99–006 

112TH CONGRESS REPT. 112–39 " ! HOUSE OF REPRESENTATIVES 1st Session Part 1 

HELP EFFICIENT, ACCESSIBLE, LOW-COST, 

TIMELY HEALTHCARE (HEALTH) ACT OF 2011 

MARCH 17, 2011.—Ordered to be printed 

Mr. SMITH of Texas, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS AND ADDITIONAL DISSENTING VIEWS 

[To accompany H.R. 5] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 5) 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, reports favorably thereon with an amendment 

and recommends that the bill as amended do pass. 

CONTENTS 

Page 

The Amendment ...................................................................................................... 2 

Purpose and Summary ............................................................................................ 7 

Background and Need for the Legislation ............................................................. 8 

Hearings ................................................................................................................... 63 

Committee Consideration ........................................................................................ 63 

Committee Votes ...................................................................................................... 63 

Committee Oversight Findings ............................................................................... 79 

New Budget Authority and Tax Expenditures ...................................................... 79 

Congressional Budget Office Cost Estimate .......................................................... 80 

Performance Goals and Objectives ......................................................................... 87 

Advisory on Earmarks ............................................................................................. 87 

Section-by-Section Analysis .................................................................................... 87 

Dissenting Views ..................................................................................................... 88 

Additional Dissenting Views ................................................................................... 119 


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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 ‘‘Help Efficient, Accessible, Lowcost, Timely Healthcare (HEALTH) Act of 2011’’. 

(b) TABLE OF CONTENTS.—The table of contents of this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings and purpose. 

Sec. 3. Encouraging speedy resolution of claims. 

Sec. 4. Compensating patient injury. 

Sec. 5. Maximizing patient recovery. 

Sec. 6. Punitive damages. 

Sec. 7. Authorization of payment of future damages to claimants in HEALTH care lawsuits. 

Sec. 8. Definitions. 

Sec. 9. Effect on other laws. 

Sec. 10. State flexibility and protection of States’ rights. 

Sec. 11. Applicability; effective date. 

SEC. 2. FINDINGS AND PURPOSE. 

(a) FINDINGS.— 

(1) EFFECT ON HEALTH CARE ACCESS AND COSTS.—Congress finds that our current civil justice system is adversely affecting patient access to health care services, better patient care, and cost-efficient health care, in that the health care 

liability system is a costly and ineffective mechanism for resolving claims of 

health care liability and compensating injured patients, and is a deterrent to 

the sharing of information among health care professionals which impedes efforts to improve patient safety and quality of care. 

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

and insurance industries are industries affecting interstate commerce and the 

health care liability litigation systems existing throughout the United States 

are activities that affect interstate commerce by contributing to the high costs 

of health care and premiums for health care liability insurance purchased by 

health care system providers. 

(3) EFFECT ON FEDERAL SPENDING.—Congress finds that the health care liability litigation systems existing throughout the United States have a significant 

effect on the amount, distribution, and use of Federal funds because of— 

(A) the large number of individuals who receive health care benefits 

under programs operated or financed by the Federal Government; 

(B) the large number of individuals who benefit because of the exclusion 

from Federal taxes of the amounts spent to provide them with health insurance benefits; and 

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

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

(1) improve the availability of health care services in cases in which health 

care liability actions have been shown to be a factor in the decreased availability of services; 

(2) reduce the incidence of ‘‘defensive medicine’’ and lower the cost of health 

care liability insurance, all of which contribute to the escalation of health care 

costs; 

(3) ensure that persons with meritorious health care injury claims receive fair 

and adequate compensation, including reasonable noneconomic damages; 

(4) improve the fairness and cost-effectiveness of our current health care liability system to resolve disputes over, and provide compensation for, health 

care liability by reducing uncertainty in the amount of compensation provided 

to injured individuals; and 

(5) provide an increased sharing of information in the health care system 

which will reduce unintended injury and improve patient care. 

SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

The time for the commencement of a health care lawsuit shall be 3 years after 

the date of manifestation 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 manifestation of injury unless tolled for any of the following— 

(1) upon proof of fraud; 


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(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 alleged 

manifestation of injury except that actions by a minor under the full age of 6 years 

shall be commenced within 3 years of manifestation of injury 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 or health care organization have committed fraud or collusion in the 

failure to bring an action on behalf of the injured minor. 

SEC. 4. 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, may be as much as $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. 

SEC. 5. 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. 

SEC. 6. PUNITIVE DAMAGES. 

(a) IN GENERAL.—Punitive damages may, if otherwise permitted by applicable 

State or Federal law, be awarded against any person in a health care lawsuit only 

if it is proven by clear and convincing evidence that such person acted with malicious intent to injure the claimant, or that such person deliberately failed to avoid 

unnecessary injury that such person knew the claimant was substantially certain 

to suffer. In any health care lawsuit where no judgment for compensatory damages 

is rendered against such person, no punitive damages may be awarded with respect 


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to the claim in such lawsuit. No demand for punitive damages shall be included in 

a health care lawsuit as initially filed. A court may allow a claimant to file an 

amended pleading for punitive damages only upon a motion by the claimant and 

after a finding by the court, upon review of supporting and opposing affidavits or 

after a hearing, after weighing the evidence, that the claimant has established by 

a substantial probability that the claimant will prevail on the claim for punitive 

damages. At the request of any party in a health care lawsuit, the trier of fact shall 

consider in a separate proceeding— 

(1) whether punitive damages are to be awarded and the amount of such 

award; and 

(2) the amount of punitive damages following a determination of punitive liability. 

If a separate proceeding is requested, evidence relevant only to the claim for punitive damages, as determined by applicable State law, shall be inadmissible in any 

proceeding to determine whether compensatory damages are to be awarded. 

(b) DETERMINING AMOUNT OF PUNITIVE DAMAGES.— (1) FACTORS CONSIDERED.—In determining the amount of punitive damages, 

if awarded, in a health care lawsuit, the trier of fact shall consider only the following— 

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

(B) the duration of the conduct or any concealment of it by such party; 

(C) the profitability of the conduct to such party; 

(D) the number of products sold or medical procedures rendered for compensation, as the case may be, by such party, of the kind causing the harm 

complained of by the claimant; 

(E) any criminal penalties imposed on such party, as a result of the conduct complained of by the claimant; and 

(F) the amount of any civil fines assessed against such party as a result 

of the conduct complained of by the claimant. 

(2) MAXIMUM AWARD.—The amount of punitive damages, if awarded, in a 

health care lawsuit may be as much as $250,000 or as much as two times the 

amount of economic damages awarded, whichever is greater. The jury shall not 

be informed of this limitation. 

(c) NO PUNITIVE DAMAGES FOR PRODUCTS THAT COMPLY WITH FDA STANDARDS.— 

(1) IN GENERAL.— 

(A) No punitive damages may be awarded against the manufacturer or 

distributor of a medical product, or a supplier of any component or raw material of such medical product, based on a claim that such product caused 

the claimant’s harm where— 

(i)(I) such medical product was subject to premarket approval, clearance, or licensure by the Food and Drug Administration with respect 

to the safety of the formulation or performance of the aspect of such 

medical product which caused the claimant’s harm or the adequacy of 

the packaging or labeling of such medical product; and 

(II) such medical product was so approved, cleared, or licensed; or 

(ii) such medical product is generally recognized among qualified experts as safe and effective pursuant to conditions established by the 

Food and Drug Administration and applicable Food and Drug Administration regulations, including without limitation those related to packaging and labeling, unless the Food and Drug Administration has determined that such medical product was not manufactured or distributed in substantial compliance with applicable Food and Drug Administration statutes and regulations. 

(B) RULE OF CONSTRUCTION.—Subparagraph (A) may not be construed as 

establishing the obligation of the Food and Drug Administration to demonstrate affirmatively that a manufacturer, distributor, or supplier referred 

to in such subparagraph meets any of the conditions described in such subparagraph. 

(2) LIABILITY OF 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. Nothing in this paragraph prevents a 

court from consolidating cases involving health care providers and cases involving products liability claims against the manufacturer, distributor, or product 

seller of such medical product. 

(3) PACKAGING.—In a health care lawsuit for harm which is alleged to relate 

to the adequacy of the packaging or labeling of a drug which is required to have 


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tamper-resistant packaging under regulations of the Secretary of Health and 

Human Services (including labeling regulations related to such packaging), the 

manufacturer or product seller of the drug shall not be held liable for punitive 

damages unless such packaging or labeling is found by the trier of fact by clear 

and convincing evidence to be substantially out of compliance with such regulations. 

(4) EXCEPTION.—Paragraph (1) shall not apply in any health care lawsuit in 

which— 

(A) a person, before or after premarket approval, clearance, or licensure 

of such medical product, knowingly misrepresented to or withheld from the 

Food and Drug Administration information that is required to be submitted 

under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) or 

section 351 of the Public Health Service Act (42 U.S.C. 262) that is material 

and is causally related to the harm which the claimant allegedly suffered; 

or (B) a person made an illegal payment to an official of the Food and Drug 

Administration for the purpose of either securing or maintaining approval, 

clearance, or licensure of such medical product. 

SEC. 7. 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, with- out 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. 

SEC. 8. 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) COMPENSATORY DAMAGES.—The term ‘‘compensatory damages’’ means objectively verifiable monetary losses incurred as a result of the provision of, use 

of, or payment for (or failure to provide, use, or pay for) health care services 

or medical products, such as past and future medical expenses, loss of past and 

future earnings, cost of obtaining domestic services, loss of employment, and 

loss of business or employment opportunities, 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. The term 

‘‘compensatory damages’’ includes economic damages and noneconomic damages, 

as such terms are defined in this section. 

(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 of, use of, or payment for (or failure to provide, use, or pay for) health care services or medical 

products, such as past and future medical expenses, loss of past and future 

earnings, cost of obtaining domestic services, loss of employment, and loss of 

business or employment opportunities. 

(6) HEALTH CARE LAWSUIT.—The term ‘‘health care lawsuit’’ means any health 

care liability claim concerning the provision of health care goods or services or 

any medical product affecting interstate commerce, or any health care liability 

action concerning the provision of health care goods or services or any medical 

product affecting interstate commerce, brought in a State or Federal court or 

pursuant to an alternative dispute resolution system, against a health care provider, a health care organization, or the manufacturer, distributor, supplier, 


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marketer, promoter, or seller of a medical product, 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. 

(7) 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, a health care 

organization, or the manufacturer, distributor, supplier, marketer, promoter, or 

seller of a medical product, 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. 

(8) 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, health care organization, or the manufacturer, distributor, 

supplier, marketer, promoter, or seller of a medical product, including, but not 

limited to, third-party claims, cross-claims, counter-claims, or contribution 

claims, which are based upon the provision of, use of, or payment for (or the 

failure to provide, use, or pay for) 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. 

(9) HEALTH CARE ORGANIZATION.—The term ‘‘health care organization’’ means 

any person or entity which is obligated to provide or pay for health benefits 

under any health plan, including any person or entity acting under a contract 

or arrangement with a health care organization to provide or administer any 

health benefit. 

(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. 

(11) HEALTH CARE GOODS OR SERVICES.—The term ‘‘health care goods or services’’ means any goods or services provided by a health care organization, 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) MALICIOUS INTENT TO INJURE.—The term ‘‘malicious intent to injure’’ 

means intentionally causing or attempting to cause physical injury other than 

providing health care goods or services. 

(13) 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. 

(14) 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. 

(15) PUNITIVE DAMAGES.—The term ‘‘punitive damages’’ means damages 

awarded, for the purpose of punishment or deterrence, and not solely for compensatory purposes, against a health care provider, health care organization, or 

a manufacturer, distributor, or supplier of a medical product. Punitive damages 

are neither economic nor noneconomic damages. 

(16) 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. 

(17) STATE.—The term ‘‘State’’ means each of the several States, the District 

of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 

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cific Islands, and any other territory or possession of the United States, or any 

political subdivision thereof. 

SEC. 9. 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. 10. STATE FLEXIBILITY AND PROTECTION OF STATES’ RIGHTS. 

(a) HEALTH CARE LAWSUITS.—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.—(1) 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. 

(2) This Act shall not preempt or supersede any State or Federal law that imposes 

greater procedural or substantive protections for health care providers and health 

care organizations from liability, loss, or damages than those provided by this Act 

or create a cause of action. 

(c) STATE FLEXIBILITY.—No provision of this Act shall be construed to preempt— 

(1) any State law (whether effective before, on, or after the date of the enactment of this Act) that specifies a particular monetary amount of compensatory 

or punitive damages (or the total amount of damages) that may be awarded in 

a health care lawsuit, regardless of whether such monetary amount is greater 

or lesser than is provided for under this Act, notwithstanding section 4(a); or 

(2) any defense available to a party in a health care lawsuit under any other 

provision of State or Federal law. 

SEC. 11. APPLICABILITY; 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 

injury occurred. 

Purpose and Summary 

The HEALTH Act is modeled on California’s legal reforms, which 

have been the law in that state for over 30 years. The HEALTH 

Act’s reforms include a $250,000 cap on noneconomic damages, limits on the contingency fees lawyers can charge, and authorization 

for courts to require periodic payments for future damages instead 

of lump sum awards that prevent bankruptcies in which plaintiffs 

would receive only pennies on the dollar. The HEALTH Act also includes provisions creating a ‘‘fair share’’ rule, by which damages 


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are allocated fairly, in direct proportion to fault, and reasonable 

guidelines—but not caps—on the award of punitive damages. Finally, the HEALTH 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. The HEALTH Act also does not preempt any 

state law that otherwise caps damages. 

Background and Need for the Legislation 

The HEALTH Act’s reforms are necessary to help improve health 

care, make it more affordable, and save taxpayer money while reducing the Federal deficit. 

The HEALTH Act, modeled after California’s decades-old and 

highly successful health care litigation reforms, addresses the current crisis in health care by reining in unlimited lawsuits and 

thereby making 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. Overall, according to data of 

the National Association of Insurance Commissioners (with the latest data available from 2008), the rate of increase in medical professional liability premiums in California since 1976 has been a relatively modest 387%, whereas the rest of the United States has experienced a 1,089% rate of increase, a rate of increase 281% larger 

than that experienced in California, as shown in the following 

chart: 


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1See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 813 (1986). 

By incorporating MICRA’s time-tested reforms at the Federal 

level, the HEALTH 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. 

MICRA’s reforms, which have been the law in California for over 

30 years, include a $250,000 cap on noneconomic damages, limits 

on the contingency fees lawyers can charge; and authorization for 

courts to require periodic payments for future damages instead of 

lump sum awards that prevent bankruptcies in which plaintiffs 

would receive only pennies on the dollar. The HEALTH Act also includes provisions creating a ‘‘fair share’’ rule, by which damages 

are allocated fairly, in direct proportion to fault, and reasonable 

guidelines—but not caps—on the award of punitive damages. Finally, the HEALTH 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. The HEALTH Act also does not preempt any 

state law that otherwise caps damages. 

Enactment of the HEALTH 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.1

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 state’s current crisis 

in medical professional liability 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 HEALTH Act, as 

the HEALTH Act provides that ‘‘No provision of this Act 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 compensatory or punitive damages 

(or the total amount of damages) that may be awarded in a health 

care lawsuit, regardless of whether or not such monetary amount 

is greater or lesser than is provided for under this Act. . . .’’ Some 

states have limited noneconomic damages in medical malpractice 

actions, but at levels higher than $250,000. Some states place aggregate limits on medical malpractice awards. 

THE HUGE COSTS OF DEFENSIVE MEDICINE

ARE PASSED ON TO TAXPAYERS

The American medical lawsuit system is broken. According to 

one study, 40 percent of claims are meritless, in that either no inVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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2 ‘‘Claims, Errors, and Compensation Payments in Medical Malpractice Litigation,’’ David 

Studdert et al., New England Journal of Medicine (May 11, 2006). 3Panda Bear, MD, ‘‘How I Am Learning to Throw Money Away with Both Hands and a Big 

Shovel’’ (February 5, 2008). 4 Available at http://www.hsph.harvard.edu/faculty/articles/litigation.pdf. 

5See 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. 6 ‘‘Investigation of Defensive Medicine in Massachusetts,’’ Massachusetts Medical Society (November 2008). 7David Studdert et al., ‘‘Defensive Medicine Among High-Risk Specialist Physicians in a Volatile Malpractice Environment,’’ JAMA (June 1, 2005) at 2609–2617. 

jury or no error occurred in the case. Attorneys’ fees and administrative costs eat away 54% of the compensation that should be paid 

to plaintiffs. And completely meritless claims (which are nonetheless successful approximately one in four times) account for nearly 

a quarter of total administrative costs.2

Under current rules, health care workers seek to avoid these 

costs to themselves by conducting many additional costly tests and 

procedures and shifting those costs to taxpayers. As one physician 

explained, ‘‘Just one successful lawsuit against a physician for a 

missed diagnosis can damage his ability to maintain his credentials, cost him . . . in increased liability insurance, jeopardize his 

financial assets, and even end his career. Why risk our own money 

when we can use somebody else’s to protect us, even if it costs millions?’’ 3

DEFENSIVE MEDICINE IS WIDESPREAD, AND THE SOLUTION IS TORT REFORM

‘‘Defensive medicine’’ is widely practiced. Skyrocketing medical liability insurance rates have distorted the practice of medicine. 

Costly, but unnecessary, tests have become routine as doctors try 

to protect themselves from frivolous lawsuits. Indeed, according to 

a Harvard University research study, 40% of medical malpractice 

lawsuits filed in the United States lack evidence of medical error 

or any actual patient injury.4

A survey released in 2010 found defensive medicine is an issue 

for all physicians. The results, published in the Archives of Internal 

Medicine, found that 91% of the 1,231 doctors who responded to 

their survey ‘‘reported believing that physicians order more tests 

and procedures than needed to protect themselves from malpractice 

suits.’’ That view was held by the vast majority of generalists 

(91%), medical specialists (89%), surgeons (93%) and other specialists (94%). The survey asked two questions: ‘‘Do physicians order 

more tests and procedures than patients need to protect themselves 

from malpractice suits?’’ And, ‘‘Are protections against unwarranted malpractice lawsuits needed to decrease the unnecessary 

use of diagnostic tests?’’ Overall, 91 percent of doctors surveyed 

agreed with both statements.5

According to a 2008 survey conducted by the Massachusetts Medical Society, 83 percent of physicians reported that they practice defensive medicine.6 Another study in Pennsylvania put the figure at 

93 percent.7

Defensive medicine is widespread in specialty medical fields as 

well. According to another report: 

[A] survey from Emergency Physicians Monthly [concludes] 

many tests performed in the ER [emergency room] are deemed 


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8KevinMD.com ‘‘How Much Unnecessary Testing Goes On in the ER?’’ (September 30, 2009). 

9KevinMD.com ‘‘How Much Unnecessary Testing Goes On in the ER?’’ (September 30, 2009). 

And in 2003, the Florida Governor’s Select Task Force on Health Care Professional Liability Insurance made its official recommendations to Governor Bush. The Task Force concluded as follows: ‘‘the most important [recommendation] is a cap on noneconomic damages in the amount 

of $250,000.’’ Governor’s Select Task Force on Healthcare Professional Liability Insurance (January 29, 2003) at xvi (Executive Summary). 10Lindsey Tanner, ‘‘Fear Can Drive ERs To Do Tests to Excess,’’ Associated Press (June 21, 

2010). 

unnecessary to good patient care. Here’s how doctors responded to the following question: ‘‘Given that in a typical shift 

of eight hours you see an average of two patients per hour (16 

patients/shift), could you have eliminated any of the following 

tests and/or treatments without compromising the quality of 

care? If so, how many of each?’’ The results of the survey 

showed how many times ER doctors prescribe which types of 

tests unnecessarily to avoid unlimited lawsuits: 

As you can see, laboratory tests and CT scans comprised the 

greatest proportion of unnecessary tests.8

The same survey found that the HEALTH Act’s limit on noneconomic damages is essential to reducing defensive medicine: ‘‘The 

survey also found that non-economic caps are these physicians’ preferred choice of malpractice reform, with 84 percent of emergency 

physicians calling them a ‘non-negotiable part of health reform.’ ’’ 9

Another report on defensive medicine in the ER summarized ER 

doctors’ incentives as follows: 

The fear of missing something weighs heavily on every doctor’s 

mind. But the stakes are highest in the ER, and that fear often 

leads to extra blood tests and imaging scans for what might be 

harmless chest pains, run-of-the-mill head bumps and nonthreatening stomachaches. Many ER doctors say the No. 1 reason is fear of malpractice lawsuits. ‘‘It has everything to do 

with it,’’ said Dr. Angela Gardner, president of the American 

College of Emergency Physicians.10

As one Newsweek reporter described the personal experience of 

individual doctors: 

When I asked physicians which medical procedures were costly 

and commonly performed but did not help (at least some) patients, I expected more of them to justify almost everything 

they do. Some did. But as the Newsweek article on ‘‘medicine 

we can live without’’ showed, many physicians couldn’t get 

their nominees to me fast enough, so eager were they to spread 

the word about how much stupid, useless medical care there is. 


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The reason for that isn’t surprising: doctors hate practicing defensive medicine—that is, ordering tests, surgeries, or other 

procedures not because the doctor knows it will help the patient but to protect the physician from lawsuits. . . . 

[M]ore typical was Angela Gardner, president of the American 

College of Emergency Physicians, who had a list as long as my 

arm of procedures ER docs perform, often for no patient benefit. They include following a bedside sonogram (looking for ectopic pregnancy, for instance) with an ‘‘official’’ sonogram (because if something is missed 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 

(ORs won’t accept patients for an appendectomy without a CT); 

and . . . well, there were more. But in short, Gardner told me, 

‘‘I think there is plenty we could cut out without hurting patients in any way.’’ 

So why don’t they? Because although doctors may hate practicing defensive medicine, they do it so they don’t get sued. 

We’ve known that for a long time, but a recent survey of physicians is so replete with horror stories I can’t resist sharing 

them. . . . 

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. 

And now for those horror stories. The ER, said one doc in the 

Jackson survey, ‘‘should have a CT head scanner at the entrance door,’’ since ‘‘every patient gets a head CT.’’ 

Another ER doc said he ‘‘routinely admit[s] low-risk chest pain 

patients because I know at some point in my career, one of 

them will go home and die from a heart attack. I will admit 

hundreds to avoid that one death (and possible lawsuit).’’ Another said he ordered 52 CT scans in one 12-hour shift: ‘‘That’s 

$104K in one day.’’ And another: ‘‘Any patient who presents to 

the ER and mentions the magic words ‘chest pain,’ unless they 

are well known by the physician, is guaranteed to undergo 

multiple blood tests, ECGs, stress tests, perhaps CT scans, and 

will incur charges of several thousand dollars. A very large 

percentage of these patients will have very low probability of 

having ischemic chest pain, yet all patients will undergo testing to prevent ‘something from being missed’ in the name of 

defensive medicine.’’ 

Like other physicians, this one bemoaned what he has to do to 

appease patients, such as a ‘‘paranoid new mom [who] insists 

her child needs a head CT after they bumped their head . . . 

to rule out a head bleed. So to appease the lawyers and hospital administration and everyone else, I have to consciously 

sedate a perfectly normal 15-month-old and put them at terrible risk just to prove to a mother that children don’t get head 


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11Sharon 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). 12Stephanie Nano, ‘‘Heart Doctors Admit They Order Unnecessary Tests Out of Fear of Being 

Sued,’’ Associated Press (April 14, 2010). 13Kay Lazar, ‘‘Doctors’ Practice of ‘Defensive Medicine’ Widespread, Costly,’’ White Coat Notes 

(November 17, 2008). 14 ‘‘Price: Cutting Medical Costs without Obamacare,’’ Washington Times, 3/18/10. 

bleeds from falling over and bumping their heads!’’ (That ‘‘terrible risk’’ refers to the fact that CTs deliver a lot of radiation 

and thus increase the risk of cancer.) And an anesthesiologist 

described how he orders ‘‘lab tests, X rays, cardiac consultations, and stress tests, [as well as] pregnancy tests . . . most 

often to cover our butts.’’ 

Obstetricians really sounded off. One described having to 

admit to the hospital ‘‘pregnant patients with complaints such 

as stomach pain, cramps, excess vaginal discharge, headache, 

etc.’’ almost solely for defensive reasons: ‘‘You can’t afford to 

give them any reason to point to you if their baby isn’t perfect.’’ 11

And, according to a recent survey of heart doctors: 

A substantial number of heart doctors—about one in four—say 

they order medical tests that might not be needed out of fear 

of getting sued, according to a new study . . . [A]bout 24 percent of the doctors said they had recommended the test in the 

previous year because they were worried about malpractice 

lawsuits . . . The study was released Tuesday by the journal 

Circulation: Cardiovascular Quality and Outcomes.12

Moreover, according to the Massachusetts Medical Society, and 

White Coat Notes, a publication of the Boston-area medical community: 

The fear of being sued is driving Massachusetts physicians to 

order many tests, procedures, referrals to specialists and even 

hospitalizations for consumers that aren’t needed and drive up 

health costs by more than $1.4 billion a year, according to a 

new study that is the first of its kind. 

