADR.--The term ``ADR'' means an alternative dispute 
        resolution system established under Federal or State law that 
        provides for the resolution of health care liability claims in 
        a manner other than through health care liability actions.
            (3) Claimant.--The term ``claimant'' means any person who 
        brings a health care liability action and any person on whose 
        behalf such an action is brought. If such action is brought 
        through or on behalf of an estate, the term includes the 
        claimant's decedent. If such action is brought through or on 
        behalf of a minor or incompetent, the term includes the 
        claimant's legal guardian.
            (4) Clear and convincing evidence.--The term ``clear and 
        convincing evidence'' is that measure or degree of proof that 
        will produce in the mind of the trier of fact a firm belief or 
        conviction as to the truth of the allegations sought to be 
established. Such measure or degree of proof is more than that required 
under preponderance of the evidence but less than that required for 
proof beyond a reasonable doubt.
            (5) Collateral source payments.--The term ``collateral 
        source payments'' means any amount paid or reasonably likely to 
        be paid in the future to or on behalf of a claimant, or any 
        service, product, or other benefit provided or reasonably 
        likely to be provided in the future to or on behalf of a 
        claimant, as a result of an injury or wrongful death, pursuant 
        to--
                    (A) any State or Federal health, sickness, income-
                disability, accident or workers' compensation Act;
                    (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.
            (6) Drug.--The term ``drug'' has the meaning given such 
        term in section 201(g)(1) of the Federal Food, Drug, and 
        Cosmetic Act (21 U.S.C. 321(g)(1)).
            (7) Economic damages.--The term ``economic damages'' means 
        objectively verifiable monetary losses incurred as a result of 
        the provision of, use of, or payment for (or failure to 
        provide, use, or pay for) health care services or medical 
        products such as past and future medical expenses, loss of past 
        and future earnings, cost of obtaining domestic services, loss 
        of employment, loss due to death, burial costs, and loss of 
        business or employment opportunities.
            (8) Harm.--The term ``harm'' means any legally cognizable 
        wrong or injury for which punitive damages may be imposed.
            (9) Health benefit plan.--The term ``health benefit plan'' 
        means--
                    (A) a hospital or medical expense incurred policy 
                or certificate,
                    (B) a hospital or medical service plan contract,
                    (C) a health maintenance subscriber contract, or
                    (D) a Medicare+Choice product (offered under part C 
                of title XVIII of the Social Security Act),
        that provides benefits with respect to health care services.
            (10) Health care liability action.--The term ``health care 
        liability action'' means a civil action brought in a State or 
        Federal court or pursuant to alternative dispute resolution 
        against a health care provider, an entity which is obligated to 
        provide or pay for health benefits under any health benefit 
        plan (including any person or entity acting under a contract or 
        arrangement to provide or administer any health benefit), or 
        the manufacturer, distributor, supplier, marketer, promoter, or 
        seller of a medical product, in which the claimant alleges a 
        claim (including third party claims, cross claims, counter 
        claims, or contribution claims) based upon the provision of (or 
        the failure to provide or pay for) health care services or the 
        use of a medical product, regardless of the theory of liability 
        on which the claim is based or the number of plaintiffs, 
        defendants, or causes of action.
            (11) Health care liability claim.--The term ``health care 
        liability claim'' means a claim in which the claimant alleges 
        that injury was caused by the provision of (or the failure to 
        provide) health care services or medical products.
            (12) Health care provider.--The term ``health care 
        provider'' means any person that is engaged in the delivery of 
        health care services in a State and that is required by the 
        laws or regulations of the State to be licensed or certified by 
        the State to engage in the delivery of such services in the 
        State.
            (13) Health care service.--The term ``health care service'' 
        means any service for which payment may be made under a health 
        benefit plan including services related to the delivery or 
        administration of such service.
            (14) Medical product.--The term ``medical product'' means a 
        drug (as defined in section 201(g)(1)) of the Federal Food, 
        Drug, and Cosmetic Act (21 U.S.C. 321(g)(1)) or a medical 
        device (as defined in section 201(h)) of the Federal Food, 
        Drug, and Cosmetic Act (21 U.S.C. 321(h)), including any 
        component or raw material used in a drug or device but 
        excluding health care services.
            (15) Noneconomic damages.--The term ``noneconomic damages'' 
        means damages paid to an individual for pain and suffering, 
        inconvenience, emotional distress, mental anguish, loss of 
        consortium, injury to reputation, humiliation, and other 
        nonpecuniary losses.
            (16) Person.--The term ``person'' means any individual, 
        corporation, company, association, firm, partnership, society, 
        joint stock company, or any other entity, including any 
        governmental entity.
            (17) Prevailing party.--The term ``prevailing party'' means 
        a party to a health care liability action who obtains a final 
        judgment (other than by settlement) exclusive of interest on 
        all or a portion of the claims asserted during the litigation.
            (18) Product seller.--
                    (A) In general.--Subject to subparagraph (B), the 
                term ``product seller'' means a person who, in the 
                course of a business conducted for that purpose--
                            (i) sells, distributes, rents, leases, 
                        prepares, blends, packages, labels, or is 
                        otherwise involved in placing, a product in the 
                        stream of commerce, or
                            (ii) installs, repairs, or maintains the 
                        harm-causing aspect of a product.
                    (B) Exclusion.--Such term does not include--
                            (i) a seller or lessor of real property;
                            (ii) a provider of professional services in 
                        any case in which the sale or use of a product 
                        is incidental to the transaction and the 
                        essence of the transaction is the furnishing of 
                        judgment, skill, or services; or
                            (iii) any person who--
                                    (I) acts in only a financial 
                                capacity with respect to the sale of a 
                                product; or
                                    (II) leases a product under a lease 
                                arrangement in which the selection, 
                                possession, maintenance, and operation 
                                of the product are controlled by a 
                                person other than the lessor.
            (19) Punitive damages.--The term ``punitive damages'' means 
        damages awarded against any person not to compensate for actual 
        injury suffered, but to punish or deter such person or others 
        from engaging in similar behavior in the future.
            (20) State.--The term ``State'' means each of the several 
        States, the District of Columbia, Puerto Rico, the Virgin 
        Islands, Guam, American Samoa, the Northern Mariana Islands, 
        and any other territory or possession of the United States.