The Massachusetts Medical Society surveyed 900 of its members, including family doctors, obstetricians and gynecologists 

and general surgeons, who reported practicing so-called ‘‘defensive medicine.’’ 

The report found that 83 percent of physicians surveyed reported practicing defensive medicine and that an average of 18 

to 28 percent of tests, procedures and referrals and consultations, and 13 percent of hospitalizations were ordered solely 

out of fear of being sued.13

A recent Gallup survey of American physicians found the fear of 

lawsuits was the driver behind 21 percent of all the tests and treatments ordered by doctors, which equates to 26 percent of all health 

care dollars spent. That comes to a staggering $650 billion.14 According to a study of medical liability costs and the practice of medVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00013 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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15 ‘‘Addressing the New Health Care Crisis: Reforming the Medical Litigation System to Improve the Quality of Care 11,’’ Office of the Assistant Secretary for Planning and Evaluation, 

U.S. Department of Health and Human Services, 2003. 16 ‘‘Fear of Litigation Study, The Impact on Medicine,’’ Harris Interactive (April 11, 2002). 17Katherine Hobson, ‘‘How Much Does Defensive medicine Cost? One Study Says $46 Billion,’’ 

Wall Street Journal Health Blog (September 7, 2010). 18 Available at http://www.heartland.org/custom/semodlpolicybot/pdf/26161.pdf. 19PricewaterhouseCoopers’ Health Research Institute, The Price of Excess: Identifying Waste 

in Healthcare Spending (New York: PricewaterhouseCoopers 2008), endnote 18, at 18. 20 ‘‘The Price of Excess: Identifying Waste in Healthcare Spending,’’ PricewaterhouseCoopers, 

2008. 21Text: Obama’s AMA Speech on Health Care (CBS News) (June 15, 2010). 

icine in Health Affairs, overuse of imaging services alone, driven by fear of lawsuits, costs as much as $170 billion a year nationally.15

The medical lawsuit crisis affects nurses as well. Nearly half of 

nurses say they are prohibited or discouraged from providing needed care by rules set up to avoid lawsuits.16

DEFENSIVE MEDICINE IS COSTLY

How much money does defensive medicine waste? As was recently reported: 

The latest estimate of the costs of defensive medicine, from an 

analysis just published in Health Affairs: $45.6 billion annually (in 2008 dollars), accounting for more than 80% of the 

$55.6 billion total yearly cost of the medical liability system. 

The authors from Harvard University and the University of 

Melbourne explain that their analysis doesn’t attempt to estimate social costs or benefits of the malpractice system, such as 

damage to physicians’ reputations or any deterrent effect it 

may provide. . . . [Their conclusions] include estimates of defensive medicine costs both for hospitals ($38.8 billion) and for 

physicians ($6.8 billion), calculated by looking at costs in highand low-liability environments. The thought is that the difference represents [increased] spending due to fear of being 

sued—i.e. defensive medicine. . . . The total costs of the medical liability system constitute about 2.4% of total health-care 

spending, the authors write. That’s ‘‘not trivial,’’ they write, 

and because some of these costs ‘‘stem from meritless malpractice litigation,’’ flaws in the system are worth addressing.17

A new study by the Pacific Research Institute estimates that defensive medicine costs $191 billion a year,18 while a separate study 

by PricewaterhouseCoopers puts the number even higher—$239 

billion.19 That follows another study by PricewaterhouseCoopers 

that found, ‘‘While the bulk of the premium dollar pays for medical 

services, those medical services include the cost of medical liability 

and defensive medicine. . . . Defensive tests and treatment can 

pose unnecessary medical risks and add unnecessary costs to 

healthcare.’’ 20

THE CONSENSUS IS THAT DEFENSIVE MEDICINE CAUSED BY

UNLIMITED LAWSUITS IS A REAL PROBLEM

President Obama himself acknowledged the harm caused by defensive medicine, stating ‘‘I want to work with the AMA so we can 

scale back the excessive defensive medicine that reinforces our current system, and shift to a system where we are providing better 

care, simply—rather than simply more treatment.’’ 21 The President 


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22 ‘‘Making Patient Safety the Centerpiece of Medical Liability Reform, ’’ Sen. Barack Obama 

and Sen. 

Hillary Clinton, New England Journal of Medicine (May 25, 2006). 23 Associated Press, ‘‘Fact Check: Obama and His Imbalanced Ledger’’ (January 26, 2011). 24See 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. 

himself weighed in on the issue in more detail, writing in the New 

England Journal of Medicine that ‘‘the current tort system does not 

promote open communications to improve patient safety. On the 

contrary, it jeopardizes patient safety by creating an intimidating 

liability environment.’’ 22 And in his 2011 State of the Union Address, President Obama said ‘‘I’m willing to look at other ideas to 

bring down costs, including one that Republicans suggested last 

year: medical malpractice reform to rein in frivolous lawsuits.’’ Although the Associated Press has written that ‘‘Republicans may be 

forgiven if [the President’s] offer makes them feel like Charlie 

Brown running up to kick the football, only to have it pulled away, 

again,’’ 23 the President should fulfill his promise and support timetested reforms that have proven successful for over three decades 

in California. 

A survey conducted for the bipartisan legal reform organization 

‘‘Common Good,’’ whose Board of Advisors included Eric Holder, 

who is now President Obama’s Attorney General, 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.’’ 24

President Obama’s own doctor of over two decades also supports 

medical tort reform. David Scheiner was Obama’s doctor from 1987 

until he entered the White House; he vouched for the then-candidate’s ‘‘excellent health’’ in a letter last year. As was recently reported in Forbes magazine: 

[Dr. Scheiner is] still an enthusiastic Obama supporter, but he 

worries about whether the health care legislation currently 

making its way through Congress will actually do any good, 

particularly for doctors like himself who practice general medicine. ‘‘I’m not sure [Obama] really understands what we face 

in primary care,’’ Scheiner says. . . . 

Scheiner is critical of Obama’s pick for Health and Human 

Services secretary—Kansas Gov. Kathleen Sebelius, who used 

to work as the chief lobbyist for her state’s trial lawyers association. . . . 

Scheiner says he never thought it was appropriate to talk 

about health policy with Obama, especially once he became a 

U.S. Senator. The one exception was medical malpractice reform. ‘‘I once briefly talked to him about malpractice, and he 

took the lawyers’ position,’’ he says. . . . 

Scheiner, like most others in his profession, thinks that it 

should be harder to sue doctors and that awards should be 


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25David Whelan, ‘‘Obama’s Doctor Knocks ObamaCare,’’ Forbes.com (June 16, 2009). 26See http://cboblog.cbo.gov/?p=389. 27 Congressional Budget Office Cost Estimate of H.R. 4600 (the HEALTH Act) (September 24, 

2002). 28 Congressional Budget Office Cost Estimate of H.R. 4600 (the HEALTH Act) (September 24, 

2002). 29General Accounting Office, ‘‘Medical Malpractice Insurance,’’ GAO–03–702 (June 2003) at 

‘‘Highlights,’’ 4, and 25 (emphasis added). 30 Id. at 32. 

capped. He says that he and other doctors must order too 

many tests and imaging studies just to avoid being sued.25

The Congressional Budget Office (CBO) 

On October 9, 2009, the Congressional Budget Office announced 

that a legal reform package modeled on the HEALTH Act would reduce the Federal budget deficit by an estimated $54 billion over the 

next 10 years.26 CBO recognizes that civil justice reforms also have 

an impact on the practice of ‘‘defensive medicine.’’ Defensive medicine is when doctors order more tests or procedures than are truly 

necessary just to protect themselves from frivolous lawsuits. Studies show that defensive medicine does not advance patient care or 

enhance a physician’s diagnostic capabilities. 

The billions of dollars in savings from tort reform could be used 

to provide health insurance for the uninsured without raising taxes 

or penalties on those who already have insurance policies. 

According to another CBO report, ‘‘CBO estimates that, under 

[the HEALTH Act], premiums for medical malpractice insurance 

ultimately would be an average of 25 percent to 30 percent below 

what they would be under current law.’’ 27 Lower health care lawsuit liability premiums would reduce health care costs for everyone 

and increase the supply of vital doctors. 

Further, according to another CBO report, ‘‘analysis [of the 

HEALTH Act] indicated that certain tort limitations, primarily 

caps on awards . . . effectively reduce average premiums for medical malpractice insurance. Consequently, CBO estimates that, in 

states that currently do not have controls on malpractice torts, [the 

HEALTH Act] would significantly lower premiums for medical malpractice insurance from what they would otherwise be under current law. . . .’’ 28

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. . . .’’ 29 The 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.’’ 30

The National Commission on Fiscal Responsibility and Reform 

The National Commission on Fiscal Responsibility and Reform, 

which was created by President Obama, supports health care litigation reform in its final December 2010 report. As the Commission 


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31The National Commission on Fiscal Responsibility and Reform, ‘‘The Moment of Truth’’ (December 2010) at 34–35. 

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: 

1) Modifying the ‘‘collateral source’’ rule to allow outside 

sources of income collected as a result of an injury (for example 

workers’ compensation benefits or insurance benefits) to be 

considered in deciding awards; 2) Imposing a statute of limitations—perhaps one to three years—on medical malpractice 

lawsuits; 3) Replacing joint-and-several liability with a fairshare 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; 4) Creating 

specialized ‘‘health courts’’ for medical malpractice lawsuits; 

and 5) Allowing ‘‘safe haven’’ rules for providers who follow 

best practices of care. 

Many members of the Commission also believe that we should 

impose statutory caps on punitive and non-economic damages, 

and we recommend that Congress consider this approach and 

evaluate its impact.31

The New York Times 

According to the New York Times: 

The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra—a 

Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association— 

says $60 billion a year, or about 3 percent of overall medical 

spending, is a reasonable upper-end estimate. 

Perhaps the best-known study of defensive medicine—by Dr. 

Mark McClellan, who later ran Medicare in the Bush administration, and Daniel Kessler—compared cardiology treatment in 

states that had capped malpractice awards in the 1980s and 

early ’90s with those that didn’t. In the states without caps, 

stenting and other treatments were more common, but the outcomes were no better. . . . 

[T]he researchers in the field tend to agree about the scale of the 

problem—and how much malpractice reform might accomplish. . . . Dana Goldman, director of the Schaeffer Center for 

Health Policy at the University of Southern California, adds: ‘‘It is 


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32David Leonhardt, ‘‘Medical Malpractice System Breeds More Waste,’’ The New York Times 

(September 23, 2009). 33 Uwe E. Reinhardt, ‘‘Why Does U.S. Health Care Cost So Much? (Part I),’’ The New York 

Times (November 14, 2008). 34Manhattan Institute’s Center for Legal Policy study (2008). 35 ‘‘Reviving Tort Reform,’’ Investor’s Business Daily, 11/15/10. 36 USA Today editorial, ‘‘Our View on ‘Defensive’ Medicine: Lawyers’ Bills Pile High, Driving 

Up Health Care Costs,’’ USA Today (December 29, 2008). 

one of the things we need to address if we want to bend the cost 

curve.’’ 32

The New York Times also reported that Uwe E. Reinhardt, an 

economist at Princeton University, has written that the massive 

costs of lawsuit abuse in the United States distinguishes it from 

other countries: 

Health-services researchers call the difference between these 

numbers [the health care spending of different countries], ‘‘excess spending.’’ That term [conveys] a difference driven by factors other than G.D.P. per capita. Prominent among these 

other factors are: . . . higher treatment costs triggered by our 

uniquely American tort laws, which in the context of medicine 

can lead to ‘‘defensive medicine’’—that is, the application of 

tests and procedures mainly as a defense against possible malpractice litigation, rather than as a clinical imperative.33

We know that our medical liability costs are at least twice those 

in other developed countries 34 and make up 10 percent of all tort 

cases. That’s the macro perspective, but what about the physicians, 

hospitals or other health care providers on the wrong end of a lawsuit? They can expect to pay an average of $26,000 to defend a case 

that is dropped before trial and as much as $140,000 if the case 

actually goes to court, regardless of the merits.35 So, even when 

good doctors win their lawsuits, which happens the vast majority 

of the time, they still lose. They lose valuable patient time, money, 

and peace of mind while watching their professional reputations 

impugned. 

USA Today 

The USA Today editorial board also recently came out supporting tort reform, stating: 

A study last month 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. [And a] 2005 study in the Journal of the American 

Medical Association found 93% of Pennsylvania doctors practice defensive medicine. 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.36

The editors of USA Today concluded that ‘‘one glaring omission’’ 

from the health care 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 


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37 USA Today editorial, ‘‘Don’t try to repeal the new health care law—improve it’’ (November 

18, 2010) at 9A. 38 Carrie Budoff Brown, ‘‘Trial Lawyers Plan Tort Reform Fight,’’ Politico (March 16, 2009). 39 John Berlau, ‘‘’Gifted Hands’ Surgeon Rips Into Obamacare,’’ BogGovernment.com, available 

at http://biggovernment.com/2009/10/14/gifted-hands-surgeon-rips-into-obamacare/. 

10 years by curbing tests and procedures that patients don’t really 

need. So why not add it?’’ 37

The American Medical Association 

Discussing the need for tort reform, the President of the American Medical Association said ‘‘If the [health care] bill doesn’t have 

medical liability reform in it, then we don’t see how it is going to 

be successful in controlling costs.’’ 38

The Director of Pediatric Neurosurgery at Johns Hopkins 

One of the nation’s top surgeons, with credibility and acclaim the 

world over for the pioneering surgeries he has and his personal 

story of overcoming hardship, recently severely criticized the dominant health care legislation before Congress. Benjamin Carson, director of pediatric neurosurgery at the Johns Hopkins Medical Institutions in Baltimore, Maryland, and recipient of numerous 

awards including the Presidential Medal of Freedom, criticized in 

a recent interview the approach of the current bills for their mandate, creation of a ‘‘public option,’’ and lack of malpractice liability 

reform. He pointed to excessive litigation, pointing out how much 

malpractice insurance and other forms of ‘‘defensive medicine’’ to 

protect against lawsuits add to medical costs. In the interview with 

a local television station, Carson insisted that tort reform must go 

‘‘hand in hand’’ as part of any true health care reform. According 

to Dr. Carson, ‘‘We have to bring a rational approach to medical 

litigation.’’ ‘‘We’re the only nation in the world that really has this 

problem. Why is it that everybody else has been able to solve this 

problem but us? Simple. Special interest groups like the trial lawyers’ association. They don’t want a solution.’’ 39

The Wall Street Journal 

As summarized by Kimberly Strassel in the Wall Street Journal: 

Tort reform is a policy no-brainer. Experts on left and right 

agree that defensive medicine—ordering tests and procedures 

solely to protect against Joe Lawyer—adds enormously to 

health costs. The estimated dollar benefits of reform range 

from a conservative $65 billion a year to perhaps $200 billion. 

In context, Mr. Obama’s plan would cost about $100 billion annually. That the president won’t embrace even modest change 

that would do so much, so quickly, to lower costs, has left 

Americans suspicious of his real ambitions. 

It’s also a political no-brainer. Americans are on board. Polls 

routinely show that between 70% and 80% of Americans believe the country suffers from excess litigation. The entire 

health community is on board. Republicans and swing-state 

Democrats are on board. State and local governments, which 

have struggled to clean up their own civil-justice systems, are 

on board. In a debate defined by flash points, this is a rare 

area of agreement. Former Democratic Sen. Bill Bradley, in a 

New York Times piece, suggested a ‘‘grand bipartisan comVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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40Kimberly A. Strassel, ‘‘The President’s Tort Two-Step,’’ The Wall Street Journal (September 

11, 2009). 41 Co-Chair Proposal, at 32, available at http://www.fiscalcommission.gov/sites/ 

fiscalcommission.gov/files/documents/CoChairlDraft.pdf. 42 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. 43 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 69. 44 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 72. 45 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 66. 

promise’’ in which Democrats got universal coverage in return 

for offering legal reform. 

The only folks not on board are a handful of powerful trial lawyers, and a handful of politicians who receive a generous cut 

of those lawyers’ contingency fees. The legal industry was the 

top contributor to the Democratic Party in the 2008 cycle, 

stumping up $47 million. The bill is now due, and Democrats 

are dutifully making a health-care down payment. 

During the markup of a bill in the Senate Health Committee, 

Republicans offered 11 tort amendments that varied in degree 

from mere pilot projects to measures to ensure more rural obstetricians. On a party line vote, Democrats killed every one.40

Since President Obama signed the health care bill into law, the 

bipartisan co-chairs of the President’s own deficit reduction 

commission, Erskine Bowles and Alan Simpson, recommended 

that Congress enact a law to ‘‘Pay lawyers less and reduce the 

cost of defensive medicine’’ by ‘‘[e]nact[ing] comprehensive 

medical malpractice liability reform to cap non-economic and 

punitive damages and make other changes in tort law.’’ 41

The 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.’’ The Reagan task force specifically recommended: ‘‘eliminate joint and several liability,’’ 42 ‘‘provide for 

periodic payments of future economic damages,’’ 43 ‘‘schedule [limit] 

contingency fees’’ 44 of attorneys, and ‘‘limit non-economic damages 

to a fair and reasonable amount.’’ 45 Indeed, regarding the limit on 

non-economic damages, the report concluded: 

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. AccordVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00020 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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46 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 66. 47 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 21–24. 48 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 36–37, 39– 

40. 49Lindsey Tanner, ‘‘Fear Can Drive ERs To Do Tests to Excess,’’ Associated Press (June 21, 

2010). 

ingly, such damages are particularly suitable for a specific limitation.46

All of these recommended reforms are part of the HEALTH Act. 

The report also contains an extensive discussion of the harmful effects tort law has on ‘‘medical malpractice’’ insurance,47 and a discussion and charts describing the impact of rising malpractice jury 

awards.48

THE FURTHER HIDDEN COSTS OF DEFENSIVE MEDICINE: 

MORE RADIATION AND NO ADVICE BY TELEPHONE

Defensive medicine entails additional hidden costs. As was reported recently: 

The result [of defensive medicine] can be extra costs, and potential harm—including side effects from unneeded drugs and 

increased risk of future cancer from excessive radiation. 

No one tells patients after a CT scan that the test ‘‘just imparted three years of radiation to your body as well as significant stress on your kidney, and Medicare just got charged lots 

of money.’’ 49

As explained by another doctor: 

Of course there is far more to defensive medicine than obstetric 

procedures. Many CT scans are entirely unnecessary, and in 

fact expose patients to radiation that may contribute to one in 

fifty cancers. But woe to the emergency room doc who didn’t 

immediately scan the head of a trauma patient. Unnecessary 

blood tests, biopsies, and specialist referrals are all done to 

‘‘spread the blame’’ and make lawsuits defensible. 

Defensive medicine costs you more than money. When was the 

last time you asked for telephone advice? Doctors are very, 

very leery of giving meaningful advice over the phone, because 

we can’t take the risk of this kind of conversation in front of 

a jury: 

Attorney: You mean you refilled the medicine without performing another physical exam? If you had seen the patient in 

person, you would have found the cancer earlier! 

Doctor: The medicine had nothing to do with cancer! I was just 

trying to help the patient! It’s expensive to make them come in 

every month for a refill! 

Anytime we tell anyone anything, any kind of advice, doctors 

must consider the risk of a lawsuit. Everything we say and do 

is supposed to be documented, too—to defend ourselves. Every 

wonder why the doc spends so much time scribbling in the 

chart, instead of talking to you? It’s not because we like writVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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50 Roy Benaroch, MD, ‘‘Health Care Costs: Defensive Medicine,’’ The Pediatric Insider (2010). 51See Daniel P. Kessler and Mark B. McClellan, ‘‘The Effects of Malpractice Pressure and Liability Reforms on Physicians’ Perceptions of Medical Care,’’ 60 Law and Contemporary Problems 1: 81–106 (1997), at 105. 52Marc Kaufman, ‘‘Bush Adviser Tabbed for FDA,’’ Washington Post (September 25, 2002) at 

A25. 53Daniel P. Kessler and Mark B. McClellan, ‘‘Medical Liability, Managed Care, and Defensive 

Medicine,’’ National Bureau of Economic Research (NBER) Working Paper 7537 (February 2000) 

at 16. 54Daniel P. Kessler and Mark B. McClellan, ‘‘Do Doctors Practice Defensive Medicine?’’ The 

Quarterly Journal of Economics (May 1996) at 386 (‘‘Our analysis indicates that reforms that 

directly limit liability, caps on damage awards . . . and collateral source rule reforms—reduce 

hospital expenditures by 5 to 9 percent within three to five years of adoption. . . .’’). The researchers in this study analyzed populations in predominantly non-managed care programs in 

the mid-1980’s, and found that, of the populations studied with two different types of illnesses, 

direct health care litigation reforms would reduce hospital expenditures by 5.8% and 8.9% several years after their adoption. Id. at 367, 382. 55See George McGovern and Alan Simpson, ‘‘We’re Reaping What We Sue,’’ Wall Street Journal (April 17, 2002) at A20. 

ing. It’s because every single day we’re reminded that the chart 

is our only defense. 

Do you think this hasn’t increased health care costs? Do you 

think it hasn’t affected the relationships doctors have with patients? 

The current medical malpractice system is a disgrace.50

DEFENSIVE MEDICINE CAUSES ALL THOSE HARMS

WITHOUT ADDING ANY BENEFITS

Two top economic researchers have concluded: ‘‘[P]hysicians from 

states enacting liability reforms that directly reduce malpractice 

pressure experience lower growth over time in malpractice claims 

rates and in real malpractice insurance premiums. [Also], physicians from reforming states report significant relative declines in 

the perceived impact of malpractice pressure on practice patterns.’’ 51 One of those economists is Mark McClellan, who worked 

on health policy issues in President Clinton’s Treasury Department 

and who has been described by Senator Ted Kennedy as having 

‘‘impressive credentials both as a physician and as an economist.’’ 52

These economists conducted two extensive studies using national 

data on Medicare populations and concluded that patients from 

states that adopted direct medical care litigation reforms, such as 

limits on damage awards, incur significantly lower hospital costs 

while suffering no increase in adverse health outcomes associated 

with the illness for which they were treated. In sum, the studies 

concluded that in states with medical litigation reforms in place, 

there was an average reduction of 4.3% in hospital costs for patients in managed care programs,53 and an average reduction of 

7.4% in hospital costs for patients in non-managed care programs.54 They have thereby quantified the cost of ‘‘defensive medicine,’’ in which doctors perform tests and prescribe medicines that 

are not necessary for health in order to avoid patients’ future 

claims that they suffered adverse health effects because the doctor 

didn’t do more. Former Senator George McGovern has written that 

‘‘Legal fear drive[] [doctors] to prescribe medicines and order tests, 

even invasive procedures, that they feel are unnecessary. Reputable studies estimate that this ‘defensive medicine’ squanders 

$50 billion a year, enough to provide medical care to millions of uninsured Americans.’’ 55 Reducing defensive medicine will save tens 

of billions more of taxpayer dollars. 


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56D. 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, et al., ‘‘Relation Between Malpractice 

Claims and Adverse Events Due to Negligence,’’ New Engl. J. Med. 325:245–251 (1991). 57Denise Grady, ‘‘Oops, Wrong Patient: Journal Takes on Medical Mistakes,’’ New York Times 

(June 18, 2002). 58See 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. 

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.56 Nevertheless, the litigation reforms in the HEALTH 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. 

The HEALTH Act would largely dispel that fear and allow doctors to freely suggest improvements in medical care. The medical 

journal Annals of Medicine detailed reports of medical errors. As 

has been 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].’’ 57

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.’’ 58

Indeed, according to an exhaustive study by the RAND Corporation, California’s reduction in the number of health care lawsuits 

filed in that state is attributable to improved patient safety at California hospitals. According to the study: 

Our results showed a highly significant correlation between 

the frequency of adverse events [medical errors] and malpractice claims: On average, a county that shows a decrease of 

10 adverse events in a given year would also see a decrease of 

3.7 malpractice claims. Likewise, a county that shows an increase of 10 adverse events in a given year would also see, on 

average, an increase of 3.7 malpractice claims. According to the 

statistical analysis, nearly three-fourths of the within-county 

variation in annual malpractice claims could be accounted for 

by the changes in patient safety outcomes. We also found that 


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59Michael D. Greenberg, Amelia M. Haviland, J. Scott Ashwood, Regan Main, ‘‘Is Better Patient Safety Association with Less Malpractice Activity?’’ RAND Institute for Civil Justice (2010) 

at x. 60 Institute of Medicine, ‘‘To Err Is Human: Building a Safer Health System’’ (2000). 61 Rick Weiss, ‘‘Report on Medical Errors Called Erroneous,’’ The Washington Post (July 5, 

2000). 62Troyen A. Brennan, ‘‘The Institute of Medicine report on medical errors—could it do harm?’’ 

New England Journal of Medicine (2000); see also John D. Dunn, ‘‘The Patient Safety Crusade— 

a Phony Crisis,’’ The Heartland Institute (2006). 63 Eric J. Thomas et al., ‘‘The Reliability of Medical Record Review for Estimating Adverse 

Event Rates,’’ Annals of Internal Medicine (2002); see also Zachary F. Meisel and Jesse M. 

Pines, ‘‘Health Care Scare: How to avoid medical mistakes,’’ Slate Medical Examiner (June 3, 

2009). 

the correlation held true when we conducted similar analyses 

for medical specialties—specifically, surgeons, nonsurgical physicians, and obstetrician/gynecologists (OB-GYNs). Nearly twothirds of the variation in malpractice claiming against surgeons and nonsurgeons can be explained by changes in safety. 

The association is weaker for OB-GYNs, but still significant.59

With the passage of health care lawsuit reform in California, doctors, hospitals and other healthcare providers are able to share information needed to create a safer environment, without fear of 

lawsuits, and focus on their patients instead of worrying about getting sued. 

THE ‘‘98,000 MEDICAL-ERROR DEATHS PER YEAR’’ STATISTIC

IS EXAGGERATED AND MISLEADING

We should do everything we can to reduce medical errors, but 

the widely cited claim that 98,000 patients die annually due to 

medical errors has been shown to be exaggerated and unreliable. 

The Institute of Medicine (IOM) study upon which the 98,000 

death figure is based actually estimated a range of 44,000 to 98,000 

deaths a year.60 So even according to that study, 98,000 is not a 

definitive figure but merely the top end of a very wide and imprecisely estimated range. 

Shortly after its release in the year 2000, the IOM study came 

under heavy criticism for imprecise methodology that greatly overstated the rate of deaths from medical errors. Doctors and academics have pointed to many fundamental problems with the 

IOM’s data that lead it to overstate the rate of death from medical 

error. For example, the IOM data treated deaths from drug abuse 

as ‘‘medication errors.’’ 61

Dr. Troyen Brennan, the lead Harvard researcher who compiled 

much of the data upon which the IOM report was based wrote 

shortly after the report’s release that ‘‘I have cautioned against 

drawing conclusions about the numbers of deaths in these studies,’’ 

that ‘‘[t]he ability of identifying errors is methodologically suspect,’’ 

and that ‘‘[a] careful reader must have some reservations about the 

IOM report.’’ 62 Dr. Brennan and two other researchers later revisited their methodology and determined that the IOM’s figures were 

‘‘imprecise,’’ and that the actual figure could be as little as 10 percent of the IOM’s estimate.63

Three doctors associated with the University of Indiana’s 

Regenstreif Institute wrote in the Journal of the American Medical 

Association that the IOM study was constructed to exaggerate the 

avoidable damage done by medical mistakes, and concluded that 


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64 Clement J. McDonald et al., ‘‘Deaths Due to Medical Errors Are Exaggerated in Institute 

of Medicine Report,’’ Journal of the American Medical Association (2000). 65For 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). 66See Testimony of Leanne Dyess, ‘‘Patient Access Crisis: The Role of Medical Litigation,’’ 

Senate Judiciary Committee (February 11, 2003); Testimony of Dr. Thomas Gleason, ‘‘Medical 

Liability Reform: Stopping the Skyrocketing Price of Health care,’’ House Small Business Committee (February 17, 2005). 67See 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). 68 ‘‘Defensive Medicine in Massachusetts,’’ pp. 4–5. 69 ‘‘Overview of the 2009 ACOG Survey on Professional Liability.’’ 

‘‘[t]he available data do not support IOM’s claim of large numbers 

of deaths caused by adverse events, preventable or otherwise.’’ 64

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.65

The absence of doctors in vital practice areas is at best an inconvenience; at worst it can have deadly consequences.66 Hundreds or 

even thousands of patients may die annually due to lack of doctors.67

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.68 The American College of Obstetricians and Gynecologists has concluded that the ‘‘current medicolegal environment continues to deprive women of all ages, especially pregnant women, of their most educated and experienced 

women’s health care providers.’’ 69

As one doctor wrote recently: 

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 inVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00025 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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70Dr. Michael Lavyne, ‘‘Obamacare Will Fail Without Tort Reforn: Malpractice Insurance 

Costs Are Crippling Medicine,’’ New York Daily News (November 19, 2010). 71 Northwestern University Feinberg School of Medicine, ‘‘Illinois New Physician Workforce 

Study: Final Report November 2010) at 4. 

surance 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.70

A new 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 ‘‘[a]pproximately 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.’’ 71 Without a uniform law to control health care costs, many states will continue to 

suffer under doctor shortages. 

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 


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72 Amy H. Handlin, ‘‘Reduce Medical Liability Costs Before More Specialists Flee N.J.,’’ New 

Jersey Times (November 22, 2009). 73 ‘‘Defending the Practice of Medicine,’’ Richard E. Anderson, M.D., Archives of Internal Medicine, June 

2004. 

74 ‘‘Effective Legal Reform and the Malpractice Insurance Crisis,’’ Richard E. Anderson, M.D., 

Yale Journal of Health Policy, Law and Ethics, December 2004. 

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? 72

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.73

Neurosurgeons face liability lawsuits more often—every two years 

on average.74

OB-GYNs are another favorite target of personal injury lawyers 

with nearly three out of five OB-GYNs sued at least twice in their 


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75 American College of Obstetrics and Gynecologists Medical Liability Survey, 9/09. 76 Hospital Emergency Department Administration Survey, ‘‘Federal Medical Liability Reform,’’ 2004, the 

Schumacher Group, Alliance of Specialty Medicine, July 2005. 77 ‘‘National Report Card on the State of Emergency Medicine,’’ American College of Emergency 

Physicians, 2009. 

78 Association of American Medical Colleges Center for Workforce Studies estimates, 9/30/10. 79 ‘‘Doctor Shortage Looms as Primary Care Loses it Pull,’’ Janice Lloyd, USA Today, 8/18/ 

09. 80 ‘‘Agencies warn of coming doctor shortage,’’ Tammy Worth, Los Angeles Times, 6/7/10. 

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.75

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.76

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.’’ 77

The Association of American Medical Colleges (AAMC) has predicted that once the new health care reform provisions take effect 

in 2015, in just four short years, ‘‘the shortage of physicians across 

all specialties will more than quadruple to almost 63,000.’’ 78 Another group, the American Academy of Family Physicians, has projected the shortfall of family physicians will reach 149,000 by 

2020.79

AAMC also found the country will need 46,000 more surgeons 

and other specialists to meet demand in the next decade and that 

those living in rural or inner city locations will suffer the most severe impact. According to Dr. Atul Grover, of the AAMC, ‘‘This will 

be the first time since the 1930s that the ratio of physicians to the 

population will start to decline.’’ 80

DOCTOR SHORTAGE CONSEQUENCES: THE DYESS TRAGEDY

Regardless of the merits of any given case, there are inherent 

problems with so-called ‘‘pain and suffering’’ or noneconomic damages: they are utterly standardless, unquantifiable, and subject to 

discriminatory application based of whether or not a particular person happens to be sympathetic or unsympathetic, and even whether or not a particular case has attracted media attention. Tony 

Dyess’s injury did not receive media attention. He was in a car accident in Mississippi. There were no longer any neurosurgeons in 

the area. They had stopped practicing because they couldn’t afford 

medical professional liability insurance. It took six hours to airlift 

Tony Dyess to a hospital that could treat his brain injury. It was 

too late. The ‘‘golden hour’’ had passed, and Tony Dyess has been 

left permanently brain damaged. As Tony Dyess’ wife Leanne has 

said, ‘‘From my perspective . . . this problem far exceeds any other 

challenge facing America’s health care—even the challenge of the 


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81 Available at http://www.cdc.gov/nchs/releases/02news/hus02.htm. 82 American College of Obstetricians and Gynecologists (ACOG) news release, 11/3/06. 

uninsured. My family had insurance when Tony was injured. We 

had good insurance. What we didn’t have was a doctor. And now, 

no amount of money can relieve our pain and suffering. But knowing that others may not have to go through what we’ve gone 

through, could go a long way toward helping us heal.’’ When 

Leanne Dyess began telling this story, trial lawyers gave her false 

information about what happened the night her husband was injured, then tried to hire her. She refused. 

We all recognize that injured victims should be adequately compensated for their injuries. But too often in this debate we lose 

sight of the larger health care picture. This country is blessed with 

the finest health care technology in the world. It is blessed with the 

finest doctors in the world. People are smuggled into this country 

for a chance at life and healing, the best chance they have in the 

world. 

The Department of Health and Human Services issued a report 

recently that included the following amazing statistics.81 During 

the past half century, death rates among children and adults up to 

age 24 were cut in half. Mortality among adults 25–64 years fell 

nearly as much, and dropped among those 65 years and over by a 

third. The infant mortality rate—deaths before the first birthday— 

has plummeted 75 percent since 1950. These are amazing statistics. And they didn’t just happen. They happened because America 

produces the best health care technology and the best health care 

providers to use it. But now there are fewer and fewer doctors to 

use that miraculous technology. We have the best brain scanning 

and brain operation devices in history, and fewer and fewer neurosurgeons to use them. According to the American Board of Neurological Surgery, in 2001 there were fewer active board-certified 

neurosurgeons (2,936) than there have been in the last decade. 

Also in 2001, 4.5 times as many board-certified neurosurgeons retired as retired a decade ago (1,400 retired in 2001, only 309 retired in 1990). Only about 100–200 neurosurgeons graduate from 

residency training programs each year, but it takes about 5 years 

of post-residency to become ‘‘board certified.’’ Unlimited lawsuits 

are driving doctors out of the healing profession. They are reversing the clock. They are making us all less safe. All in the name of 

unlimited lawsuits and lawyers’ lust for their cut of unlimited 

awards. But when someone gets sick, or is bringing a child into the 

world, we can’t call our lawyers for help. 

WOMEN ARE AT RISK UNDER THE DOCTOR SHORTAGE

DRIVEN BY UNLIMITED LAWSUITS

Women pay an especially high price when it comes medical liability and access to care. According to Albert L. Strunk, M.D., deputy 

executive vice president of ACOG, ‘‘the medical liability situation 

for OB-GYNs remains a chronic crisis and continues to deprive 

women of all ages—especially pregnant women—of experienced obgyns.’’ 82 ACOG’s own data proves the point. According to their 

2009 survey, 63 percent of OBGYNs said they had made changes 

to their practice because of the risk or fear of liability claims. Between seven and eight percent have stopped practicing obstetrics 


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83 ‘‘Survey on Professional Liability, ACOG, 9/09. 84 ‘‘Doctors Urging Lawmakers to Support Tort Reform,’’ KGMB9.com. 85 ‘‘The Doctor Drain,’’ Lauren Otis, The New Jersey Monthly, 2/5/08. 86 ‘‘Center for Health Workforce Studies, cited in ‘‘no Place to be Born,’’ New York Sun, 8/25/ 

08. 87 AMA News, 3/20/06. 88 ‘‘Failure to Diagnose: Putting the Pieces Together, A Risk Management Review of Closed 

Claims in Selected Specialties 2002–2004,’’ Linda Greenwald, Doctors’ Insurance Services of 

New England, 2005. 89 ‘‘The Medical Malpractice ‘Crisis’: Trends and the Impact of State Tort Reforms,’’ Kenneth 

E. Thorpe, (January 21, 2004) at 20–30. 90 ‘‘Tort Law Tally: How State Tort Reforms Affect Tort Losses and Tort Insurance Premiums,’’ 

Nicole V. Crain, and W. Mark Crain, et al, Pacific Research Institute (2009). 91 ‘‘Tort Law Tally: How State Tort Reforms Affect Tort Losses and Tort Insurance Premiums,’’ 

Nicole V. Crain, and W. Mark Crain, et al, Pacific Research Institute (2009). 

altogether. In fact, ACOG found that the average retirement age of 

practicing obstetrics was 48. Once upon a time, before the medical 

lawsuit abuse crisis, that was considered mid-point in a doctor’s career.83

Looking state by state, the picture is even more alarming. For 

example in 2007, Hawaiian women faced the harsh reality that 42 

percent of the state’s OB-GYNs had stopped providing prenatal 

care.84 Dr. Francine Sinofsky, an OB-GYN in East Brunswick, N.J., 

says two of her practice’s seven members no longer practice obstetrics due to the cost of medical liability. One who practices gynecology only pays $14,000 a year for liability insurance while another who practices obstetrics as well pays more than $100,000.85

In 2008, 1,500 counties in America, including eight counties in New 

York alone, did not have a single obstetrician as liability issues 

chased good doctors out of obstetrics.86

But the negative impact of lawsuit abuse on women’s health goes 

beyond obstetrics. Today, the number of radiologists willing to read 

mammograms is shrinking, exacerbated by the decreasing number 

of medical residents choosing radiology as their specialty. The reason is simple. A failure to diagnose properly is the number one allegation in most liability lawsuits.87 That makes radiologists the 

number one group of physicians affected.88 Abuse of the litigation 

system is putting women at risk. 

PROVEN REFORMS

The states have proven that legal reform works. While Democrats in Washington talk about the need to study the problem, 

states have acted to address it. Several states have limited noneconomic damages—such as those for ‘‘pain and suffering—and dramatically lessened the burden of lawsuits. In states with such limits, premiums are 17 percent lower than they are in states without 

them.89

PROVEN REFORMS IN CALIFORNIA

States also have had success with a variety of other reforms. A 

comprehensive study of these reforms suggests that attorney-fee 

limits, such as those in California, are particularly effective.90 The 

cumulative effect of all state reforms put together could be as much 

as a 74 percent reduction in premiums.91

California’s Medical Injury Compensation Reform Act (called 

‘‘MICRA’’) has proved immensely successful in increasing access to 

affordable medical care in California since it was signed into law 

in 1975 by Governor Jerry Brown. It has kept California medical 


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92See http://www.micra.org/about-micra/docs/micralaccesslandlaffordability.pdf. 93Orange County Register (October 22, 1997). 

malpractice insurance rates consistently much lower than the average in the rest of the country.92 MICRA’s reforms, which are included in the HEALTH Act, include: a $250,000 cap on noneconomic (‘‘pain and suffering’’) damages; limits on the contingency 

fees lawyers can charge, so larger percentages of awards go to victims, not lawyers; and authorization for defendants to introduce 

evidence showing the plaintiff received compensation for losses 

from outside sources (to prevent double recoveries). 

Some critics claim that a California automobile insurance reform 

measure called Proposition 103 that required a ‘‘rollback’’ of insurance premiums—and not California’s health care litigation reforms—have controlled medical professional liability premiums in 

that state. However, according to the Orange County Register, ‘‘a 

rollback [under Proposition 103] never took place because the [California Supreme] court amended Prop. 103 to say that insurers 

could not be forced to implement the 20 percent rollback if it would 

deprive them of a fair profit.’’ 93 Further, since Proposition 103 

went into effect, no medical professional liability insurer has been 

denied a requested premium increase. 

COMMENTS OF SUPPORTERS OF CALIFORNIA’S HEALTH CARE

LITIGATION REFORMS (ON WHICH THE HEALTH ACT IS MODELED)

Cruz Reynoso, Democratic Vice Chairman of the U.S. Commission on Civil Rights (appointed by former Senate Majority Leader 

George Mitchell in 1993), Professor of Law at UCLA, and former 

Justice of the California Supreme Court: 

Medical insurance has been going up. I think there’s no question that what the legislature did and continues to do has had 

an influence on keeping those expenses down and that’s a very 

important public policy. . . . Publicly-funded medical centers 

were very supportive of the continued protection of MICRA because if their own insurance rates would go up they would be 

less able to serve the poor. . . . I personally have favored having as much access to the courts as possible, but at the same 

time you have to be careful that it doesn’t do so in a way that 

is destructive, for example, in the medical field, destructive of 

the ability of society to respond to the medical needs of the 

people. 

Nancy Sasaki, President and CEO of Planned Parenthood, Los 

Angeles: 

If the caps [on non-economic damages] in MICRA were to be 

increased, you actually would begin to see kind of a domino effect. . . . If insurance costs for the physicians go up they typically will then, as any business would, look at what services 

are their highest risks, which services are costing them the 

most, and they may no longer provide that. And that’s happened in the past, where physicians have stopped providing obstetric care because of costs. 

Donna Stidham, Director of Managed Care and Patient Services, 

AIDS Health Care Foundation: 


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94Fein v. Permanent Medical Group, 38 Cal.3d 137, 163 (1985); see also Western Steamship 

Lines, Inc. v. San Pedro Peninsula Hospital 8 Cal.4th 100, 112 (1984). 95Fein v. Permanent Medical Group, 38 Cal.3d 137, 163 (1985). 96 Id. 97 ‘‘Tort Reform: A Victory for Patient Access,’’ Texas Medical Association (July 5, 2006); 

‘‘Texas-Style Health Care Reform is Bigger and Better,’’ Sally Pipes, San Francisco Examiner 

(July 24, 2009). 98Peggy Venable, ‘‘Tort Reform? We’ve Already Done It,’’ Washington Post (September 16, 

2009). 99 Id. 

[An] increase in the MICRA cap . . . would increase our premiums phenomenally. In a single clinic setting it could probably increase their premiums maybe twenty or thirty thousand 

dollars. For multiple physicians, I’d hate to even guess, but it’d 

be in the hundreds of thousands, which would take away from 

direct patient care. . . . So it would directly take away from 

care, from the patients. You’d see us perhaps not being able to 

admit all types of patients. Right now we can take any kind 

of patient, whether they have the ability to pay or not. 

CALIFORNIA SUPREME COURT STATEMENTS ON THE PURPOSES

OF MICRA’S LIMIT ON NONECONOMIC DAMAGES

The California Supreme Court has stated the following purposes 

of California Civil Code section 3333.2, which limits recovery of 

noneconomic damages to $250,000: 

One purpose is to provide a more stable base on which to calculate insurance rates’’ by eliminating the ‘‘unpredictability of 

the size of large noneconomic damage awards, resulting from 

the inherent difficulties in valuing such damages and the great 

disparity in the price tag which different juries placed on such 

losses.’’ 94

Another purpose is to ‘‘promote settlements by eliminating ‘the 

unknown possibility of phenomenal awards for pain and suffering that can make litigation worth the gamble.’ ’’ 95

Another purpose is to be fair to medical malpractice plaintiffs 

by ‘‘reduc[ing] only the very large noneconomic damage 

awards, rather than to diminish the more modest recoveries 

from pain and suffering and the like in the great bulk of 

cases.’’ 96

PROVEN REFORMS IN TEXAS

After Texas adopted a new liability system in 2003, medical liability premiums fell dramatically, and thousands of new doctors 

flooded into the state.97 Communities in Texas that once did not 

have primary or specialty care doctors now have a full complement 

of physicians. 

A 2008 study from the Perryman Group found that perhaps the 

most visible economic impact of the lawsuit reforms are the benefits experienced by Texans who have better access to high-quality 

healthcare.98 Doctors and hospitals are using their liability insurance savings to expand services and initiate innovative programs; 

those savings have allowed Texas hospitals to expand charity care 

by 24 percent.99

The total impact of tort reforms implemented since 1995 includes gains of $112.5 billion in spending each year as well as almost 


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100 Id. 101 Id. 102 Id. 103Wall Street Journal (editorial), ‘‘Loser Pays, Everyone Wins’’ (December 15, 2010). 

499,900 jobs in the state.100 The fiscal stimulus to the state from 

judicial reforms is almost a $2.6 billion per year increase in state 

revenue.101 In addition, these reforms are responsible for approximately 430,000 individuals having health insurance than would 

otherwise, and there has been an increase in the number of doctors, particularly in regions which have been facing severe shortages.102

As the Wall Street Journal has observed: 

Before the reform, Texas was a kind of holy place on the tort 

bar pilgrimage. Now it’s a Mecca for doctors, especially the 

emergency physicians, obstetricians and surgical specialists 

who elsewhere can face blue-sky malpractice premiums. Liability rates have fallen by 27.5% on average since 2003. The number of doctors applying to practice in Texas has increased 60%, 

even as the overall population grew by 14%. 

All of this is helping to end an acute Lone Star physicians 

shortage, especially in rural areas. Twenty-three counties now 

have their first E.R. doctor, 10 their first OB-GYN. Hospitals 

are reinvesting the malpractice savings in scarce services like 

neurosurgery and neonatal units and expanding access to care. 

This Texas success has opened eyes in nearby Oklahoma, 

where even Democrats have been forced to agree to some legal 

reforms.103

BARRIERS TO REFORM

The reason Democrats continue to refuse to add serious medical 

lawsuit reform to their health care legislation remains purely political, as was recently revealed by former DNC Chair Howard Dean. 

At a recent health care town hall meeting hosted by Rep. Jim 

Moran (D-VA), Dean responded to an angry constituent who wondered why a supposedly comprehensive ‘‘reform’’ of the health-care 

system does not include tort reform to lower costs of malpractice 

insurance and reduce defensive medicine. Dean responded remarkably candidly, stating: 

‘‘This is the answer from a doctor and a politician,’’ said Dean. 

‘‘Here is why tort reform is not in the bill. When you go to pass 

a really enormous bill like that the more stuff you put in, the 

more enemies you make, right? And the reason why tort reform is not in the bill is because the people who wrote it did 

not want to take on the trial lawyers in addition to everybody 

else they were taking on, and that is the plain and simple 

truth. Now, that’s the truth.’’ 

Moreover, the Democrats’ health care law’s offer of HHS ‘‘demonstration projects’’ on tort reform, rings hollow given that the cabinet secretary tasked with implementing this proposal for demonstration projects is Kathleen Sebelius. Before she was governor 

of Kansas and the insurance commissioner of Kansas, she spent 

eight years as the head of the Kansas Trial Lawyers Association, 

now the Kansas ‘‘Association for Justice.’’ The KAJ’s total opposiVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00033 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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104 ‘‘National Voter Survey: Health Care Reform and the Legal System 2009,’’ Clarus Research 

Group (August 2009). 105 Ricardo Alonso-Zaldivar and Trevor Tompson, ‘‘AP: Support for Curbs on Malpractice Lawsuits,’’ The Associated Press (November 19, 2009). 106 Rasmussen Research, 12/2/09. 

tion to reform is highlighted on its website. And Sebelius is also 

the state executive who, according to the New York Times, ‘‘failed 

to make significant improvement in health coverage or costs during 

her two terms as governor.’’ 

The top contributor to President Obama’s presidential campaign 

was the legal industry, whose donations came to more than $43 

million. More than 80 percent of the money given to Congress by 

lawyers, mostly from the plaintiffs’ bar, went to Democrats—almost 

$22 million. 

More recently, when President Obama spoke to the American 

Medical Association’s convention in June of this year, he told the 

audience ‘‘I’m not advocating caps on malpractice awards.’’ 

SUPPORT FOR REFORM: THE AMERICAN PEOPLE

The American people are demanding legal reform. A recent survey found that 83 percent of Americans believe that reforming the 

legal system needs to be a part of any health care reform plan.104

As the Associated Press recently reported: 

Most Americans want Congress to deal with malpractice lawsuits driving up the cost of medical care, says an Associated 

Press poll. Yet Democrats are reluctant to press forward on an 

issue that would upset a valuable political constituency—trial 

lawyers—even if President Barack Obama says he’s open to 

changes. The AP poll found that 54 percent of Americans favor 

making it harder to sue doctors and hospitals for mistakes taking care of patients, while 32 percent are opposed . . . Support 

for limits on malpractice lawsuits cuts across political lines, 

with 58 percent of independents and 61 percent of Republicans 

in favor. Democrats are more divided. Still, 47 percent said 

they favor making it harder to sue, while 37 percent are opposed. The survey was conducted by Stanford University with 

the nonprofit Robert Wood Johnson Foundation . . . In the 

poll, 59 percent said they thought at least half the tests doctors 

order are unnecessary, ordered only because of fear of lawsuits.105

In a poll done by the Health Coalition on Liability and Access 

(HCLA) in October 2009, 69 percent of Americans said they wanted 

medical liability reform included in health care reform legislation. 