SEC. 8. EFFECTIVE DATE.

    This Act will apply to any health care liability action brought in 
a Federal or State court and to any health care liability claim subject 
to an ADR system, that is initiated on or after the date of enactment 
of this Act, except that any health care liability claim or action 
arising from an injury occurring prior to the date of enactment of this 
Act shall be governed by the applicable statute of limitations 
provisions in effect at the time the injury occurred.

Summary: Establishes a statute of limitations for health care liability actions of two years from the date on which the alleged injury was discovered or should reasonably have been discovered, but in no case more than five years after the date the alleged injury occurred. Makes a defendant in any health care liability action liable only for the amount of noneconomic damages attributable to such defendant in direct proportion to the defendant's share of fault or responsibility for the claimant's actual damages, as determined by the trier of fact. Limits total noneconomic damages for an injury to $250,000, regardless of the number of parties against whom the action is brought, or the number of actions. Requires for the award of punitive damages that the claimant establish by clear and convincing evidence that the harm suffered was the result of conduct: (1) specifically intended to cause harm. Or (2) manifesting a conscious, flagrant indifference to the rights or safety of others. Prohibits the award of punitive damages against a manufacturer or product seller of a drug or medical device which caused the claimant's harm where: (1) the drug or device was subject to premarket approval by the Food and Drug Administration (FDA) with respect to the safety of the formulation or performance of the aspect of such drug or device which caused the claimant's harm, or the adequacy of the packaging or labeling of such drug or device which caused the harm, and such drug, device, packaging, or labeling was approved by the Food and Drug Administration. Or (2) the drug is generally recognized as safe and effective pursuant to conditions established by the FDA and applicable regulations, including packaging and labeling regulations. Allows punitive damages in any case in which, before or after premarket approval: (1) the defendant intentionally and wrongfully withheld from or misrepresented to the FDA any information about the drug or device which was material and relevant to the harm suffered, and whose submission was required by the Federal Food, Drug, and Cosmetic Act or the Public Health Service Act. Or (2) the defendant made an illegal payment to an FDA official or employee for the purpose of securing or maintaining such approval. Prohibits punitive damages against a drug manufacturer or product seller in a health care liability action for harm alleged to relate to the adequacy of the packaging or labeling of a drug required by regulation to have tamper-resistant packaging, unless the court finds by clear and convincing evidence that such packaging or labeling is substantially out of compliance with such regulations. Permits periodic payments of any damages awarded for future economic and noneconomic loss exceeding $50,000. Permits defendants to introduce evidence of collateral source payments. Declares that no provider of collateral source payments shall recover, in a judgment or in a settlement, any amount against the claimant or receive any lien or credit against the claimant's recovery or be equitably or legally subrogated to the right of the claimant in a health care liability action. Entitles the prevailing party in an action to attorney's fees from the non-prevailing party, if: (1) the claimant seeks noneconomic damages in excess of $250,000 or three times the economic damages, whichever is less. And (2) the request for such damages in such amount is made before the determination of liability of one party or another by verdict or order of judgment. Prohibits the sum of the attorney's fees to which the prevailing party is entitled from exceeding the attorney's fees of the non-prevailing party. Authorizes a court to limit such fees if their amount is deemed unjust. Specifies limits to contingent fees. Declares that any ADR used to resolve a health care liability action or claim shall contain provisions for statute of limitations, noneconomic damages, joint and several liability, punitive damages, collateral source rule, periodic payments, and award of attorney's fees which are identical to the provisions of this Act.