Seventy-two percent said that their access to quality medical care 

is at risk because lawsuit abuse forces good doctors out of the practice of medicine. A Rasmussen poll done at the same time found 

that 57 percent of people favored limiting jury awards.106

The American people clearly understand the issue of liability reform and the motives behind the raft of lawsuits trial lawyers are 

bringing to stop reform in its tracks. The 

Health Coalition on Liability and Access poll done in October 

2009 found that by a wide margin, 70 percent of Americans support 

full payment for lost wages and medical expenses and reasonable 

limits on awards for non-economic ‘‘pain and suffering.’’ Sixty-eight 


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107Stanley Goldfarb, ‘‘The Malpractice Problem: We Can’t Have Health Care Reform Without 

Tort Reform,’’ The Weekly Standard (October 27, 2009). 108Department of Health and Human Services, ‘‘Confronting the New Health Care Crisis: Improving Health Care Quality and Lowering Costs by Fixing Our Medical Liability System’’ (July 

24, 2002) at 9–10 (‘‘These mega-awards for non-economic damages have occurred (as would be 

expected) in states that do not have limitations on the amounts that can be recovered.’’). 109See Harvard Medical Practice Study to the State of New York, Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York at 11–5 

(1990) (‘‘[T]he tort system imposes the costs of defending claims on [health care] providers who 

may not even have been involved in an injury, let alone a negligent injury.’’). 110See D. Studdert et al., ‘‘Negligent Care and Malpractice Claiming Behavior in Utah and 

Colorado,’’ 38 Medical Care 3: 250–60, 250 (2000) (‘‘Eighteen patients from out study sample 

filed claims: 14 were made in the absence of discernable negligence and 10 were made in the 

absence of any adverse event . . . The poor correlation between medical negligence and malpractice claims that was present in New York in 1984 is also present in Utah and Colorado in 

1992 . . . [W]hen a physician is sued, there is a high probability that it will be for rendering 

nonnegligent care.’’) (emphasis added). 111See ‘‘Opinion Survey of Medical Professional Liability,’’ JAMA 164:1583–1594 (1957). 112See R. Bovbjerg, ‘‘Medical Malpractice: Problems & Reforms,’’ The Urban Institute, Intergovernmental Health Policy Project (1995). 113See Joseph T. Hallinan, ‘‘St. Paul Gradually Will Pull Out Of Malpractice-Insurance Sector,’’ The Wall Street Journal (December 13, 2001) at B2. 114 ‘‘St. Paul to Exit Medical Malpractice, Pose $900 Million Charge,’’ Best’s Insurance News 

(December 12, 2001). 115See Meg Green, ‘‘Med Malcontent: Top medical malpractice writer St. Paul Cos. Abandons 

the Unprofitable Business. Who Will Fill the Void?’’ Best’s Review (February 1, 2002) at 12. 

percent of those polled also favor a law to limit the fees personal 

injury attorneys can take from an award or settlement. 

BLAMING THE INSURANCE COMPANIES IS OFTEN A RED HERRING

As Dr. Stanley Goldfarb, associate dean of clinical education at 

the University of Pennsylvania School of Medicine, has written: 

‘‘The president points to for-profit insurance companies [as the 

source of the problem], but for-profit insurance companies only 

make up 25 percent of the system and they are not that profitable, 

ranking 85th among all U.S. industries. [Insurance] ‘Reform’ will 

redistribute the money, not reduce the overall costs. There is much 

that can be done to make our system more efficient. Tort reform 

is a great place to start.’’ 107

The Department of Health and Human Services concluded that 

the average award in medical malpractice cases has risen 76% in 

recent years, and that ‘‘mega-awards’’ for ‘‘pain and suffering’’ have 

occurred in states without any limits on what a plaintiff can recover.108 Large numbers of these cases are meritless. The Harvard 

Medical Practice Study, for example, found that over half of the 

filed medical professional liability claims they studied were brought 

by plaintiffs who suffered either no injuries at all, or, if they did, 

such injuries were not caused by their health care providers, but 

rather by the underlying disease.109 These findings have been confirmed.110 Also, before the 1960s, only one physician in seven had 

ever been sued in their entire lifetime,111 whereas today’s rate is 

about one in seven per year.112

The medical insurance crisis caused insurers like St. Paul—an 

insurer of 42,000 doctors, 750 hospitals, 5,800 health care facilities, 

and 72,000 health care providers such as nurses—to leave the medical professional liability insurance business entirely.113 In the 

words of Thomas A. Bradley, chief financial officer of St. Paul, the 

medical malpractice insurance crisis was ‘‘basically another World 

Trade Center loss for us this year.’’ 114 Other medical malpractice 

insurers have also left the market,115 and many others have become insolvent. Licensed carriers’ medical professional liability inVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00035 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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116See American Medical Association, ‘‘Trends Report: Medical Professional Liability Insurance’’ (April 2002) at 5. 117See Physician Insurers Association of America, ‘‘Bordering on Malpractice: Serious Errors 

Found in Consumer Federation of America Report on Medical Liability Insurance’’ (May 9, 

2002). 118Physician Insurers Association of America. 119 42 U.S.C.A. § 280g-15(c)(2)(g). 120 42 U.S.C.A. § 280g-15(f)(2)(A). 

surance business has, on average, been unprofitable since 1990– 

2000.116

The claim that sharp increases in medical liability insurance 

rates are due to insurer losses in the stock market is also dubious, 

as less than 15% of the assets of medical liability insurance companies are stocks.117 Additionally, 60% of the doctors in the United 

States are insured by insurance companies that are owned and operated by other doctors and which operate primarily for their benefit.118

THE ‘‘PATIENT PROTECTION AND AFFORDABLE CARE ACT’’ (PPACA)

IS A TRIAL LAWYERS’ BAILOUT BILL

The ‘‘Patient Protection and Affordable Care Act’’ (PPACA), 

passed by Democrats during the last Congress, not only fails to 

contain any of the tort reforms the CBO concluded would save at 

least $54 billion in health care costs, but it also contains a provision that explicitly allows trial lawyers to ‘‘opt-out’’ of any alternative liability system, meaning if their frivolous lawsuit is limited 

by the alternative system, they can simply ‘‘opt-out’’ of the alternative system and file in court like they always have. Section 

10607 of the Democrats’ bill states that any states’ ‘‘proposed alternative’’ must ‘‘provide[] patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time 

and to pursue other options, including litigation, outside the alternative.’’ 119 So the bill literally prohibits any alternative to litigation, or any new limits on litigation, from being enforced. 

Also, the CBO concluded that caps on ‘‘non-economic damages’’ 

would save at least $54 billion in health care costs. Not only are 

any such caps prevented from being enforced under the legislation, 

but the legislation requires that the Secretary of Health and 

Human Services provide states with ‘‘guidance on [the award] of 

non-economic damages . . . in determining appropriate payment.’’ 120 Consequently, not only does this legislation prevent 

states from taking part in the demonstration projects if they seek 

to enforce the reforms the CBO said would save $54 million; it also 

requires the Secretary of Health and Human Services to encourage 

states to adopt lawsuit damages criteria the CBO has concluded 

would raise health care costs, not lower them. That’s not tort reform. It’s tort deform. 

Further, because the health care bill signed into law by President Obama calls for the Federal Government and its regulators to 

create all manner of new standards and guidelines for medical professionals to follow, it opens up many more opportunities for trial 

lawyers to sue doctors if they deviate at all from those Federal 

standards and guidelines. The House-passed version of the legislation, H.R. 3962, contained a provision that made clear that the new 

government guidelines provided for by the bill ‘‘shall not be construed to establish the standard of care or duty of care owed by 


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121See H.R. 3962 (111th Cong. 1st Sess.) (passed November 7, 2009) (SEC. 261. CONSTRUCTION REGARDING STANDARD OF CARE. (a) IN GENERAL.—The development, recognition, 

or implementation of any guideline or other standard under a provision described in subsection 

(b) shall not be construed to establish the standard of care or duty of care owed by health care 

providers to their patients in any medical malpractice action or claim . . . ’’). 122Senator Lieberman, floor statement on the Common Sense Product Liability and Legal Reform Act (April 27, 1995). 123See Rept. 107–693 pt. 1 (107th Cong., 2d Sess.) at 13 and n.14. 

health care providers to their patients in any medical malpractice 

action or claim.’’ 121 But the bill signed into law by President 

Obama fails to contain such a provision, which can only be read as 

an invitation to trial lawyers to sue doctors whenever they deviate 

one iota from whatever guidelines or standards are handed down 

from Washington, D.C. That’s a step backward for legal reform, 

and yet another cause of defensive medicine. 

REFORM MUST COME AT THE FEDERAL LEVEL

The HEALTH Act appropriately addresses a national problem 

because doctors are moving from state to state based on which 

states have enacted reasonable legal reforms. Doctors should be 

able to practice anywhere there are patients, not just where certain 

states have enacted reasonable legal reforms that allow them to 

practice. 

As Senator Lieberman has described, the crisis is national in 

scope and warrants a Federal response: ‘‘I did not always support 

a national or Federal approach to product liability reform or tort 

reform generally, and I can understand the hesitancy, particularly 

of some of the Members, to support Federal involvement in what 

traditionally has been a province of the States. . . . So I listened 

to [] folks, and I came to understand the necessity of Federal action 

and, of course, to understand the reality and appreciate the reality 

that we are one country; that products travel from State to State; 

that people using them travel from State to State; and that there 

is a crying need out there in the interest of every State and our 

country, our economy, the equity of our society, to build a floor of 

fairness, a common system that will protect the rights of all.’’ 122

Over 20 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 is the 

only means of addressing the state’s current crisis in medical professional liability and restoring patients’ access to health care. 

Many more may do so unless Congress acts under its Supremacy 

Clause and Commerce Clause authority to let doctors treat patients 

wherever they are, not just where states have enacted legal reforms that can be upheld under their state constitutions.123

THE NEED FOR FEDERAL LAWSUIT REFORM THAT APPROPRIATELY USES

CONGRESS’ COMMERCE CLAUSE POWER

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 


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124The Federalist Papers, Federalist No. 42 at 267–68 (Clinton Rossiter ed., 1961) (emphasis 

added). 125 At the time of the Founding and soon thereafter, out-of-control state litigation was kept 

in check in the states by strict limits on lawyers’ fees, which no longer prevail. During the 

American Colonial period, lawyers were roundly despised and subjected to strict limits on lawsuits. According to one historian, ’’[i]n every one of the Colonies, practically throughout the Seventeenth Century, a lawyer or attorney was a character of disrepute and of suspicion. . . . In 

many Colonies, persons acting as attorneys were forbidden to receive any fee . . . in all, they 

were subjected to the most rigid restrictions as to fees and procedure.’’ Charles Warren, A History of the American Bar 4 (William S. Hein & Co., Inc. 1913). Early American observer Benjamin Austin wrote, ‘‘if we look through the different counties throughout the Commonwealth, 

we shall find that the troubles of the people arise principally from debts enormously swelled 

by tedious law-suits.’’ Benjamin Austin, Observations on the Pernicious Practice of the Law 4 

(1786). As one historian summarized the situation in early America, ‘‘[l]awsuits were often 

begun or continued for no other purpose than to embarrass an enemy by making him incur legal 

costs.’’ Anton-Hermann Chroust, The Rise of the Legal Profession in America: The Colonial Experience vol. 1, 82 (U. of Okla. Press 1965). Attorneys were so despised in early America that 

they often inspired violence. As one historian wrote: 

During Shay’s Rebellion, in 1786 people actually demanded that all inferior courts and 

all lawyers be entirely eliminated . . . In Vermont and New Hampshire vociferous demands were made to suppress the legal profession completely, or at least to reduce the 

number of lawyers and, incidentally, to cut down substantially the usual legal fees. In 

Vermont, where the general populace was particularly vehement in its actions and 

denouncements, courthouses were set afire . . . As early as 1786 the town of Braintree, 

Massachusetts, passed a resolve ‘‘to crush . . . that order of Gentlemen denominated 

Lawyers . . . whose . . . conduct appears . . . to tend rather to the destruction than 

the preservation of this Commonwealth.’’ 

Anton-Hermann Chroust, The Rise of the Legal Profession in America: The Revolution and the 

Post-Revolutionary Era vol. 2, 26–27 (U. of Okla. Press 1965) (citing Laws and Resolves of 

Mass., c. 23, § 2, (1785); John Adams, The Adams Papers: Diary and Autobiography of John 

Adams vol. 1, 342 (1902); John Quincy Adams, Three Episodes of Massachusetts History 897 

(1893)). 

Fear that the legal profession would abuse its power to generate lawsuits was also reflected 

in limits on attorneys’ fees. In 1784, Connecticut by statute limited attorneys’ fees according to 

a ‘‘Table of Fees.’’ Acts and Laws of the State of Connecticut in America 10–11 (1784). In 1792, 

the only means of addressing the state’s current crisis in medical 

professional liability and restoring patients’ access to health care. 

Further, Federal legislation is needed to stem the flow of doctors 

from one state to another, as they flee states to avoid excessive liability costs. Doctors should feel free to practice medicine wherever 

they want in this country, and patients everywhere should be able 

to obtain the medical care they need. 

While tort reform is usually adopted at the state level in the first 

instance, it can also be adopted at the Federal level, when the effects of tort law present a threat to state autonomy. Indeed, James 

Madison described the purpose of the Constitution’s Commerce 

Clause as follows: ‘‘A very material object of this power [of Congress] was the relief of the States which import and export through 

other States, from the improper contributions levied on them by 

the latter. Were these [States] at liberty to regulate the trade between State and State, it must be foreseen that ways would be 

found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the 

makers of the latter and the consumers of the former. We may be 

assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common 

knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of 

the public tranquility.’’ 124 Clearly, Madison predicted that states 

would see in the future the rise of new forms of rules and regulations that would increase the costs of things nationwide, but which 

could not be foreseen at the time of the Founding, and that Congress would needs its Commerce Clause authority to counter those 

cost-increasing influences.125 Indeed, one modern manifestation of 


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Georgia regulated attorneys’ fees as follows: for ‘‘each cause commenced and tried in the superior or inferior courts,’’ eighteen shillings and eight pence. A Digest of the Laws of the State 

of Georgia 476 (1800). In 1714, Massachusetts fixed attorneys’ fees at twelve shillings ‘‘at the 

superiour court of judicature . . . and at the inferiour court, ten shillings, and no more.’’ Acts 

and Laws, of Her Majesties Province of the Massachusetts-Bar in New-England 185 (1714). In 

1719, Rhode Island attorneys’ fees were fixed at a maximum of twelve shillings. Charter Granted by His Majesty King Charles the Second to the Colony of Rhode Island and Providence-Plantations in America 21 (1719). In 1766 these fees were reduced to a maximum of five shillings. 

Acts and Laws of His Majesty’s Colony of Rhode-Island and Providence-Plantations in America 

98 (1767). By 1748, the New Jersey Legislature passed a statute establishing an elaborate 

schedule of lawyer’s fees. The Acts of the General Assembly of the Province of New-Jersey 167 

(Allinson ed. 1776). In 1778, in Virginia, attorneys’ fees were fixed by statute in the General 

Court and the High Court of Chancery depending on the nature of the action. Anton-Hermann 

Chroust, The Rise of the Legal Profession in America: The Revolution and the Post-Revolutionary Era vol. 2, 261–62 (U. of Okla. Press 1965) (citing 9 Statutes at Large of Virginia 529 

(Hening ed. 1823)). In 1795, in Pennsylvania, attorneys’ fees in the Court of Common Pleas were 

set for filing a lawsuit and entering an appearance as follows: ‘‘if the suit is ended before or 

during the sitting of the first court,’’ at $1.67; for every suit ‘‘ended after the first court and 

before judgment,’’ $3.34; and for ‘‘every suit prosecuted to judgment,’’ $4.00. 15 Statutes at 

Large of Pennsylvania, c. 1863, § 1, 360 (1911). In 1801, New York enacted the comprehensive 

Act Regulating the Fees of Several Officers and Ministers of Justice within the state, which included limits on attorneys’ fees. 5 Laws of the State of New York Passed at the Session of the 

Legislature Held in the Year 1801, c. 190, 553–71 (1871). In 1810, in Maryland, a statute was 

enacted providing ‘‘no attorney of any of the county courts shall be authorized to charge more 

. . . than the sum of three dollars and thirty-three cents and one third of a cent in any one 

suit.’’ Laws of Maryland of 1810, c. 126, § 2; 1 The General Public Statutory Law of Maryland 

601 (1840). Delaware had its own unique method for reducing litigiousness. In 1793, Delaware 

passed the Act for Regulating and Establishing Fees providing that for all pleadings in an action 

subsequent to a declaration, the fee would be one cent for every written line, twelve words to 

a line. Anton-Hermann Chroust, The Rise of the Legal Profession in America: The Revolution 

and the Post-Revolutionary Era vol. 2, 256 (U. of Okla. Press 1965). 126The Federalist Papers, Federalist No. 23 at 155 (Clinton Rossiter ed., 1961). 

the problem Madison foresaw is that, today, some states’ tort law 

allows unbounded lawsuits that increase the costs of selling products or services (including medical services) that cross into their jurisdictions. There is even a word for this modern phenomenon. It 

is called the ‘‘tort tax,’’ and when it’s applied to national industries, 

it’s passed on to consumers everywhere. The result is higher prices, 

and potentially lost jobs, across multiple states, or nationwide. 

When that happens, Congress can, and often should, enact Federal 

tort reform to preserve federalism principles. While some argue 

that businesses can avoid tort liability by simply avoiding states 

that have oppressive tort laws, James Madison clearly rejected that 

argument against Congressional action, arguing instead that Congress should have the power to enact rules that allow businesses 

to enter into a state ‘‘jurisdiction’’ without having to worry that 

doing so would dramatically increase the price of their products 

elsewhere. Likewise, Alexander Hamilton wrote in the Federalist 

Papers that ‘‘The government of the Union must be empowered to 

pass all laws, and to make all regulations which have relation to 

them. The same must be the case in respect to commerce, and to 

every other matter to which its jurisdiction is permitted to extend.’’ 126

James Madison and the Founders clearly supported the power of 

the People’s national representatives in Congress to preserve citizens’ access to privately-provided goods and services. Madison said, 

in the seminal speech he gave defending the Commerce Clause at 

the Virginia convention called to ratify the Constitution, that ‘‘All 

agree that the general government ought to have power for the regulation of commerce . . . There are regulations in different states 

which are unfavorable to the inhabitants of other states . . . This 

will not be the case when uniform regulations will be made’’ by 


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127 James Madison, ‘‘Speech in the Virginia Ratifying Convention’’ in Madison: Writings (1999) 

at 378–79. 128 City of New York v. Beretta Corp., 524 F.3d 384, 394 (2008), cert. denied 129 S.Ct. 1579 

(2009). 129 Congress has acted many times to enact Federal tort reforms, including the Volunteer Protection Act of 1997, which creates immunity for volunteers to nonprofits or government bodies. 

42 U.S.C.A. §§ 14501 et seq. Congress has also passed the Partial-Birth Abortion Ban Act of 

2003, which prohibited a specific medical procedure that involves a particularly gruesome form 

of abortion procedure. That Act was upheld by the Supreme Court in Gonzales v. Carhart, 550 

U.S. 124 (2007), in which the Court upheld Congress’ ‘‘legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession,’’ id. at 166, concluding 

that ‘‘Considerations of marginal safety, including the balance of risks, are within the legislative 

competence when the regulation is rational and in pursuit of legitimate ends.’’ Id. 130See, e.g., Employers Liability Act of 1908, 35 Stat. 65, c. 149; Price-Anderson Act, 42 U.S.C. 

§ 2210(e); Atomic Testing Liability Act, 42 U.S.C. § 2212; National Childhood Vaccine Injury 

Compensation Act of 1986 

42 U.S.C. §§ 300aa–1–300aa–34; Comprehensive Environmental Response, Compensation, and 

Liability Act (Superfund); General Aviation Revitalization Act, P.L. 103–298, 49 U.S.C. § 40101 

note; Cruise Ship Liability, P.L. 104–324, § 1129; Bill Emerson Good Samaritan Food Donation 

Act, P.L. 104–210, 42 U.S.C. § 1791; Volunteer Protection Act of 1997, P.L. 105–1, 42 U.S.C. 

§§ 14501–14505; Amtrak Reform and Accountability Act of 1997, P.L. 105–134, § 161, 49 U.S.C. 

§ 28103; Aviation Medical Assistance Act of 1998, P.L. 105–170 (1998), 49 U.S.C. § 44701 note; 

Biomaterials Access Assurance Act of 1998, P.L. 105–230, 21 U.S.C. §§ 1601–1606; Y2K Act, P.L. 

106–37, 15 U.S.C. §§ 6601–6617; Cardiac Arrest Survival Act of 2000, P.L. 106–505, § 404, 42 

U.S.C. § 238q; Air Transportation Safety and System Stabilization Act, P.L. 107–42, § 201(b); 

September 11th Victim Compensation Fund of 2001, 49 U.S.C. § 40101 note; Paul D. Coverdell 

Teacher Protection Act of 2001, P.L. 107–110, §§ 2361–2368; Multiparty, Multiforum Trial Jurisdiction Act of 2002, P.L. 107–273, § 11020; Homeland Security Act of 2002, P.L. 107–296, §§ 304, 

863, 890, 1201, 1402, and 1714–1717. 131 550 U.S. 124 (2007). 132 Id. at 166. 133 Id. 

Congress.127 Indeed, that’s what Congress did when it passed the 

Protection of Lawful Commerce in Arms Act in 2006, which prohibits lawsuits in either state or Federal court against the firearms 

industry for damages resulting from the unlawful use of firearms 

by others. That Federal tort reform law was upheld as coming 

within Congress’ Commerce Clause authority by the Second Circuit 

Court of Appeals, which said ‘‘We find that Congress has not exceeded its authority in this case, where there can be no question 

of the interstate character of the industry in question and where 

Congress rationally perceived a substantial effect on the industry 

of the litigation that the Act seeks to curtail.’’ 128 The same holds 

true where there can be no question of the interstate character of 

the health care industry and where Congress rationally perceives 

a substantial effect lawsuits have on that industry.129 Congress has 

enacted many Federal tort reform statutes.130

Of note, Congress passed the Partial-Birth Abortion Ban Act of 

2003, which prohibited a specific medical procedure that involves 

a particularly gruesome form of abortion procedure, under its Commerce Clause authority. That Act was upheld by the Supreme 

Court in Gonzales v. Carhart,131 in which the Court upheld Congress’ ‘‘legislative power, exercised in this instance under the Commerce Clause, to regulate the medical profession,’’ 132 concluding 

that ‘‘Considerations of marginal safety, including the balance of 

risks, are within the legislative competence when the regulation is 

rational and in pursuit of legitimate ends.’’ 133

Also, Federal tort reform regarding vaccine liability has been the 

law for several decades. In the late 1980’s, Congress enacted the 

National Vaccine Injury Compensation Program, 42 U.S.C. Section 

300aa-10 through -34, a Federal program that preempts state court 

tort awards, to protect vaccine manufacturers from bankruptcy in 

the face of otherwise unlimited state tort jury awards. The Act 

overrides the state court system, putting compensation decisions in 


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134 Henry Cohen, Legislative Attorney, American Law Division, CRS Report to Congress, Federal Tort Reform Legislation: Constitutionality and Summaries of Selected Statutes (February 

26, 2003) at 1. 135 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. 136 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 69. 137 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 72. 

the hands of a congressionally created Office of Special Masters, 

which currently consists of one Chief Special Master and seven Associate Special Masters who are appointed by the U.S. Court of 

Federal Claims to serve for four-year terms. To this day, that Act 

has never been successfully challenged on constitutional grounds. 

If it were, millions of children could be forced to go without necessary vaccines because manufacturers would refrain from providing them. Note that while the Federal vaccine compensation 

program completely overrides state courts and juries, the HEALTH 

does not go nearly so far because the HEALTH Act allows state 

lawsuits to proceed, but with reasonable limits on a narrow category of damages and other process reforms. 

The Congressional Research Service also ‘‘concludes that enactment of tort reform legislation generally would appear to be within 

Congress’s power to regulate commerce, and would not appear to 

violate principles of due process or federalism . . . In concluding 

that Congress has the authority to enact tort reform ‘generally,’ we 

refer to reforms that have been widely implemented at the state 

level, such as caps on damages and limitations on joint and several 

liability and on the collateral source rule.’’ 134 Caps on damages 

and limitations on joint and several liability are precisely the reforms contained in the HEALTH Act. 

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 HEALTH Act, as the 

HEALTH Act provides that ‘‘No provision of this Act 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 compensatory or punitive damages (or 

the total amount of damages) that may be awarded in a health care 

lawsuit, regardless of whether or not such monetary amount is 

greater or lesser than is provided for under this Act . . . ’’ Some 

states have limited noneconomic damages in medical malpractice 

actions, but at levels higher than $250,000. Some states place aggregate limits on medical malpractice awards. Those limits would 

be preserved under the HEALTH Act. 

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,’’ 135 ‘‘provide for periodic payments of future economic damages,’’ 136 ‘‘schedule [limit] contingency fees’’ 137 of attorneys, and ‘‘limit non-ecoVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00041 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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138 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 66. 139 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 66. 140 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 21–24. 141 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 36–37, 39– 

40. 

nomic damages to a fair and reasonable amount.’’ 138 Indeed, regarding the limit on non-economic damages, the report concluded: 

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.’’ 139

All of these recommended reforms are part of H.R. 5, the 

HEALTH Act. The report also contains an extensive discussion of 

the harmful effects tort law has on ‘‘medical malpractice’’ insurance,140 and a discussion and charts describing the impact of rising 

malpractice jury awards.141

STATE LAWS THAT LIMIT DAMAGES TO SPECIFIC AMOUNTS

ARE PRESERVED UNDER THE HEALTH ACT

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 HEALTH Act, as the 

HEALTH Act provides that ‘‘No provision of this Act shall be construed to preempt . . . any State statutory limit (whether enacted 

before, on, or after the date of the enactment of this Act) on the 

amount of compensatory or punitive damages (or the total amount 

of damages) that may be awarded in a health care lawsuit, whether 

or not such State limit permits the recovery of a specific dollar 

amount of damages that is greater or lesser than is provided for 

under this Act. . . .’’ 

What follows is a list of states that have specific limits on damages in health care lawsuits. 

Alabama—None; $400,000 cap on non-economic damages; $1 

million cap on wrongful death damages, overturned by Smith v. 

Shulte, 671 So.2d 1331 (1991), cert. denied, 517 U.S. 1220 (1996). 

Alaska—$250,000 cap on non-economic damages for claims involving personal injury, and a $400,000 cap on non-economic damages for claims involving wrongful death or a severe permanent 

physical impairment that is more than seventy percent disabling. 

A single cap applies regardless of the number of health care providers against whom the claim is asserted or the number of causes 

of action filed. (2005). 

Arizona—None; Article 2 sec. 31 and Article 18 sec. 6 of Arizona’s constitution prohibits limiting recoverable damages. 


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Arkansas—None; Article 5 sec. 32 of Arkansas’ constitution prohibits limiting damages recoverable for injury or death. 

California—$250,000 cap on non-economic damages (since 

1975); upheld in Fein v. Permanente Medical Group, 38 Cal. 3d 

137, 695 P.2d 665 (1985). 

Colorado—$1 million cap on total damages, including any derivative claim by any other claimant, of which non-economic losses 

shall not exceed $250,000 (including any derivative claim by any 

other claimant). Upon good cause shown and if the court determines such limit would be unfair, the court may award damages 

in excess of the limit. In this case, the court may award the present 

value of additional future damages only for loss of such excess future earnings or such excess future medical and other health care 

costs, or both. (1988). Upheld in Scholz v. Metropolitan Pathologists 

P.C., 851 P.2d 901 (1993). Effective July 1, 2003, the non-economic damages cap was raised to $300,000. 

Connecticut—None. 

Delaware—None. 

D.C.—None. 

Florida—For providers, $500,000 cap on non-economic damages 

for causes of action for injury or wrongful death due to medical 

negligence of physicians and other health care providers. Cap applies per claimant regardless of the number of defendants. Cap increases to $1 million for certain exceptions. For non-providers, 

$750,000 cap on non-economic damages per claimant for causes of 

action for injury or wrongful death due to the medical negligence 

of nonpractitioners, regardless of the number of nonpractitioner defendants. Cap increases to $1.5 million for certain exceptions. 

(2003) Previous law upheld but subject to rules on voluntary arbitration, Univ. of Miami v. Echarte, 618 So.2d 189 (1993). 

Georgia—None; previous reforms included the following but 

were held unconstitutional in Atlanta Oculoplasty Surgery, P.C. v. 

Nestlehutt, 691 S.E.2d 219 (Ga. 2010) (statute limiting awards of 

noneconomic damages in medical malpractice cases to a predetermined amount violated state constitutional right to jury trial): 

$350,000 cap on non-economic damages awarded against all health 

care providers and a separate $350,000 cap on non-economic damages awarded against a single medical facility that can increase to 

$700,000 if more than one facility is involved. No more than $1.05 

million can be awarded in a medical liability cause of action. 

Health Care Providers—Any judgment in a medical liability action, 

including wrongful death, against a health care provider shall not 

exceed $350,000 in non-economic damages regardless of the number of defendant health care providers against whom the claim is 

asserted or the number of separate causes of action on which the 

claim is based. The cap applies to each claimant, however, the term 

‘‘claimant’’ is defined as including all persons claiming to have sustained damages as a result of the bodily injury or death of a single 

person. Medical Facilities—Establishes a separate $350,000 cap on 

non-economic damages awarded in medical liability actions, including wrongful death, against a single medical facility including all 

persons and entities for which vicarious liability theories may 

apply, regardless of the number of separate causes of action on 

which the claim is based. If the lawsuit involves more than one 

medical facility, the total amount of non-economic damages that 


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can be awarded against the facilities is $700,000 with a single facility not liable for more than $350,000. (2005). 

Hawaii—$375,000 cap on non-economic damages, with exceptions for certain types of damages, such as mental anguish. (1986). 

Idaho—$250,000 cap on non-economic damages per claimant in 

personal injury and wrongful death actions. The cap will be adjusted annually beginning July 1, 2004 based on the average annual wage. The limit does not apply to causes of action arising out 

of willful or reckless misconduct, or felonious actions. (2003) 

Upheld, Kirkland v. Blaine County Medical Center, 134 Idaho 464, 

4 P.3d 1115 (2000). 

Illinois—None; reforms struck down in LeBron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010) (holding unconstitutional caps on non-economic damages and requirement of periodic 

payments of damages). Reforms that were struck down included 

the following: $500,000 cap on non-economic damages for awards in 

a medical liability cause of action, including wrongful death, 

against a physician, the physician’s business or corporate entity, 

and personnel or health care professionals. Separate $1 million cap 

on non-economic damages for awards in a medical liability cause of 

action, including wrongful death, against a hospital and its personnel or hospital affiliates. Both caps apply to all plaintiffs in any 

civil action arising out of the care. The caps apply to injuries that 

occur after the effective date of the act. (2005); previous $500,000 

cap on non-economic damages, overturned Best v. Taylor Machine 

Works, 689 N.E.2d 1057 (Ill. 1997). $500,000 cap on economic and 

non-economic damages, overturned Wright v. Central DuPage Hospital Assn., 63 Ill.2d 313, 347 N.E.2d 736 (1976). 

Indiana—$750,000 cap on total damages for any act of malpractice that occurs after 12/31/89 and before 7/1/99. $1.25 million 

total cap for any act of malpractice that occurs after 6/30/99. 

Health care providers are not liable for more than $250,000 for an 

occurrence of malpractice any amount awarded in excess of 

$250,000 will be paid through the Patient Compensation Fund. 

(1975) Upheld, Johnson v. St. Vincent Hospital, 404 N.E. 2d 585 

(1980). 

Iowa—None. 

Kansas—$250,000 cap on non-economic damages. This is the 

total amount of non-economic damages recoverable by each party 

from all of the defendants. (1988) Upheld, Samsel v. Wheeler 

Transport Services, Inc., 246 Kan. 336 (1990); previous law struck 

down as unconstitutional, Kansas Malpractice Victims Coalition v. 

Bell, 243 Kan. 333, 757 P.2d 251 (1988). 

Kentucky—None. Section 54 of Kentucky’s Constitution prohibits cap on damages. 

Louisiana—$500,000 cap on total damages, excluding damages 

recoverable for medical care. A health care provider covered by the 

Patient’s Compensation Fund shall not be liable for more than 

$100,000. The Patient’s Compensation Fund will cover the excess 

amount awarded up to the cap. (1975); Upheld caps on total damages, but future medical expenses are excluded from cap, Butler v. 

Flint Goodrich Hospital of Dillard University, 607 So. 2d 517 

(1992); ruled unconstitutional by Louisiana Court of Appeal, Third 

Circuit in Arrington v. ER Physicians Group, No. 04–1235 (La. Ct. 


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App. Sept. 2006). Vacated and set aside by Louisiana Supreme 

Court Arrington v. Galen-Med, Inc. (La. 06–2968 Feb. 2007). 

Maine—$400,000 cap on non-economic damages in wrongful 

death actions. (1999). 

Maryland—The limit on non-economic damages is frozen at $650,000 until January 1, 2009, after which time the cap will increase annually by $15,000 per year. Cap applies in aggregate to 

all claims and defendants arising from the same medical injury. 

(Cap also applies in wrongful death actions if the claim involves 

only one claimant or beneficiary). In wrongful death actions involving two or more claimants or beneficiaries, then the total cap on 

non-economic damages is $812,500 (125% of the cap). (2005); previous law upheld as constitutional, Murphy v. Edmunds, 325 MD 

342, 601 A.2d 102 (1992). 

Massachusetts—$500,000 cap on non-economic damages, with 

exceptions for proof of substantial disfigurement or permanent loss 

or impairment, or other special circumstances which warrant a 

finding that imposition of such limitation would deprive the plaintiff of just compensation for the injuries sustained. (1986). 

Michigan—$280,000 cap on non-economic damages, adjusted annually for inflation, except in cases where the plaintiff is 

hemiplegic, paraplegic, or quadriplegic due to an injury to the brain 

or spinal cord, or where the plaintiff has permanently impaired 

cognitive capacity rendering him incapable of making independent, 

responsible life decisions and permanently incapable of independently performing the activities of normal, daily living, or the plaintiff has had permanent loss or damage to a reproductive organ resulting in the inability to procreate, then non-economic damages 

shall not exceed $500,000. As of 2003 the $280,000 cap is $359,000 

and the $500,000 cap is $641,000. (1993) Upheld, Zdrojewski v. 

Murphy, 202 Mich. App. Lexis 1566 (2002); Upheld Smith v. 

Botsford General Hospital (6th Cir. 2005). 

Minnesota—None. 

Mississippi—$500,000 cap on non-economic damages per plaintiff for medical liability causes of action filed against a health care 

provider. (2004). 

Missouri—$350,000 cap on non-economic damages per plaintiff 

irrespective of the number of defendants. Law specifies that multiple caps cannot apply to a single defendant. The law also specifies 

that in a personal injury case a spouse who claims loss of consortium shall be considered the same plaintiff as their spouse. In 

wrongful death cases, all individuals asserting a claim shall be considered a single plaintiff. (2005); previous law upheld, Adams v. 

Children’s Mercy Hospital, 848 S.W. 2d 535 (1993). 

Montana—$250,000 cap on non-economic damages per occurrence. If a single incident of malpractice injures multiple, unrelated 

patients, the $250,000 cap applies to each patient and all claims 

deriving from injuries to that patient. (1995, 1997). 

Nebraska—$1.75 million in total damages. Health care providers who qualify under the Hospital-Medical Liability Act (i.e. 

carry minimum levels of liability insurance and pay surcharge into 

excess coverage fund) shall not be liable for more than $500,000 in 

total damages. Any excess damages shall be paid from the excess 

coverage fund. (1976, 1984, 1986, 1992, 2003); upheld, Prendergast 

v. Nelson, 256 N.W.2d 657 (1977); Gourley ex. rel Gourley v. NeVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00045 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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braska Methodist Health System Inc., 265 Neb. 918, 633 N.W.2d 43 

(Neb. 2003). 

Nevada—$350,000 cap on non-economic damages awarded to 

each plaintiff from each defendant. (2004). 

New Hampshire—None; $875,000 cap on non-economic damages, overturned, Brannigan v. Usitalso, 587 A.2d 1232 (N.H. 

1991). $250,000 cap on non-economic damages in medical malpractice, overturned, Carson v. Maurer, 424 A.2d 825 (N.H. 1980). 

New Jersey—None. 

New Mexico—$600,000 cap on total damages, excluding punitive damages and past and future medical care. Health care providers personal liability shall not exceed $200,000, any award in 

excess of this amount shall be paid by the patient compensation 

fund. (1992) Upheld, Fed. Express Corp. v. United States, 228 F. 

Supp. 2d 1267 (NM 2002). 

New York—None. 

North Carolina—None. 

North Dakota—$500,000 cap on non-economic damages. (1995) Economic damage awards in excess of $250,000 are subject to judicial review for reasonableness. (1987); previous law struck down as 

unconstitutional. Arneson v. Olson, 270 N.W.2d (N.D. 1978). 

Ohio—Establishes a sliding cap on non-economic damages. The cap shall not exceed the greater of $250,000 or three times the 

plaintiff’s economic loss up to a maximum of $350,000 for each 

plaintiff or $500,000 per occurrence. The maximum cap will increase to $500,000 per plaintiff or $1,000,000 per occurrence for a 

claim based on either (A) a permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system, or 

(B) a permanent physical functional injury that permanently prevents the injured person from being able to independently care for 

self and person life sustaining activities. (2002) Note: The Ohio 

Legislature’s previous attempts to enact a law with a cap on noneconomic damages were overturned by the Ohio Supreme Court. 

For example, $250,000–500,000 sliding scale cap on non-economic 

damages, overturned, State ex rel. Ohio Academy of Trial Lawyers 

v. Sheward, 86 Ohio 3d 451, 715 N.E. 2d (1999). 

Oklahoma—Two caps, one for obstetric cases and care provided 

in an emergency room and a separate cap for all other medical liability causes of action. $300,000 cap on non-economic damages for 

cases involving pregnancy, labor and delivery, care provided immediately post partum. The cap also applies in cases involving emergency-room care or medical services provided as a follow up to such 

care. The judge may lift the cap if the judge makes a finding, out 

of the presence of the jury, that there is clear and convincing evidence of negligence. The cap applies regardless of the number of 

parties against whom the medical negligence action is brought. 

(2003). $300,000 cap on non-economic damages for all other medical liability causes of action. The cap applies only if the defendant 

has made an offer of judgment (i.e. offer to settle) and the amount 

of the verdict awarded to the plaintiff is less than 11⁄2 times the 

amount of the final offer of judgment. The cap applies to each medical injury regardless of the number of actions brought and adjusts 

annually based on any increases in the Consumer Price Index. The 

cap will not apply if nine or more members of the jury find by clear 

and convincing evidence that the defendant committed negligence 


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or if nine or more members find by a preponderance of the evidence 

that the defendant’s conduct was willful or wanton. These questions, however, will only be proposed to the jury if the judge makes 

a threshold finding that there is evidence to support such findings. 

(2004). Neither cap applies in wrongful death cases because the 

Oklahoma Constitution specifically limits damage limitations in 

those types of cases. 

Oregon—None; $500,000 cap on non-economic damages, overturned, Lakin v. Senco Products, 987 P.2d 463 (Or. 1999). However, 

an earlier decision, Greist v. Phillips, 322 Or. 281, 906 P.2d 789 

(1995), upheld the cap for wrongful death cases. 

Pennsylvania—None. Article III sec. 18 of Pennsylvania’s Constitution prohibits limiting damages for personal injuries or death. 

Punitive damages are capped at 2 times actual damages. 

Rhode Island—None. 

South Carolina—$350,000 stacked cap on non-economic damages. A claim for non-economic damages in a medical liability action against a single health care provider or single health care institution cannot exceed $350,000. If the award is against more than 

one health care provider or institution, the total award for non-economic damages cannot exceed $1.05 million, with each defendant 

not liable for more than $350,000. The cap applies separately to 

each claimant and adjusts annually for inflation based on the Consumer Price Index. (2005). 

South Dakota—$500,000 cap on total general (non-economic) 

damages. (1985, revived by 1996 court decision). Struck down cap 

on total damages, revived cap on non-economic damages, Knowles 

ex. rel. Knowles v. United States, 544 N.W. 2d 183 (SD 1996). 

Tennessee—None. 

Texas—$250,000 cap on non-economic damages for claims 

against physicians and other health care providers. The cap applies 

per claimant regardless of the number of defendants. Also provides 

a $250,000 cap on non-economic damages awarded against a single 

health care institution and a $500,000 cap on non-economic damages if a judgment is rendered against two or more health care institutions, with the total amount of non-economic damages for each 

individual institution, not exceeding $250,000 per claimant, irrespective of the number defendants, causes of action, or vicarious liability theories involved. The total amount of noneconomic damages 

for health care institutions cannot exceed $500,000. Combining the 

liability limits for physicians, health care providers, and institutions, the maximum non economic damages that a claimant could 

recover in a health care liability claim is capped at $750,000. 

(2003). Proposition 12, a ballot initiative to amend the Texas Constitution to specifically allow the legislature to enact laws that 

place limits on non-economic damages in health care and medical 

liability cases, was approved by the voters on September 13, 2003. 

$500,000 cap on all civil damages for wrongful death, indexed for 

inflation since 1977. The cap does not apply to medical, hospital, 

and custodial care received before judgment or required in the future. In 2002 the cap reached approximately $1.4 million. (1977, 

limited by 1990 court decision). $500,000 cap on non-economic damages (adjusted annually), overturned as applied to cases other than 

wrongful death, Rose v. Doctors Hospital, 801 S.W. 2d 841 (Tex. 

1990). 


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Utah—$450,000 cap on non-economic damages. 

Vermont—None. 

Virginia—$1.5 million cap on total damages for acts occurring on or after Aug. 1, 1999. This cap is increased by $50,000 annually 

beginning on or after July 1, 2000 until July 1, 2006. On July 1, 

2007 and July 1, 2008 the cap is increased by $75,000. The last increase shall be July 1, 2008. (1976, 1977, 1983, 1999, 2001) Upheld, 

Etheridge, et.al. v. Medical Center Hospitals, 237 Va. 87, 376 

S.E.2d 525 (Va. 1989). 

Washington—None; sliding cap on non-economic damages, overturned, Sophie v. Fiberboard Corp., 771 P.2d 711 (Wash. 1989). 

West Virginia—$250,000 cap on non-economic damages per occurrence, regardless of the number of plaintiffs and number of defendants. The cap increases to $500,000 per occurrence, for the following types of injuries; permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or 

permanent physical or mental functional injury that permanently 

prevents the injured person from being able to independently care 

for himself or herself and perform life sustaining activities. The 

limits only apply to defendants who have at least $1,000,000 per 

occurrence in medical liability insurance. The limits will be adjusted annually for inflation up to $375,000 per occurrence or 

$750,000 for injuries that fall within the exception. (2003). Upheld 

previous cap on non-economic damages, Robinson v. Charleston 

Area Med. Center, 186 W.Va. 720 (1991); Verba v. Ghaphery 552 

S.E. 2d 406 (W.Va. 2001). 

Wisconsin—$750,000 cap on non-economic damages. (Enacted 

2006). $350,000 cap on non economic medical malpractice damages 

overturned as unconstitutional. Ferdon v. Wisconsin Patients Compensation Fund, 701 N.W.2d. 440 (Wis. 2005). 

Wyoming—None; constitution prohibits caps. 

LIST OF STATES WHOSE STATE JUDGES HAVE ABUSED ‘‘OPEN COURTS’’ 

PROVISIONS TO STRIKE DOWN TORT REFORMS ENACTED BY STATE

LEGISLATURES

State constitutions often contain provisions that are very malleable in the hands of activist state judges and provide an opportunity for a judge who perceives the judiciary to be the dominant 

branch of government to easily forget the appropriate powers of its 

co-equal branch, the legislature. For example, a number of state 

constitutions have so-called ‘‘open courts’’ provisions. As a practical 

matter, they are intended to provide citizens of a state with justice 

and reasonable access to the courts. Open court provisions, however, can be stretched to suggest that any time a legislature in any 

way limits any person’s rights to sue, it is violative of the ‘‘open 

courts’’ provision. There is no state constitutional history that suggests this extreme result. Respect for fundamental principles of 

separation of powers counsels against such an interpretation. Nevertheless, in the area of civil justice reform and judicial nullification of legislative efforts to improve the system of justice, such interpretations have spread. 

The following cases are representative of those in which state 

courts have used a generic state constitutional provision providing 

that ‘‘the courts shall be open’’ to prohibit state legislatures from 

enacting tort reform: 


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Jackson v. Mannesmann Demag Corp., 435 So. 2d 725 (Ala. 1983) 

(holding statute of repose regarding improvements to real property 

violated open courts provision of state constitution) 

Smith v. Dep’t of Ins., 507 So. 2d 1080 (Fla. 1987) (statute setting 

$450,000 limit on noneconomic damages awards violated access to 

courts provision of state constitution); Owens-Corning Fiberglass 

Corp. v. Corcoran, 679 So. 2d 291 (Fla. Dist. Ct. App. 1996) (holding application of former statute of repose to latent asbestos injury 

violated access to courts provision of state constitution) 

Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999) (finding two-year 

occurrence-based statute of limitations as applied to plaintiff was 

an unconstitutional violation of the privileges and immunities 

clause and the open courts provision of the Indiana Constitution); 

Van Dusen v. Stotts, 712 N.E.2d 491 (Ind. 1999) (holding same); 

Harris v. Raymond, 715 N.E.2d 388 (Ind. 1999) (holding same) 

McCollum v. Sisters of Charity of Nazareth Health Corp., 799 

S.W.2d 15 (Ky. 1990) (holding five-year statute of repose for health 

care liability actions violated open courts provision of state constitution); Perkins v. N.E. Log Homes, 808 S.W.2d 809 (Ky. 1991) 

(holding that seven-year statute of repose for improvements to real 

property violated state constitutional prohibition against ‘‘special 

legislation’’ and, according to the court, any remedial legislation 

would violate provisions in the state constitution providing for open 

courts and limits on the power of the legislature) 

Strahler v. St. Luke’s Hosp., 706 S.W.2d 7 (Mo. 1986) (finding 

statute of limitations for health care liability actions violated access to courts provision of state constitution insofar as the statute 

applied to minors) 

Sorrell v. Thevenir, 633 N.E.2d 504 (Ohio 1994) (holding statute 

providing offset of collateral source benefits received by plaintiff 

violated right to jury trial, due process, equal protection, right to 

open courts, and right to meaningful recovery provisions of state 

constitution); Samuels v. Coil Bar Corp., 579 N.E.2d 558 (Ohio 

1991) (finding same as applied to wrongful death actions) 

Daugaard v. Baltic Coop. Bldg. Supply Ass’n, 349 N.W.2d 419 

(S.D. 1984) (holding that six-year statute of repose for improvements to real property violated open courts provision of state constitution) 

LIST OF OTHER STATES WHOSE SUPREME COURTS

HAVE NULLIFIED LEGAL REFORMS

Alabama—Clark and Halliburton Industrial Services Division v. 

Container Corp. of America, 589 So. 2d 184 (Ala. 1991) (statute allowing for periodic payments of personal injury awards over 

$150,000 held unconstitutional under state constitution); Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala. 1993) (statute setting $250,000 limit on punitive damages awards held unconstitutional under state constitution); Moore v. Mobile Infirmary Association, 592 So. 2d 156 (Ala. 1991) (statute setting $400,000 limit on 

noneconomic damages awards in health care liability actions held 

unconstitutional under state constitution); Smith v. Schulte, 671 

So. 2d 1334 (Ala.) (1987 statute setting $1 million aggregate limit 

on damages awards in health care liability actions held unconstitutional under state constitution), cert. denied, 517 U.S. 1220 (1996). 


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Alaska—Turner Construction Co., Inc. v. Scales, 752 P.2d 467 

(Alaska 1988) (six-year statute of repose on suits filed against design professionals held unconstitutional under state constitution). 

Arizona—Anson v. American Motors Co., 747 P.2d 581 (Ariz. 

App. 1987) (two-year statute of limitations for wrongful death actions, with accrual at time of death, held unconstitutional under 

state constitution); Barrio v. San Manuel Division Hospital For 

Magma Copper Co., 692 P.2d 280 (Ariz. 1984) (statute of limitations which required minor injured when below age of seven to 

bring action for medical malpractice by the time she reached age 

ten held unconstitutional under state constitution); Hazine v. Montgomery Elevator Co., 861 P.2d 625 (Ariz. 1993) (twelve-year product 

liability statute of repose held unconstitutional under state constitution); Kenyon v. Hammer, 688 P.2d 961 (Ariz. 1984) (three-year 

statute of limitations for wrongful death claim held unconstitutional under state constitution); Smith v. Myers, 887 P.2d 541 

(1994) (periodic payments requirement found unconstitutional). 

Colorado—Austin v. Litvak, 682 P.2d 41 (Colo. 1984) (three-year 

statute of repose in medical malpractice actions held unconstitutional under state constitution insofar as the statute applied to persons whose claims were based on negligent misdiagnosis). 

Florida—Smith v. Department of Insurance, 507 So. 2d 1080 

(Fla. 1987) (statute setting $450,000 limit on noneconomic damages 

awards held unconstitutional under state constitution). 

Georgia—Denton v. Con-Way Southern Express, Inc., 402 S.E.2d 

269 (Ga. 1991) (statute authorizing admission of collateral sources 

of recovery available to plaintiffs seeking special damages for 

tortious injury held unconstitutional under state constitution), and 

Atlanta Oculoplasty Surgery, P.C. v. Nestlehutt, 691 S.E.2d 219 

(Ga. 2010) (statute limiting awards of noneconomic damages in 

medical malpractice cases to a predetermined amount violated 

state constitutional right to jury trial). 

Illinois—Best v. Taylor Machine Works, Inc., 689 N.E.2d 1057 

(Ill. 1997) (Civil Justice Reform Amendments of 1995’s $500,000 

limit on noneconomic damages award and abolition of joint liability 

held unconstitutional under state constitution), and LeBron v. Gottlieb Memorial Hospital, 930 N.E.2d 895 (Ill. 2010) (holding unconstitutional caps on non-economic damages and requirement of periodic payments of damages). 

Indiana—Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999) (twoyear occurrence-based statute of limitations as applied to plaintiff 

was held unconstitutional under state constitution); Van Dusen v. 

Stotts, 712 N.E.2d 491 (Ind. 1999) (same); Harris v. Raymond, 715 

N.E.2d 388 (Ind. 1999) (same). 

Kansas—Farley v. Engelken, 740 P.2d 1058 (Kan. 1987) (abrogation of collateral source rule in health care liability actions held unconstitutional under state constitution); Kansas Malpractice Victims Coalition v. Bell, 757 P.2d 251 (Kan. 1988) (Kansas Health 

Care Provider Insurance Availability Act provisions setting $1 million limit on aggregate damages in health care liability actions and 

provision requiring annuity for payments for future economic loss 

in all health care liability actions held unconstitutional under state 

constitution); Thompson v. KFB Insurance Co., 850 P.2d 773 (Kan. 

1993) (statute allowing evidence of collateral source benefits where 


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claimant demands judgment for damages in excess of $150,000 held 

unconstitutional under state constitution). 

Kentucky—McCollum v. Sisters of Charity of Nazareth Health 

Corp., 799 S.W.2d 15 (Ky. 1990) (five-year statute of repose for 

health care liability actions held unconstitutional under state constitution); O’Bryan v. Hedgespeth, 892 S.W.2d 571 (Ky. 1995) (statute allowing admission of evidence of collateral source payments in 

personal injury actions held unconstitutional under state constitution); Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998) (1988 punitive 

damages reform statute requiring a plaintiff to show that the defendant acted with ‘‘flagrant indifference to the rights of the plaintiff and with a subjective awareness that such conduct will result 

in human death or bodily harm’’ as a predicate for punitive damages liability held unconstitutional under state constitution). 

Missouri—Strahler v. St. Luke’s Hospital, 706 S.W.2d 7 (Mo. 

1986) (statute of limitations for health care liability actions held 

unconstitutional under state constitution insofar as the statute applied to minors). 

New Hampshire—Carson v. Maurer, 424 A.2d 825 (N.H. 1980) 

(this New Hampshire Supreme Court decision is, to date, the most 

sweeping repudiation of medical malpractice tort reform legislation 

on state constitutional grounds. A $250,000.00 damage cap on noneconomic damages was invalidated, along with restrictions on attorneys’ fees, limitations on the collateral source rule, periodic 

damage payment provisions, a reduction of the existing statutes of 

limitations, generally and for minors, stricter requirements for expert testimony and notification of suit requirements); Brannigan v. 

Usitalo, 587 A.2d 1232 (N.H. 1991) (statute limiting recovery for noneconomic loss to $875,000 in personal injury actions held unconstitutional under state constitution); Heath v. Sears, Roebuck & 

Co., 464 A.2d 288 (N.H. 1983) (twelve-year statute of repose and 

three-year statute of limitations for product liability actions held 

unconstitutional under state constitution). 

North Dakota—Arneson v. Olson, 270 N.W. 2d (N.D. 1978) 

(struck down $500,000 cap on total non-economic damages saying 

cap constituted an unconstitutional deprivation of theright to a jury 

trial); Hanson v. Williams County, 389 N.W.2d 319 (N.D. 1986) 

(ten-year product liability statute of repose held unconstitutional 

under state constitution). 

Ohio—State v. Ohio Academy of Trial Lawyers v. Sheward, 715 

N.E. 2d (1999) (court overturned caps as a violation of the due 

process clause; also found the entire bill unconstitutional as a violation of the one subject rule and separation of powers clause); 

Adamsky v. Buckeye Local School District, 653 N.E.2d 212 (Ohio 

1995) (two-year statute of limitations for personal injury actions 

against political subdivisions held unconstitutional under state constitution, as applied to minors); Crowe v. Owens Corning Fiberglas, 

718 N.E.2d 923 (Ohio 1999) (limitation on punitive damages held 

unconstitutional under state constitution); Gaines v. Preterm-Cleveland, Inc., 514 N.E.2d 709 (Ohio 1987) (health care liability statute 

of repose held unconstitutional under state constitution as applied 

to adult litigants who, following discovery, did not have adequate 

time to file actions); Galayda v. Lake Hospital Systems, Inc., 644 

N.E.2d 298 (Ohio 1994) (statute requiring periodic payments of future damages awards in medical malpractice suits held unconstituVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00051 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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tional under state constitution), reconsideration denied, 644 N.E.2d 

1389 (Ohio), cert. denied sub nom. Damian v. Galayda, 516 U.S. 

810 (1995); Gladon v. Greater Cleveland Regional Transit Authority, 1994 WL 78468 (Ohio App. Mar. 10, 1994) ($250,000 limit on 

noneconomic damages awards held unconstitutional under state 

constitution), rev’d on other grounds, 662 N.E.2d 287 (Ohio 1996); 

Hardy v. VerMeulen, 512 N.E.2d 626 (Ohio 1987) (statute barring 

health care liability claims brought more than four years after act 

or omission constituting alleged malpractice occurred, as applied to 

bar claims of health care liability plaintiffs who did not know or 

could not have known of their injuries, held unconstitutional under 

state constitution), cert. denied, 484 U.S. 1066 (1988); Mominee v. 

Scherbarth, 503 N.E.2d 717 (Ohio 1986) (statute which required 

health care liability actions to be brought within one year from 

date cause of action accrued, or four years from date alleged malpractice occurred, whichever came first, held unconstitutional 

under state constitution insofar as the statute applied to minors); 

Morris v. Savoy, 576 N.E.2d 765 (Ohio 1991) ($200,000 limit on 

general damages in health care liability actions held unconstitutional under state constitution); Schwan v. Riverside Methodist 

Hospital, 452 N.E.2d 1337 (Ohio 1983) (statute of limitations for 

health care liability actions, as it applied to minors, held unconstitutional under state constitution); Sorrell v. Thevenir, 633 N.E.2d 

504 (Ohio 1994) (statute providing offset of collateral source benefits received by plaintiff held unconstitutional under state constitution); Samuels v. Coil Bar Corp., 579 N.E.2d 558 (Ohio Cm. Pl. 

1991) (same as applied to wrongful death actions). 

Oklahoma—Woods v. Unity Health Center, Inc., 196 P.3d 529 

(Ok. 2008) (court overturned cap as a special law). 

Oregon—Lakin v. Senco Products, Inc., 987 P.2d 463 (Or. 1999) 

($500,000 limit on noneconomic damages in personal injury and 

wrongful death actions arising out of common law held unconstitutional under state constitution). 

Pennsylvania—Viadock v. Nesbitt Mem’l Hosp., 489 A.2d 240 

(Pa. Super. Ct. 1985) (finding that a collateral source modification 

was not severable from a medical malpractice arbitration statute, 

which was invalidated as a violation of the right to trial by jury). 

Rhode Island—Kennedy v. Cumberland Engineering Co., Inc., 

471 A.2d 195 (R.I. 1984) (ten-year statute of repose for product liability actions held unconstitutional under state constitution). 

South Dakota—Knowles v. Federal, 544 N.W.2d 183 (S.D. 1996) 

($1 million aggregate limit on economic and noneconomic damages 

in health care liability actions held unconstitutional under state 

constitution, but more limited statute capping noneconomic damages awards in health care liability actions at $500,000 remained 

in effect). 

Texas—Lucas v. Federal, 757 S.W.2d 687 (Tex. 1988) ($500,000 

aggregate limit on damages in health care liability actions held unconstitutional under state constitution); Nelson v. Krusen, 678 

S.W.2d 918 (Tex. 1984) (two-year statute of limitations for medical 

malpractice actions held unconstitutional under state constitution). 

Utah—Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985) 

(statute of repose barring product liability claims six years after of 

purchase or ten years after date of manufacture of product held unconstitutional under state constitution); Lee v. Gaufin, 867 P.2d 


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572 (Utah 1993) (provision of Utah Health Care Malpractice Act 

subjecting minors to two-year statute of limitations and four-year 

statute of repose held unconstitutional under state constitution). 

Washington—Sofie v. Fibreboard Corp., 771 P.2d 711 (Wash. 

1989) (variable limit on noneconomic damages awards held unconstitutional under state constitution). 

Wisconsin—Ferdon v. Wisconsin Patient Compensation 

Fund,701 N.W.2d. 440 (Wis. 2005) (court held that cap on non-economic damages violates the equal protection clause); Kohnke v. St. 

Paul Fire & Marine Insurance Co., 410 N.W.2d 585 (Wis. App. 

1987) (medical malpractice statute of limitations held unconstitutional under state constitution), aff’d on other grounds, 424 N.W.2d 

191 (Wis. 1988). 

Wyoming—Squillace v. Kelley, 990 P. 2d 497 (Wy. 1999) (striking down all legislative reforms on grounds they are an unconstitutional infringement on the judiciary’s exclusive power to control 

practice and procedure in the state’s courts). 

LIMITS ON ATTORNEYS FEES MEAN MORE MONEY GOES TO VICTIMS

The HEALTH Act’s limits on attorneys’ fees—the same as those 

provided for in California’s law—will reduce lawyers’ incentives to 

bring frivolous lawsuits while allowing more money to go directly 

to injured patients. 

Currently, limited resources can either fund lawyers or they can 

fund patients in our health care system. Under the HEALTH Act, 

the larger a victim’s demonstrable, real-life, quantifiable economic 

damages are, the more they will receive because lawyers will be allowed to take only 15% of awards over $600,000. 

Standard attorney contingency fee agreements allow lawyers to 

take one-third—a full 33.3%—of their client’s awards, so victims 

are left with only 66%. The HEALTH Act would allow victims to 

keep roughly 75% of awards under $600,000, and 85% of awards 

over $600,000. Under the HEALTH Act, victims who demonstrate 

large losses get more, and lawyers get less. 

THE HEALTH ACT ALLOWS UNLIMITED ECONOMIC DAMAGES

Nothing in the HEALTH 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, and anything to which a receipt can be attached. 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. 

Consequently, the HEALTH Act does nothing to hurt women and 

children. Any lawyer can easily produce charts proving the ecoVerDate Mar 15 2010 06:45 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00053 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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142See L.E. Johnson, Robert D. Ley, and Paul T. Benshoof, ‘‘Estimating Economic Loss for a 

Facially Disfigured Minor: A Case Study,’’ Journal of Legal Economics (July, 1993) (The V.A. 

rating schedule was obtained from a Veterans Benefits Office at the V.A. Center in St. Paul, 

Minnesota after being advised that the V.A. disability ratings are for economic loss exclusively. 

The percentage disability ratings contained in the V.A. S-R-D are based on case study data on 

economic loss from facial disfigurement. This data was initially collected during World War II 

by the V.A. and has been updated from that time . . . The first component of economic loss 

is termed social loss. Social loss refers to the additional cost of job search which results from 

facial disfigurement. The second component of economic loss is what the V.A. terms industrial 

loss. Industrial loss refers to lost income because of lost earning capacity.’’). 

nomic value of a stay-at-home-mom’s services. Anything necessary 

to replace those services are economic damages that the HEALTH 

Act does not limit one bit. Similarly, the future income lost by an 

injured child constitutes economic damages that are easily proved 

and which would be fully available from responsible parties under 

the HEALTH Act. 

The following are some recent, very large awards to victims of 

medical malpractice under California’s legal reforms, which cap 

non-economic damages at $250,000, but which do not cap quantifiable economic damages. The HEALTH Act is modeled on California’s legal reform. These cases show that reasonable legal reforms 

such as those in the HEALTH Act still allow for very large, multimillion dollar awards to deserving victims. Also, loses due to disfigurement can be economically quantified. The Veterans Administration, for example, has a rating schedule that quantifies the economic costs of disfigurement.142

August 2010, Contra Costa County 

$5,500,000 

February 2010, Riverside County 

$16,500,000 

February 2010, Los Angeles County 

$12,000,000 

November 2009, Los Angeles County 

$5,000,000 

October 2009, Sacramento County 

$5,750,000 

September 2009, Los Angeles County 

$7,300,000 

January 2009, San Diego County 

$16,000,000 

September 2008, Los Angeles County 

$9,000,000 

April 2008, San Francisco County 

$5,100,000 

July 2007, Los Angeles County 

$96,400,000 

June 2007, Orange County 

$11,700,000 

May 2007, San Diego County 

$15,700,000 


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143 C. Paul Wazzan, Ph.D. and Dawn Eash, M.S., ‘‘Estimated Increases in State of California 

Employee and Retiree Costs Caused by Doubling the MICRA Cap’’ (June 9, 2010) at 3. 144Thomas Jefferson, A Bill for Proportioning Crimes and Punishments in Cases Heretofore 

Capital, in 2 The Papers of Thomas Jefferson 492, 493 (Julian P. Boyd ed., 1950). 145See Coney v. J.L.G. Indus., Inc., 454 N.E.2d 197 (Ill. 1983). 146For example, in Walt Disney World Co. v. Wood, 515 So.2d 198 (Fla. 1987), Disney was 

required to pay an entire damages award, even though it was found only 1% at fault for the 

claimant’s harm. 

THE KEY TO REDUCING HEALTH CARE COSTS IS A FIRM CAP ON

NONECONOMIC DAMAGES

Caps on noneconomic damages are essential to the success of the 

HEALTH Act’s reforms. Indeed, the savings of $54 billion over ten 

years that CBO concluded would be significantly diminished if the 

cap were raised over time. The key to the success of the legal reforms in California is its cap on noneconomic damages at $250,000, 

which is not indexed to inflation. The recent reforms in Texas also 

do not index the caps to inflation. The California cap has stood the 

test of time and remains an effective check on medical professional 

liability rates precisely because it was not indexed to inflation back 

in 1975. What may have been described by some as an arbitrary 

figure in 1975 has become the keystone of the only proven, longterm, legislative solution to the current crisis in access to medical 

care. A 2010 study showed that doubling California’s cap on noneconomic damages would cost that state between $1.3 and $2.4 billion in employee and retiree benefits over a 10-year period.143 If 

one extrapolates from that number, it becomes clear that linking 

H.R. 5’s cap on noneconomic damages to the Consumer Price Index, 

or similarly linking it to inflation, would cost Federal taxpayers 

around $14 billion or more. 

The Consumer Price Index and noneconomic damages are also 

apples and oranges. ‘‘Pain and suffering’’ cannot be measured, and 

there is no consumer price index for ‘‘pain and suffering.’’ However, 

quantifiable economic damages are not limited by the HEALTH 

Act, and because those damages can be measured, they can and are 

adjusted upward in future years to account for inflationary effects 

on economic goods and services that can be quantified. 

CONGRESS SHOULD ENACT A FAIR SHARE RULE

Respect for the law is fostered when it is fair and just and punishments are proportionate to the wrongs committed. As Thomas 

Jefferson noted, ‘‘if the punishment were only proportional to the 

injury, men would feel that their inclination as well as their duty 

to see the laws observed.’’ 144

The rule of joint liability, commonly called joint and several liability, provides that when two or more persons engage in conduct 

that might subject them to individual liability and their conduct 

produces a single injury, each defendant will be liable for the total 

amount of damages.145 Joint liability is unfair because it puts full 

responsibility on those who may have been only marginally at 

fault.146

Relevant to the ‘‘fair share’’ rule in the HEALTH Act are Senator 

Lieberman’s observations that 

There is a concept, joint and several liability, started out in the 

law as a way of proportioning responsibility when an accident 

was caused by a number of different parties working together 


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147Senator Lieberman, floor statement on the Common Sense Product Liability and Legal Reform Act (April 27, 1995). 148This hypothetical is not fanciful. See Ray Flanagan, ‘‘After Stabbing Son, Mom Sues Doctors,’’ The Scranton Time Tribune (May 29, 2002) (‘‘Mrs. Taylor and her husband, Brian, are 

suing . . . the obstetricians who treated her in the months before she exploded in violence that 

left her son, Zachary, with two punctured lungs, a severed jugular vein and scalp wounds on 

July 14, 2000 . . . They accuse the doctors and their employers of not adequately responding 

as she became more psychotic, delusional and depressed as the end of her pregnancy neared.’’). 149Pub. L. No. 105–19, 111 Stat. 218. 150See Dan Carney, Volunteer Liability Limit Heads to President, Cong. Q., May 24, 1997, 

at 1199 (‘‘The measure passed the House on May 21 by a vote of 390–35, and the Senate cleared 

it by voice vote later that day. An earlier Senate version passed May 1 by a vote of 99–1.’’) (omitting references to bill numbers). 151P.L. No. 105–230, 21 U.S.C. §§ 1601–1606. 

in a way that caused negligence, and often it was not clear 

which one actually caused it. So they said everybody could be 

held liable regardless of the percentage of negligence. It now 

has grown to a point where what it really means is that somebody who is not liable, or liable very little, if they happen to 

have deep pockets, they can be held fully liable. That is the 

wrong message to send. . . . If you hurt somebody, you have 

to pay. If you do not, you should not have to pay. What kind 

of cynicism is developed when somebody who did little or no 

wrong ends up having to pay the whole bill because somebody 

else slipped up.147

Joint and several liability, although motivated by a desire to insure that plaintiffs are made whole, leads to a search by plaintiffs’ 

attorneys for ‘‘deep pockets’’ and to a proliferation of lawsuits 

against those minimally liable or not liable at all. The HEALTH 

Act, by providing for a ‘‘fair share’’ rule that apportions damages 

in proportion to a defendant’s degree of fault, prevents unjust situations in which hospitals can be forced to pay for all damages resulting from an injury even when the hospital is minimally at 

fault. For example, say a drug dealer staggers into the emergency 

room with a gunshot wound after a deal goes bad. The surgeon who 

works on him does the best he can, but it is not perfect. The drug 

dealer sues.148 The jury finds the drug dealer responsible for the 

vast majority of his own injuries, but it also finds the hospital 1% 

responsible because the physician was fatigued after working too 

long. Today the hospital can be made to pay 100% of the damages 

if no other defendant has the means to pay their share of the damages. That is unfair. 

The Volunteer Protection Act of 1997 149 abolished joint liability 

for non-economic damages for volunteers of nonprofit organizations. 

That law was overwhelmingly supported by a bipartisan majority 

of Congress.150 Joint liability also brought about a serious public 

health crisis that critically threatened the availability of 

implantable medical devices, such as pacemakers, heart valves, artificial blood vessels, and hip and knee joints. Companies had 

ceased supplying raw materials and component parts to medical 

implant manufacturers because they found the costs of responding 

to litigation far exceeded potential sales revenues, even though 

courts were not finding the suppliers liable. Congress responded to 

the crisis and enacted legislation, the Biomaterials Access Assurance Act of 1998,151 that allows medical device suppliers to obtain 

early dismissal, without extensive discovery or other legal costs, in 

certain tort suits involving finished medical implants. 

As Senator Lieberman has observed, 


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152Senator Lieberman, floor statement on the Common Sense Product Liability and Legal Reform Act (April 27, 1995). 153Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 18 (1991). See also Honda Motor Co., 

Ltd. v. Oberg, 512 U.S. 415, 432 (1994) (stating that punitive damages ‘‘pose an acute danger 

of arbitrary deprivation of property,’’ raising serious due process concerns). 154 International Bhd. of Elec. Workers v. Foust, 442 U.S. 42, 50 (1979). 155 Congress included a cap on punitive damages for individuals and small businesses in the 

Year 2000 Readiness and Responsibility Act, Pub. L. 106–37, 113 Stat. 135 (1999). The ‘‘Y2K 

Act’’ established procedures and legal standards for lawsuits stemming from Year 2000 daterelated computer failures. 156See Solem v. Helm, 463 U.S. 277, 284 (1983) (‘‘The principle that a punishment should be 

proportionate to the crime is deeply rooted and frequently repeated in common-law jurisprudence’’); Weems. v. United States, 217 U.S. 349, 366–67 (1910) (it is ‘‘a precept of the fundamental law’’ as well as ‘‘a precept of justice that punishment should be graduated and proportioned to the offense’’). 157Some examples of Federal criminal fines, even for particularly egregious crimes, do not exceed $250,000 and include the following: tampering with consumer products ($250,000 if death 

results), U.S. Sentencing Guidelines Manual §§ 2N1.1, 5E1.2 (1998); assault on the President 

($30,000), U.S. Sentencing Guidelines Manual §§ 2A6.1, 5E1.2 (1998); bank robbery ($75,000), 

U.S. Sentencing Guidelines Manual §§ 2B3.1, 5E1.2; and sexual exploitation of children 

($100,000), U.S. Sentencing Guidelines Manual §§ 2G2, 5E1.2 (1998). See generally Jonathan 

Kagan, Comment, Toward a Uniform Application of Punishment: Using the Federal Sentencing 

Guidelines as a Model for Punitive Damages Reform, 40 U.C.L.A. L. Rev. 753 (1993). 158Lewis Powell, ‘‘The Bizarre Results of Punitive Damages,’’ Wall Street Journal (March 8, 

1995), at A21. 

Consumers are the ones who suffer when valuable innovations 

do not occur or when needed products, like life-saving medical 

devices, do not come to market or are not available in our 

country any longer because no one will supply the necessary 

raw materials. The inadequacies and excesses of our product liability system are quite literally matters of life and death for 

some people whose lives depend on medical devices that may 

no longer be available in the United States.152

THE HEALTH ACT DOES NOT CAP PUNITIVE DAMAGES, 

BUT DOES INCLUDE REASONABLE GUIDELINES FOR THEIR USE

The United States Supreme Court has observed that punitive 

damages have ‘‘run wild’’ in the United States, jeopardizing fundamental constitutional rights.153 The Supreme Court has also emphasized that ‘‘the impact of [a punitive damages award] is unpredictable and potentially substantial.’’ 154

The HEALTH Act does not cap punitive damages. Rather, it includes reasonable guidelines that would govern their award. Under 

these guidelines, a punitive damages award could not exceed the 

greater of $250,000, or two times the amount of economic damages 

that are awarded (and economic damages under the HEALTH Act 

are not limited at all). Federal legislation should put reasonable 

parameters on punitive damages to make the punishment fit the 

offense.155 Proportionality has been an important part of the 

United States Supreme Court’s consideration of the validity of 

criminal punishment.156 Even serious crimes such as larceny, robbery, and arson have sentences defined with a maximum set forth 

in a statute.157 As former Supreme Court Justice Lewis Powell 

wrote, ‘‘It is long past time to bring the law of punitive damages 

into conformity with our notions of just punishment.’’ 158 Under the 

HEALTH Act, the larger the economic losses suffered by the victim, 

the larger the punishment can be. 


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159See Ala. Code § 6–11–21 (1999); Alaska Admin. Code tit. 58 § 9.17.020(f)-(h); Colo. Rev. 

Stat. § 13–21–102(1)(a); Conn. Gen. Stat. § 52–240b; Fla. Stat. Ann. § 768.73(1)(b); Ind. Code 

Ann. § 34–51–3–4; Kan. Stat. Ann. § 60–3701; N.J. Stat. Ann. § 2A:15–5.14; N.C. Gen. Stat. 

§ 1D–25; N.D. Cent. Code § 32.03.2–11(4); Okla. Stat. tit. 23 § 9.1; Tex. Civ. Prac. & Rem. Code 

Ann. § 41.008; Va. Code Ann. § 8.01–38.1. 160See American Bar Association, Special Committee on Punitive Damages of the American 

Bar Association, Section on Litigation, Punitive Damages: A Constructive Examination (1986) 

at 64–66 (recommending that punitive damages awards in excess of three-to-one ratio to compensatory damages be considered presumptively ‘‘excessive’’); American College of Trial Lawyers, Report on Punitive Damages of the Committee on Special Problems in the Administration 

of Justice 15–16 (1989), at 15 (proposing that punitive damages be awarded up to two times 

a plaintiff’s compensatory damages or $250,000, whichever is greater); American Law Institute, 

2 Enterprise Responsibility for Personal Injury—Reporters’ Study (1991), at 258–59 (endorsing 

concept of ratio coupled with alternative monetary ceiling). 161George L. Priest, Punitive Damages Reform: The Case of Alabama, 56 La. L. Rev. 825, 830 

(1996). 162See W. Kip Viscusi, Punitive Damages: The Social Costs of Punitive Damages Against Corporations In Environmental and Safety Torts, 87 Geo. L.J. 285, 294 (1998). 163Senator Lieberman, floor statement on the Common Sense Product Liability and Legal Reform Act (April 27, 1995). 

Ten states base punitive damages awards on a similar formula 

(AL, AK, CO, CT, FL, IN, NJ, NC, ND, TX). At the state level, limits on punitive damages awards exist in a number of states.159

Academic groups have also recommended limiting punitive damages to prevent excessive punitive damages awards.160

Opponents of punitive damages reform argue that changes in the 

law are not needed because large punitive damages awards are 

often reduced on appeal. However, the practical reality is that the 

impact of potentially infinite punitive damages stretches beyond an 

actual award. As Yale law professor George Priest has observed: 

‘‘[T]he availability of unlimited punitive damages affects the 95% 

to 98% of cases that settle out of court prior to trial. It is obvious 

and indisputable that a punitive damages claim increases the magnitude of the ultimate settlement and, indeed, affects the entire 

settlement process, increasing the likelihood of litigation.’’ 161

It has also been argued that unlimited punitive damages are 

needed to police wrongdoing. However, there is no credible evidence 

that the behavior of profit-making enterprises is less safe in either 

those states that have set limits on punitive damages or in the six 

states—Louisiana, Nebraska, Washington, New Hampshire, Massachusetts, and Michigan—that do not permit punitive damages at 

all.162 Furthermore, plaintiffs in these six states have no more difficulty obtaining legal representation than in those states where 

punitive damages are potentially limitless. 

Regarding reasonable guidelines for punitive damages, Senator 

Lieberman has supported an amendment providing that ‘‘punitive 

damages, which have been much discussed here and are an essential part of the continued bullying and bluffing that goes on in our 

tort system—be limited to $250,000 or three times economic damages.’’ 163 The HEALTH Act limits punitive damages to two times 

economic damages. 

THE ‘‘CLEAR AND CONVINCING’’ RULE IS APPROPRIATELY APPLIED

TO CLAIMS FOR QUASI-CRIMINAL PUNITIVE DAMAGES

The HEALTH Act provides that punitive damages may be awarded against a person in a health care lawsuit only if it is proven by 

clear and convincing evidence that such person acted with malicious intent to injure the claimant, or that such person deliberately 

failed to avoid unnecessary injury that such person knew the 

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164See Ala. Code § 6–11–20; Alaska Stat. § 09.17.020; Cal. Civ. Code § 3294(a); Fla. Stat. ch. 

768.73; Ga. Code Ann. § 51–12–5.1; Iowa Code Ann. § 668A.1; Kan. Stat. Ann. § 60–3701(c); Ky. 

Rev. Stat. Ann. § 411.184(2); Minn. Stat. Ann. § 549.20; Miss. Code Ann. § 11–1–65(1)(a); Mont. 

Code Ann. § 27–1–221(5); N.J. Stat. Ann. § 2A:15–5.12; Nev. Rev. Stat. Ann. § 42–005(1); N.C. 

Gen. Stat. 10–15(b); N.D. Cent. Code § 32–03.2–11; Ohio Rev. Code Ann. § 2307.80(A); Okla. 

Stat. Ann. tit. 23, § 9.1; Or. Rev. Stat. § 18.537; S.C. Code Ann. § 15–33–135; S.D. Codified Laws 

Ann. § 21–1–4.1; Tex. Civ. Prac. & Rem. Code § 41.003; Utah Code Ann. § 78–18–1; Linthicum 

v. Nationwide Life Ins. Co., 723 P.2d 675 (Ariz. 1986); Jonathan Woodner, Co. v. Breeden, 665 

A.2d 929 (D.C. 1995); Masaki v. General Motors Corp., 780 P.2d 566 (Haw. 1989); Travelers 

Indem. Co. v. Armstrong, 442 N.E.2d 349 (Ind. 1982); Tuttel v. Raymond, 494 A.2d 1353 (Me. 

1985); Owens-Illinois v. Zenobia, 601 A.2d 633 (Md. 1992); Rodriguez v. Suzuki Motor Corp., 936 

S.W.2d 104 (Mo. 1996); Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. 1992); Wangen v. 

Ford Motor Co., 294 N.W.2d 437 (Wis. 1980). One state, Colorado, requires proof ‘‘beyond a reasonable doubt’’ in punitive damages cases. See Colo. Rev. Stat. § 13–25–127(2). 165See American Bar Association, Special Committee on Punitive Damages of the American 

Bar Association, Section on Litigation, Punitive Damages: A Constructive Examination 19 

(1986); American College of Trial Lawyers, Report on Punitive Damages of the Committee on 

Special Problems in the Administration of Justice 15–16 (1989); National Conference Of Commissioners On Uniform State Laws, Uniform Law Commissioners’ Model Punitive Damages Act 

§ 5 (approved on July18, 1996); see also American Law Institute, 2 Enterprise Responsibility for 

Personal Injury—Reporters’ Study 248–49 (1991). 166See Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 23 n.11 (1991) (stating that ‘‘[t]here 

is much to be said in favor of a state’s requiring, as many do . . . a standard of ‘clear and convincing evidence’ ’’). 167Pub. L. No. 105–19, 111 Stat. 218. 

vincing evidence’’ burden of proof standard is appropriate because 

it reflects the quasi-criminal nature of punitive damages. Such a 

standard takes a middle ground between the burden of proof standard ordinarily used in civil cases—that is, proof by a ‘‘preponderance of the evidence’’—and the criminal law standard—that is, 

proof ‘‘beyond a reasonable doubt.’’ 

The ‘‘clear and convincing evidence’’ standard is the law in twenty-nine states and the District of Columbia 164 and it has been recommended by the principal academic groups that have analyzed 

the law of punitive damages over the past 15 years, including the 

American Bar Association, the American College of Trial Lawyers, 

and the National Conference of Commissioners on Uniform State 

Laws.165 The Supreme Court has also specifically endorsed the 

‘‘clear and convincing evidence’’ standard in punitive damages 

cases.166 There is also support for the ‘‘clear and convincing evidence’’ standard at the Federal level. The Volunteer Protection Act 

of 1997,167 which was enacted with strong bipartisan support, requires ‘‘clear and convincing evidence’’ of punitive damages liability 

before punitive damages can be imposed against volunteers of nonprofit organizations. 

BIFURCATED PROCEDURES FOR CONSIDERING PUNITIVE DAMAGES

PREVENTS UNFAIR AND PREJUDICIAL AWARDS

The HEALTH Act also contains a procedural reform called ‘‘bifurcation.’’ Under such a procedure, at either party’s request, a trial 

would be divided so that the proceedings on punitive damages 

would be separate from and subsequent to the proceedings on compensatory damages. This procedure would achieve judicial economy 

by having the same jury determine both compensatory damages 

and punitive damages issues. 

Bifurcated trials are fair because they prevent evidence that is 

highly prejudicial and relevant only to the issue of punishment 

from being heard by jurors and improperly considered when they 

are determining underlying liability. For example, plaintiffs’ lawyers routinely introduce evidence of a company’s net worth. Although a jury is often instructed to ignore such evidence unless it 


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168See American Bar Association, Special Committee on Punitive Damages of the American 

Bar Association, Section on Litigation, Punitive Damages: A Constructive Examination (1986) 

at 19; American College of Trial Lawyers, Report on Punitive Damages of the Committee on 

Special Problems in the Administration of Justice (1989) at 18–19; National Conference Of Commissioners On Uniform State Laws, Uniform Law Commissioners’ Model Punitive Damages Act 

§ 5 (approved on July 18, 1996) at § 11; American Law Institute, 2 Enterprise Responsibility for 

Personal Injury—Reporters’ Study 248–49 (1991) at 255 n.41. 169See Michael Freedman, ‘‘The Tort Mess’’ Forbes (May 13, 2002) (‘‘The pharmaceutical industry has always been a ripe target for suits. The difference nowadays is simply that the dollar 

amounts have gotten bigger . . . If a drug saves 100 lives for every one it loses, someone who 

faces certain death should not hesitate to use it. But what happens if the tort system says every 

death must be paid for? The average payout on a wrongful death claim increased from $1 million in 1994 to $5.7 million in 2000 (the most recent data point available), according to Jury 

Verdict Research. To merely break even, the drug’s maker would have to charge $57,000 for 

every dose. It can’t get away with that. So a potential wonder drug may never see the light 

of day. A study in the Journal of the American Medical Association estimates that 100,000 people die each year in the U.S. from drug-related deaths. If the families of each sued and won 

that average of $5.7 million, total liability would hit $570 billion. That’s twice the combined revenues of the top 12 drug companies . . . Steven Garber, a researcher at the Rand Research Institute for Civil Justice, says drug companies are willing to take on the risk of lawsuits in marketing blockbusters like Viagra and Vioxx. But in other cases the chance of liability is too great. 

Garber says companies once stopped making new products for use during pregnancy because 

of the high risk of birth defects. Companies also limit research on orphan drugs—those that cure 

rare, often fatal illnesses—because the potential tort liability outweighs the profit potential.’’). 170See 21 U.S.C. § 355(e)(1); 21 C.F.R. § 5.82. 

decides to punish the defendant, this is very difficult as a practical 

matter for jurors to do. The net result may be that jurors overlook 

key issues regarding whether a defendant is liable for compensatory damages and make an award simply because they believe 

the defendant can afford to pay it. Bifurcation would help prevent 

that unfair result because evidence of the defendant’s net worth 

would be inadmissible in the first, compensatory damages phase of 

the case. Bifurcation also helps jurors compartmentalize a trial, allowing them to more easily separate the burden of proof that is required for compensatory damage awards—that is, proof by a preponderance of the evidence—from a higher burden of proof for punitive damages, that is, proof by clear and convincing evidence. 

Bifurcation of punitive damages trials is supported by the American Bar Association, the American College of Trial Lawyers, and 

the National Conference of Commissioners on Uniform State Laws, 

among other well-known organizations.168

CONGRESS SHOULD ENACT A SAFE HARBOR FROM PUNITIVE DAMAGES

FOR FDA COMPLIANCE

Litigation is threatening the viability of the life-saving drug industry.169 To help encourage new drug development and contain 

the costs of life-saving drugs, the HEALTH Act contains a safe harbor from punitive damages for defendants whose drugs or medical 

products comply with rigorous regulations. 

FDA standards and regulations are rigorous. The regulatory objectives of the Food, Drug, and Cosmetics Act (‘‘FDCA’’) are to ensure that the manufacturer shares all risk information with the 

FDA so that the agency may make informed risk-benefit judgments 

about the utility of a pharmaceutical. These judgments occur 

throughout the life of the drug. The agency determines which drugs 

reach the market and the labeling for those that do. The receipt of 

new safety information can lead the agency, after holding a hearing, to withdraw approval for marketing of a drug.170 The Secretary of Health and Human Services also has the authority to 

order the withdrawal of marketing approval without a hearing 


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171See 21 U.S.C. § 355(e). 172See 21 U.S.C. § 355(d) (1988) (‘‘[S]ubstantial evidence’’ means evidence consisting of adequate and well-controlled investigations, including clinical investigations, by experts qualified 

. . . to evaluate the effectiveness of the drug involved, on the basis of which it could fairly and 

responsibly be concluded by such experts that the drug will have the effect it purports or is represented to have under the conditions of use prescribed, recommended, or suggested in the labeling or proposed labeling thereof.’’). 173See 21 C.F.R. § 314.80. 174See 21 C.F.R. § 314.80(c)(1). 175See 21 C.F.R. §§ 310.303(a), 314.80(c). 176The five states that have proscribed punitive damages where the manufacturer has complied with the FDCA are Arizona, Az.Rev.State.Ann. § 12–701; New Jersey, N.J.Sata.Ann. 

§ 2A:58C–5(c); Ohio, Ohio.Rev.Code Ann. § 2307.80(c); Oregon, Or.Rev.Stat. § 30.927; and Utah, 

Utah Code Ann. § 78–18–2. 

where there appears to be an ‘‘imminent hazard to public 

health.’’ 171

To obtain FDA approval for marketing a prescription drug, a 

pharmaceutical applicant must generate substantial pre-marketing 

safety and efficacy information through human clinical trials. The 

FDA must ensure that the proposed new drug complies with the 

FDCA mandate that safety be established and that ‘‘substantial 

evidence’’ of efficacy be demonstrated for the drug’s proposed 

uses.172 The FDA review process often takes years of evaluation 

after the NDA’s submission. Ultimately, approval by the FDA reflects a risk-benefit judgment that the product will enhance public 

health. The entire NDA process is a lengthy one, typically taking 

between five and seven years to complete. 

The FDCA and its implementing regulations ensure that a manufacturer shares risk information with the FDA even after the 

product has been marketed.173 Post-marketing surveillance consists 

of two primary components: reports of individual adverse experiences and epidemiologic studies. Serious reactions must be reported 

within fifteen working days of receipt of the information.174 A comprehensive, post-marketing system of reporting and record-keeping 

requirements ensures that the manufacturer reports adverse drug 

experiences discovered in clinical, epidemiological, or surveillance 

studies, through review of the medical literature, or otherwise.175

Post-marketing reporting obligations include the disclosure of data 

regarding adverse reactions outside the United States. 

A few states have already specifically focused on pharmaceuticals 

and punitive damages and statutorily provide an FDA regulatory 

compliance defense against such damages.176

Research has also confirmed that the reason drug prices generally are so high in the United States compared to Canada, for example, is because of the much larger liability risks drugs are exposed to in this country. One researcher, for example, has concluded that 

A large part of the observed variation in the price differential 

[of drugs in the United States and Canada] is attributable to 

anticipated liability cost, and liability effects explain virtually 

all of the very big price differences observed. . . . [T]his work 

indicates that liability costs must have a role in any complete 

explanation of international price differences. The fact that liability risk plays such a vital role in the model implies that 

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177 Richard Manning, ‘‘Products Liability and Prescription Drug Prices in Canada and the 

United States,’’ 40 Journal of Law and Economics 203, 234 (1997). 178Senator Lieberman, floor statement on the Common Sense Product Liability and Legal Reform Act (April 27, 1995). 179See Cal.C.C.P. § 340.5. 

ferences in tort law environments across countries is seriously 

flawed. The size of these effects is simply too large to ignore.177

Relevant to the HEALTH Act’s safe harbor from punitive damages for FDA-approved products is Senator Lieberman’s observation that ‘‘Consumers are the ones who suffer when valuable innovations do not occur or when needed products, like life-saving medical devices, do not come to market or are not available in our 

country any longer because no one will supply the necessary raw 

materials. The inadequacies and excesses of our product liability 

system are quite literally matters of life and death for some people 

whose lives depend on medical devices that may no longer be available in the United States.’’ 178

STATUTE OF LIMITATIONS

Statutes of limitation define the time period following an injury 

in which a suit must be brought, in order to protect defendants 

from the prejudice of stale claims by requiring trials while the best 

evidence is still available. The best way to allow every patient his 

or her day in court while preventing prejudice to health care providers is to codify a reasonable statute of limitations, which the 

HEALTH Act does. 

The HEALTH Act provides that a medical malpractice lawsuit 

must be filed no later than one year after a person discovers an injury, or within three years at the latest. The HEALTH Act makes 

an exception for minors under the age of 6, extending the time 

within a suit must be filed to the longer of 3 years or the date on 

which the minor reaches the age of 8. These provisions are based 

on California’s MICRA law.179 The HEALTH Act’s statute of limitations provisions are designed to protect, for example, OB-GYN’s, 

who should not have to worry about being sued a decade or more 

after they’ve delivered a baby. Also, like the HEALTH Act, California’s MICRA law includes no exception for latent injuries. 

STATES ARE FREE TO ALLOW FOR HIGHER AWARDS

UNDER THE HEALTH ACT

States remain free to define how quantifiable economic losses are 

calculated in any case. Under the HEALTH Act, the only damages 

that would be limited would be those for unquantifiable ‘‘pain and 

suffering’’ damages, and ‘‘pain and suffering’’ damages could be up 

to $250,000. Also available under the HEALTH Act are punitive 

damages up to twice the amount of economic damages awarded. 

Further, the HEALTH Act saves from preemption any state law 

that limits noneconomic or punitive damages at a specific amount 

higher than the limits provided for in the HEALTH Act. That 

means that if a state law limited noneconomic damages to $10 billion, that state law would govern, even under the HEALTH Act. 


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Hearings 

The Committee on the Judiciary held an oversight hearing on the 

need for medical liability reform on January 20, 2011. Testimony 

was received from Dr. Stuart L. Weinstein, Health Coalition on Liability and Access; Joanne Doroshow, Executive Director, Center 

for Justice & Democracy; and Dr. Ardis Hoven, Chairwoman, 

American Medical Association Board of Trustees. 

Committee Consideration 

On February 16, 2011, the Committee met in open session and 

ordered the bill H.R. 5 favorably reported with an amendment, by 

a roll call vote of 18 to 15, 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 

roll call votes occurred during the Committee’s consideration of 

H.R. 5: 

1. An amendment by Mr. Conyers to exempt claims based on intentional tort liability from the bill’s coverage. Defeated 10 to 19. 

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly .......................................................................................................

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ......................................................................................................

Mr. Reed ............................................................................................................ X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson .......................................................................................................

Mr. Pierluisi .......................................................................................................

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 


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ROLLCALL NO. 1—Continued 

Ayes Nays Present 

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 10 19 

2. An amendment by Ms. Waters to exclude medical products 

that are defective as result of negligence in the manufacture or distribution of the product from the bill’s punitive damage exemption 

for products that comply with FDA Standards. Defeated 11 to 16. 

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ...........................................................................................................

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ......................................................................................................

Mr. Reed ............................................................................................................ X 

Mr. Griffin .........................................................................................................

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle .........................................................................................................

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi .......................................................................................................

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 11 16 

3. An amendment by Mr. Nadler to add restrictions on when 

judges may issue protective orders and the sealing of cases and settlements. Defeated 10 to 15. 


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ROLLCALL NO. 3 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ...........................................................................................................

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ......................................................................................................

Mr. Reed ............................................................................................................ X 

Mr. Griffin .........................................................................................................

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle .........................................................................................................

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi .......................................................................................................

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ......................................................................................................

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 10 15 

4. An amendment by Ms. Sa ́nchez to exclude lawsuits against 

nursing homes from the bill’s limits on noneconomic and punitive 

damages. Defeated 11 to 14. 

ROLLCALL NO. 4 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren ....................................................................................................... X 

Mr. Chabot ........................................................................................................ X 

Mr. Issa .............................................................................................................

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................


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ROLLCALL NO. 4—Continued 

Ayes Nays Present 

Mr. Poe ..............................................................................................................

Mr. Chaffetz ......................................................................................................

Mr. Reed ............................................................................................................ X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino .........................................................................................................

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren .......................................................................................................

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson .......................................................................................................

Mr. Pierluisi .......................................................................................................

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 11 14 

5. An amendment by Ms. Chu to add a section to the bill applying antitrust laws to health sector insurers. Defeated 13 to 13. 

ROLLCALL NO. 5 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa .............................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................

Mr. Franks .........................................................................................................

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................ X 

Mr. Griffin .........................................................................................................

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren .......................................................................................................


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ROLLCALL NO. 5—Continued 

Ayes Nays Present 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi .......................................................................................................

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 13 13 

6. An amendment by Ms. Jackson Lee to exclude lawsuits related to irreversible or life altering injuries from the bill’s limits on 

noneconomic and punitive damages. Defeated 13 to 19. 

ROLLCALL NO. 6 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan .........................................................................................................

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................ X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................

Mr. Cohen ..........................................................................................................

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 13 19 


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7. An amendment by Ms. Wasserman Schultz to add a section to 

the bill exempting actions by minors from the bill’s limits on damages. Defeated 14 to 18. 

ROLLCALL NO. 7 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................ X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 14 18 

8. An amendment by Ms. Wasserman Schultz to modify the bill’s 

statute of limitation provision to change the timeframe related to 

the manifestation or discovery of an injury related to a minor. Defeated 14 to 18. 

ROLLCALL NO. 8 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................

Mr. Issa ............................................................................................................. X 


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ROLLCALL NO. 8—Continued 

Ayes Nays Present 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................ X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 14 18 

9. An amendment by Mr. Cohen to exclude from the bill’s limits 

on damages lawsuits related to a foreign object being left inside a 

patient or performing a procedure on the wrong patient or body 

part. Defeated 14 to 19. 

ROLLCALL NO. 9 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................ X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 


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ROLLCALL NO. 9—Continued 

Ayes Nays Present 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 14 19 

10. An amendment by Mr. Scott to strike the provision in the 

bill creating the fair share rule. Defeated 14 to 20. 

ROLLCALL NO. 10 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................ X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 


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ROLLCALL NO. 10—Continued 

Ayes Nays Present 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz ....................................................................................

Total ................................................................................................ 14 20 

11. An amendment by Mr. Quigley to strike the punitive damages exemption for products that comply with FDA Standards. Defeated 16 to 20. 

ROLLCALL NO. 11 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................ X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 16 20 

12. An amendment by Mr. Johnson to specify that nothing in the 

bill shall preempt any applicable State constitutional provisions. 

Defeated 16 to 18. 


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ROLLCALL NO. 12 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan ......................................................................................................... X 

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................ X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 16 18 

13. An amendment by Mr. Johnson to strike the references in 

the bill to ‘‘State or Federal court or pursuant to an alternative dispute resolution system’’ and replaces those references with ‘‘Federal Court.’’ Defeated 16 to 19. 

ROLLCALL NO. 13 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................


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ROLLCALL NO. 13—Continued 

Ayes Nays Present 

Mr. Jordan ......................................................................................................... X 

Mr. Poe ..............................................................................................................

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................ X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 16 19 

14. An amendment by Mr. Johnson to strike provisions in the 

bill that make the bill applicable to health care organizations and 

manufacturers, distributors, suppliers, marketers, promoters and 

sellers of medical products. Defeated 16 to 19. 

ROLLCALL NO. 14 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ......................................................................................................

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ......................................................................................................

Mr. Reed ............................................................................................................ X 

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 


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74 

ROLLCALL NO. 14—Continued 

Ayes Nays Present 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 16 19 

15. An amendment by Mr. Deutch to apply the bill’s provisions 

to lawsuits brought by health care providers, health care organizations, and pharmaceutical and device manufacturers. Defeated 15 

to 20. 

ROLLCALL NO. 15 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu ............................................................................................................. X 

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 


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75 

ROLLCALL NO. 15—Continued 

Ayes Nays Present 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 15 20 

16. An amendment by Ms. Waters to excludes lawsuits involving 

preexisting conditions from the bill’s coverage. Defeated 14 to 20. 

ROLLCALL NO. 16 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 14 20 

17. An amendment by Ms. Waters to amend the McCarran-Ferguson Act to clarify the application of antitrust laws to medical 

malpractice insurers. Defeated 14 to 19. 

ROLLCALL NO. 17 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................


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ROLLCALL NO. 17—Continued 

Ayes Nays Present 

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ...................................................................................................... X 

Mr. Reed ............................................................................................................

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman .......................................................................................................

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 14 19 

18. An amendment by Mr. Nadler to index the bill’s $250,000 

caps for noneconomic and punitive damages to the Consumer Price 

Index. Defeated 15 to 18. 

ROLLCALL NO. 18 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe ..............................................................................................................

Mr. Chaffetz ......................................................................................................


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ROLLCALL NO. 18—Continued 

Ayes Nays Present 

Mr. Reed ............................................................................................................

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 15 18 

19. An amendment by Mr. Deutch to specifically exclude from 

the definition of ‘‘health care liability claim’’ certain intentional 

torts. Defeated 15 to 19. 

ROLLCALL NO. 19 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ......................................................................................................

Mr. Reed ............................................................................................................

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 


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ROLLCALL NO. 19—Continued 

Ayes Nays Present 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 15 19 

20. An amendment by Ms. Jackson Lee to add to the bill a section declaring that it is the sense of the Congress that the bill 

should adhere to the Due Process Clause of the Fifth Amendment. 

Defeated 13 to 19. 

ROLLCALL NO. 20 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ......................................................................................................

Mr. Reed ............................................................................................................

Mr. Griffin ......................................................................................................... X 

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 

Mr. Scott ...........................................................................................................

Mr. Watt ............................................................................................................

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 13 19 


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21. Motion to order the bill favorably reported as amended. Approved 18 to 15. 

ROLLCALL NO. 21 

Ayes Nays Present 

Mr. Smith, Chairman ........................................................................................ X 

Mr. Sensenbrenner, Jr. ......................................................................................

Mr. Coble ........................................................................................................... X 

Mr. Gallegly ....................................................................................................... X 

Mr. Goodlatte .................................................................................................... X 

Mr. Lungren .......................................................................................................

Mr. Chabot ........................................................................................................ X 

Mr. Issa ............................................................................................................. X 

Mr. Pence .......................................................................................................... X 

Mr. Forbes ......................................................................................................... X 

Mr. King ............................................................................................................ X 

Mr. Franks ......................................................................................................... X 

Mr. Gohmert ...................................................................................................... X 

Mr. Jordan ......................................................................................................... X 

Mr. Poe .............................................................................................................. X 

Mr. Chaffetz ......................................................................................................

Mr. Reed ............................................................................................................

Mr. Griffin .........................................................................................................

Mr. Marino ......................................................................................................... X 

Mr. Gowdy ......................................................................................................... X 

Mr. Ross ............................................................................................................ X 

Ms. Adams ........................................................................................................ X 

Mr. Quayle ......................................................................................................... X 

Mr. Conyers, Jr., Ranking Member .................................................................... X 

Mr. Berman ....................................................................................................... X 

Mr. Nadler ......................................................................................................... X 

Mr. Scott ........................................................................................................... X 

Mr. Watt ............................................................................................................ X 

Ms. Lofgren ....................................................................................................... X 

Ms. Jackson Lee ................................................................................................ X 

Ms. Waters ........................................................................................................ X 

Mr. Cohen .......................................................................................................... X 

Mr. Johnson ....................................................................................................... X 

Mr. Pierluisi ....................................................................................................... X 

Mr. Quigley ........................................................................................................ X 

Ms. Chu .............................................................................................................

Mr. Deutch ........................................................................................................ X 

Ms. Sa ́nchez ...................................................................................................... X 

Ms. Wasserman Schultz .................................................................................... X 

Total ................................................................................................ 18 15 

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. 


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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. 5, 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 10, 2011. 

Hon. LAMAR SMITH, 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. 5, the ‘‘Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011.’’ 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Tom Bradley, who can 

be reached at 226–9010. 

Sincerely, 

DOUGLAS W. ELMENDORF, 

DIRECTOR. 

Enclosure 

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 5—Help Efficient, Accessible, Low-cost, Timely Healthcare 

(HEALTH) Act of 2011. 

SUMMARY

H.R. 5 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 those changes 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 private health insurance premiums. 

Because employers would pay less for health insurance for employees, more of their employees’ compensation would be in the 

form of taxable wages and other fringe benefits. As discussed 

below, the bill would also increase revenues because it would result 

in lower subsidies for health insurance. In total, CBO and the staff 

of the Joint Committee on Taxation (JCT) estimate that enacting 

H.R. 5 would increase Federal revenues by about $6 billion over 

the 2011–2021 period. 


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Enacting H.R. 5 would also reduce Federal direct spending for 

Medicare, Medicaid, the government’s share of premiums for annuitants under the Federal Employees Health Benefits (FEHB) program, and other Federal health benefits programs. CBO estimates 

that direct spending would decline by almost $34 billion over the 

2011–2021 period. 

Because enacting the legislation would affect direct spending and 

revenues, pay-as-you-go procedures apply. In total, CBO estimates 

that enacting H.R. 5 would reduce deficits by almost $10 billion 

over the 2011–2016 period and by about $40 billion over the 2011– 

2021 period. 

Federal spending for active workers participating in the FEHB 

program is included in the appropriations for Federal agencies, and 

is therefore discretionary. H.R. 5 would also affect discretionary 

spending for health care services paid by the Departments of Defense (DoD) and Veterans Affairs (VA). CBO estimates that implementing H.R. 5 would reduce discretionary spending by about $1 

billion over the 2012–2021 period, assuming appropriations actions 

consistent with the legislation. 

H.R. 5 contains an intergovernmental mandate as defined in the 

Unfunded Mandates Reform Act (UMRA) because it would preempt 

state laws that provide less protection for health care providers and 

organizations from liability, loss, or damages (other than caps on 

awards for damages). CBO estimates the cost of complying with the 

mandate would be small and would fall well below the threshold 

established in UMRA for intergovernmental mandates ($71 million 

in 2011, adjusted annually for inflation). 

H.R. 5 contains several mandates on the private sector, including 

caps on damages and on attorney fees, the statute of limitations, 

and the fair share rule. The cost of those mandates would exceed 

the threshold established in UMRA for private-sector mandates 

($142 million in 2011, adjusted annually for inflation) in four of the 

first five years in which the mandates were effective, rising to $1.4 

billion per year in 2016, and totaling $3.3 billion over the 2012– 

2016 period. 

ESTIMATED COST TO THE FEDERAL GOVERNMENT

The estimated budgetary impact of H.R. 5 is shown in the following table. The costs of this legislation fall within multiple budget functions, primarily 550 (health) and 570 (Medicare). 


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By Fiscal Year, in Millions of Dollars 

2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2011– 

2016 

2011– 

2021 

CHANGES IN REVENUES 

Estimated Revenues 

On-budget 0 * 0.1 0.2 0.5 0.7 0.7 0.8 0.8 0.9 0.9 1.4 5.4 

Off-budget 0 * * 0.1 0.1 0.1 0.1 0.2 0.2 0.2 0.2 0.3 1.0 

Total 0 * 0.1 0.3 0.5 0.8 0.8 0.9 1.0 1.0 1.1 1.7 6.4 

CHANGES IN DIRECT SPENDING 

Estimated Budget 

Authority 0 –0.1 –0.4 –1.2 –2.5 –3.8 –4.4 –4.7 –5.2 –5.5 –5.9 –8.0 –33.7 

Estimated Outlays 0 –0.1 –0.4 –1.2 –2.5 –3.8 –4.4 –4.7 –5.2 –5.5 –5.9 –8.0 –33.7 

NET CHANGE IN THE DEFICIT FROM CHANGES IN REVENUES AND DIRECT SPENDING 

Impact on the 

Deficit1

On-budget 0 –0.1 –0.5 –1.4 –3.0 –4.5 –5.1 –5.5 –6.0 –6.4 –6.8 –9.4 –39.1 

Off-budget 0 * * –0.1 –0.1 –0.1 –0.1 –0.2 –0.2 –0.2 –0.2 –0.3 –1.0 

Total 0 –0.1 –0.5 –1.5 –3.0 –4.6 –5.2 –5.6 –6.2 –6.5 –7.0 –9.7 –40.1 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Estimated Authorization Level 0 0 * * –0.1 –0.1 –0.2 –0.2 –0.2 –0.2 –0.2 –0.3 –1.1 

Estimated Outlays 0 0 * * –0.1 –0.1 –0.2 –0.2 –0.2 –0.2 –0.2 –0.3 –1.1 

1. Negative numbers denote decreases in deficits. 

* = Increase in revenues, reduction in spending, or reduction in deficits of less than $50 million. 

BASIS OF ESTIMATE

H.R. 5 would establish: 

• A 3-year statute of limitations for medical malpractice 

claims, with certain exceptions, from the date of discovery of 

an injury; 

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

• A cap on awards for punitive damages that would be the 

larger of $250,000 or twice the economic damages, and restrictions on when punitive damages may be awarded; 

• Replacement 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; 

• Sliding-scale limits on the contingency fees that lawyers can 

charge; and 

• A safe harbor from punitive damages for products that meet 

applicable FDA safety requirements. 

Over the 2011–2021 period, CBO and the staff of the Joint Committee on Taxation estimate that enacting H.R. 5 would reduce direct spending by about $34 billion and increase Federal revenues 

by about $6 billion. The combined effect of those changes in direct 

spending and revenues would reduce Federal deficits by $40 billion 

over that period, with changes in off-budget revenues accounting 

for about $1 billion of that reduction in deficits. Because those estimates assume enactment of H.R. 5 near the end of fiscal year 2011, 

no budgetary effects are expected in that year. 


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1See 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-TortlReform.pdf. The estimated effect 

on national health spending reported in that letter is different from the estimated effect for H.R. 

5 because the two proposals would impose different limits on medical malpractice litigation. 

In addition, CBO estimates that implementing H.R. 5 would reduce discretionary spending for the FEHB program, DoD, and VA 

by about $1 billion over the 2012–2021 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 H.R. 5 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 H.R. 5, a significant fraction of the 

potential cost savings has already been realized. Moreover, the estimate assumes that the reduction of about 0.4 percent would be realized over a period of four years, as providers gradually change 

their practice patterns. 

Revenues. CBO estimates that private health spending would 

be reduced by about 0.4 percent. Much of private-sector health care 

is paid for through employment-based insurance that represents 

nontaxable compensation. In addition, beginning in 2014, refundable tax credits will be available to certain individuals and families 

to subsidize health insurance purchased through new health insurance exchanges. (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 H.R. 5 

would lead to an increase in taxable compensation and a reduction 

in subsidies for health insurance purchased through an exchange. 

Those changes would increase Federal tax revenues by an estimated $6.4 billion over the 2011–2021 period, according to estimates by JCT. Social Security payroll taxes, which are off-budget, 

account for $1.0 billion of that increase in Federal revenues. 

Direct Spending. CBO estimates that enacting H.R. 5 would reduce direct spending for Medicare, Medicaid, the Children’s Health 

Insurance Program, the Federal Employees Health Benefits program, the Defense Department’s TRICARE for Life program, and 

subsidies for enrollees in health insurance exchanges by roughly 

$34 billion over the 2011–2021 period. 

For programs other than Parts A and B of Medicare, the estimate assumes that Federal spending for acute care services would 

be reduced by about 0.4 percent, in line with the estimated reductions in the private sector. 

CBO estimates that the reduction in Federal spending for services covered under Parts A and B of Medicare would be larger— 

about 0.5 percent—than in the other programs or in national 

health spending in general. That estimate is based on empirical 

evidence showing that the impact of tort reform on the utilization 


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2One possible explanation for that disparity is that the bulk of Medicare’s spending is on a 

fee-for-service basis, whereas most private health care spending occurs through plans that manage care to some degree. Such plans limit the use of services that have marginal or no benefit 

to patients (some of which might otherwise be provided as ‘‘defensive’’ medicine), thus leaving 

less potential for savings from the reduction of utilization in those plans than in fee-for-service 

systems. 

of health care services is greater for Medicare than for the rest of 

the health care system.2

Spending Subject to Appropriation. CBO estimates that implementing H.R. 5 would reduce Federal spending for health insurance for Federal employees covered through the FEHB program by 

about 0.4 percent—in line with the estimated reductions in the private sector—and would reduce spending for health insurance and 

health care services paid for by the Departments of Defense and 

Veterans Affairs by lesser amounts. CBO expects that the impact 

on those agencies would be proportionally smaller than the impact 

on overall health spending because medical malpractice costs are 

already lower than average for entities covered by the Federal Tort 

Claims Act. In CBO’s estimation, the cost of health insurance and 

health care services funded through appropriation acts would be reduced by $1.1 billion over the 2012–2021 period. 

PAY-AS-YOU-GO CONSIDERATIONS

The Statutory Pay-As-You-Go Act of 2010 establishes budget reporting and enforcement procedures for legislation affecting direct 

spending or revenues. The net changes in outlays and revenues 

that are subject to those pay-as-you-go procedures are shown in the 

following table. Only on-budget changes to outlays or revenues are 

subject to pay-as-you-go procedures. 

CBO Estimate of Pay-As-You-Go Effects for H.R. 5, as ordered reported by the House Committee on the Judiciary on 

February 16, 2011 


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By Fiscal Year, in Millions of Dollars 

2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2011– 2016 2011– 2021 

NET INCREASE OR DECREASE (–) IN THE ON-BUDGET DEFICIT 

Statutory Pay-As-You-Go Impact 0 –110 –475 –1,425 –2,950 –4,450 –5,100 –5,450 –6,000 –6,350 –6,800 –9,410 –39,110 Memorandum: 

Direct spending 0 –100 –400 –1,200 –2,500 –3,800 –4,400 –4,700 –5,200 –5,500 –5,900 –8,000 –33,700 Revenues 0 10 75 225 450 650 700 750 800 850 900 1,410 5,410 


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ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

Intergovernmental Mandates 

The bill contains an intergovernmental mandate because it 

would preempt state laws that would prevent the application of 

any provision of the bill; however, it would not preempt any state 

law that provides greater protections for health care providers and 

organizations from liability, loss, or damages. While the preemption would limit the application of state and local laws, CBO estimates that it would not impose significant costs and would fall well 

below the threshold established in the Unfunded Mandates Reform 

Act for intergovernmental mandates ($71 million in 2011, adjusted 

annually for inflation). 

Other Impacts 

A decline in health care spending is expected to result in a decrease in rates for health insurance premiums. State, local, and 

tribal governments, as employers, would save money as a result of 

lower health insurance premiums precipitated by the bill. State, 

local, and tribal governments that collect income taxes also would 

realize increased tax revenues as a result of increases in workers’ 

taxable income. State spending in Medicaid would decrease by over 

$3 billion over the 2012–2016 period, with additional saving in the 

subsequent years. 

ESTIMATED IMPACT ON THE PRIVATE SECTOR

H.R. 5 contains several mandates on the private sector, because 

it would limit the amount of compensatory damages that a plaintiff 

can receive. 

Compensatory damages are paid to compensate a claimant for 

loss, injury, or harm suffered by a defendant’s breach of duty. Laws 

that directly limit the right of plaintiffs to be compensated for 

losses that they incurred as a result of a defendant’s wrongful acts 

impose a mandate. 

Applying this standard, the cap on non-economic damages, the 

statute of limitations, and the fair-share rule included in H.R. 5 

would be considered mandates on the private sector, as defined by 

UMRA, because they would limit the ability of some claimants to 

recover the entire amount of compensatory damages that could be 

collected under current law. In addition, the cap on attorney fees 

is a mandate because it limits the fees that attorneys might otherwise be able to collect from their clients. The cost of those mandates would exceed the threshold established in UMRA for privatesector mandates ($142 million in 2011, adjusted annually for inflation) in four of the first five years in which the mandates were effective, rising to $1.4 billion per year in 2016, and totaling $3.3 billion over the 2012–2016 period. 

ESTIMATE PREPARED BY: 

Federal Costs: Tom Bradley and Kirstin Nelson 

Impact on State, Local, and Tribal Governments: Lisa RamirezBranum 

Impact on the Private Sector: Stuart Hagen 


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ESTIMATE APPROVED BY: 

Holly Harvey, Deputy Assistant Director for Budget Analysis 

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. 5 will 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. 

Advisory on Earmarks 

In accordance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 5 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. 

Section 1. Short Title. 

Section 2. Findings and Purpose. 

Section 3. Provides for a 3-year statute of limitations with certain 

exceptions for minors, fraud, intentional concealment, and the presence of a foreign body. 

Section 4. 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. 

Section. 5. Provides for sliding scale limits on the contingency 

fees lawyers can charge. 

Section 6. Provides guidelines for the award of punitive damages, 

including guidelines for punitive damages awards not to exceed the 

greater of $250,000 or twice economic damages. Also provides a 

safe harbor from punitive damages for products that meet applicable FDA safety requirements, with exceptions for cases in which information required to be given to the FDA was withheld and cases 

in which illegal payments were made to the FDA. Also includes a 

provision protecting pharmacists and doctors from being named in 

lawsuits for forum-shopping purposes. 

Section 7. Provides authorization for courts to require periodic 

payments for future damages. 

Section 8. Definitions. 

Section 9. Provides that except as provided in the Act nothing in 

the Act shall affect any Federal vaccine-related injury or any defense available to a defendant in a health care lawsuit or action 

under any other provision of Federal law. 

Section 10. Provides a savings clause that saves from preemption 

state laws that limit damages to specific amounts. 

Section 11. Provides that the Act shall apply to any health care 

lawsuit brought in a Federal or State court 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 injury occurred. 


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1 Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011, H.R. 5, 112th 

Cong. (2011) [hereinafter HEALTH Act]. 2 Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2005, H.R. 2580, 

109th Cong. (2005); Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 

2003, H.R. 5, 108th Cong. (2003). 3 Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2002, H.R. 4600, 

107th Cong. (2002). 4 Common Sense Health Care Reform and Affordability Act, H. Amdt. 510, 111th Cong. (2009) 

(offered by Minority Leader John Boehner as a substitute amendment to H.R. 3962, the ‘‘Affordable Health Care for America Act’’). 5See Common Sense Product Liability and Legal Reform Act of 1995, H.R. 956, 104th Cong. 

(1995). 6 ‘‘Tort law at present is almost exclusively state law rather than federal law.’’ U.S. CONGRES- SIONAL RESEARCH SERVICE, Federal Tort Reform Legislation: Constitutionality and Summaries 

of Selected Statutes, 95–797 (Jan. 28, 2010), at 1. 7See Michael I. Krauss & Robert A. Levy, Can Tort Reform and Federalism Coexist? 514 CATO

INST. POL’Y ANALYSIS (2004). 8 National Conference of State Legislatures, 2010–2011 Policies for the Jurisdiction of the Law 

and Criminal Justice Committee: Medical Malpractice, http://www.ncsl.org/default.aspx?Tab 

ID=773&tabs=855,27,671#MedicallMalpractice (last visited Mar. 1, 2011) [hereinafter NCSL 

Policy]. 

Dissenting Views 

INTRODUCTION

H.R. 5 1 is a relic. If the bill goes to the floor this Congress, it 

will mark the tenth time that the House of Representatives has 

considered broad legislation that preempts state medical malpractice laws and the sixth time it has taken up the HEALTH Act 

or substantially similar legislation. This iteration of H.R. 5 is identical to versions introduced in the 108th and 109th Congresses— 

both labeled ‘‘H.R. 5,’’ both passed by the House, neither considered 

by the Senate.2 In the 107th Congress, the HEALTH Act was introduced as H.R. 4600 and passed by the House, but again did not receive consideration in the Senate.3 The HEALTH Act provided the 

basis for the Republican motion to recommit offered at the end of 

debate on the ‘‘Affordable Health Care for Americans Act.’’ That 

motion was voted down 187 to 243.4

The substance of the bill is as dangerous and one-sided as it was 

when it was first proposed almost two decades ago.5 That this legislation has never become law is not surprising. The medical malpractice ‘‘crisis’’ it purports to address does not exist—and, if it did 

exist, H.R. 5 would not solve it. 

These dissenting views begin with background and a description 

of the legislation. It then turns to our general concerns, which include an analysis of the medical malpractice liability ‘‘crisis’’ and 

the policy implications of the bill. We then discuss the mixed messages that the majority has sent on the issue of states’ rights, and 

list our specific concerns with the most troubling provisions of the 

bill. We conclude that the House should reject H.R. 5. 

I. BACKGROUND

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 the ‘‘common law,’’ or judge-made law, of the 

United States civil justice system. Traditionally, tort claims have 

been reserved to the states.6 All 50 states have considered some 

version of limited liability for medical malpractice.7 The National 

Conference of State Legislatures maintains that ‘‘American federalism contemplates diversity among the states in establishing 

these rules.’’ 8


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9 Joan Claybrook, Consumers and Tort Law, 34 FED. B. NEWS & J. 127 (1987). 10 RESTATEMENT (SECOND) OF TORTS § 282 (1965). 11DAVID M. HARNEY, MEDICAL MALPRACTICE 413 (2d ed. 1987). 12 U.S. CONGRESSIONAL RESEARCH SERVICE, Medical Malpractice Insurance and Health Reform, R40862 (Apr. 15, 2010). 13 Id. 14 Id. 15See THE WHITE HOUSE, OFFICE OF THE PRESS SECRETARY, FACT SHEET: Patient Safety 

and Medical Liability Reform Demonstration (Sept. 17, 2009), available at http:// 

www.whitehouse.gov/the-press-office/fact-sheet-patient-safety-and-medical-liability-reform-demonstration. 16See U.S. DEP’T OF HEALTH & HUMAN SERVICES, AGENCY FOR HEALTH CARE RESEARCH AND

QUALITY, Medical Liability Reform & Patient Safety Initiative, http://www.ahrq.gov/qual/liability/ 17 Id. 

The tort system provides various benefits to society. First, it compensates patients who have been injured by the bad acts 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 these harmful products or practices, 

thereby adding to public health and public safety.9

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.’’ 10 In medical malpractice cases, this legal standard is 

based on the practices of the medical profession,11 and is usually 

determined based on the testimony of expert witnesses. 

As with other torts, there are two general types of remedy for 

medical malpractice. Courts may award compensatory damages for 

economic and noneconomic losses such as medical expenses, lost 

wages, pain and suffering, reduced life expectancy and diminished 

quality of life. Courts may also award punitive damages to punish 

and deter willful and wanton conduct. 

Medical malpractice liability reform has historically attracted the 

attention of Congress during insurance industry ‘‘crisis’’periods, 

which occurred during the mid-1970s, the mid-1980s, and the early 

2000s.12 These periods were marked by increases in insurance premiums, reported 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 does not exhibit crisis symptoms.13 Moreover, the industry’s cycle of ‘‘crisis’’ and 

‘‘calm’’ appears to be driven more by the investment practices of insurance companies than by litigation or the legal system.14

Still, the Federal Government has a role to play in encouraging 

the states to adopt more efficient medical malpractice liability systems. In September 2009, President Obama directed the Department of Health and Human Services to help state governments and 

health care providers try alternative methods of resolving malpractice allegations.15 Under this directive, the Agency for 

Healthcare Research and Quality has already funded seven demonstration and various planning grants for a total amount of $25 

million.16 These grants support evidence-based patient safety and 

medical liability projects designed to reduce preventable harms, inform injured patients promptly, and promote settlement of cases 

through alternative dispute resolution.17


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18Pub. L. No. 111–148. 19 Id. § 10607. 20 Id. 21OFFICE OF MGMT. & BUDGET, EXEC. OFFICE OF THE PRESIDENT, BUDGET OF THE UNITED

STATES GOVERNMENT, FISCAL YEAR 2012, at 191, available at http://www.whitehouse.gov/omb/ 

budget/Overview/. 22 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011 (statement of Rep. Trent Franks, Member, House Comm. on the Judiciary). 23 HEALTH Act, 112th Cong. § 9(7). 24 Id. § 4(b). ‘‘In any health care lawsuit, the amount of noneconomic damages recovered may be as much as $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 occurrence.’’ Id. 25 Id. § 4(d). The so-called ‘‘Fair Share’’ rule provides: ‘‘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. A separate judgment shall be 

rendered against each such party for the amount allocated to such party.’’ Id. 26The sponsors of H.R. 5 imagine that a clear percentage of damages can always be apportioned to each defendant. Often, a clear allocation of fault is not possible when multiple defendants are involved. ‘‘Here again is the typical case that two vehicles collide and injure a third 

person. The duties which are owed to the plaintiff by the defendants are separate, and may not 

be identical in character or scope, but the entire liability rests upon the fact that each has conOn March 23, 2010, President Obama signed into law comprehensive health care reform, the Patient Protection and Affordable Care Act.18 Among other important reforms, the bill authorizes $50 million for grants to the states to develop, implement, and 

evaluate alternatives to current tort litigation systems.19 Preference is given to states that have developed alternatives in consultation with relevant stakeholders to enhance patient safety, reduce medical errors and adverse events, and improve access to 

medical malpractice liability insurance.20 President Obama’s budget request for FY 2012 asks for $100 million for additional grants 

to develop medical malpractice liability reform, followed by $50 

million for each fiscal year through 2015.21

II. DESCRIPTION OF THE LEGISLATION

H.R. 5 is not ‘‘designed brilliantly to cooperate with the States 

in trying to encourage better practices in medicine,’’ as its supporters maintain.22 Rather, the bill preempts state law in all 50 

states with a rigid, uniform set of rules designed to cut off restitution for victims of medical malpractice. 

Although it is often described as a ‘‘medical malpractice’’ bill, 

H.R. 5 extends far beyond the field of medical malpractice liability. 

The bill applies to all ‘‘health care lawsuits,’’ and defines the term 

as ‘‘any health care liability claim concerning the provision of 

health care goods or services or any medical product . . . brought 

in a State or a Federal court or pursuant to an alternative dispute 

resolution system.’’ 23 Because this definition is so broad, the bill offers new protections to medical device and pharmaceutical manufacturers, nursing homes, hospitals, HMOs, and insurance companies, among others. In any case involving these defendants, H.R. 

5 limits the amount of noneconomic damages—e.g., damages for 

physical impairment, pain, suffering, and wrongful death—to 

$250,000.24

H.R. 5 eliminates joint and several liability for both economic 

and noneconomic damages.25 In cases where there is more than one 

defendant, joint and several liability ensures that injured patients 

are fully compensated for their losses by making each defendant 

liable for up to the full amount of the damages.26 Prior to markup, 


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tributed to the single result, and that no reasonable division can be made.’’ William Prosser, 

Joint Torts & Several Liability, 25 CAL. L. REV. 413 (1939). 27 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011. 28 HEALTH Act, 112th Cong. § 7(a). 29 Id. § 7(b)(2). 30 Id. § 7(c)(1)(A)(i). 31 Id. § 7(c)(4). 32 Id. § 7(c)(1)(A)(ii). 33 HEALTH Act, 112th Cong. § 7(c)(3). 34 Id. § 5(a). 

H.R. 5 also included a provision that would repeal the ‘‘collateral 

source’’ rule, which prevents wrongdoers from reducing damage 

awards by any amount a patient may have received from health insurance, disability insurance, or other outside sources. The committee accepted an amendment offered by Rep. Robert Scott to remove this cost-shifting provision from the bill.27 It was the only 

amendment accepted by the majority during the markup of H.R. 5. 

H.R. 5 further limits a patient’s ability to recover punitive damages in a number of specific and peculiar ways. First, the bill imposes a heightened standard for the recovery of punitive damages. 

In order to recover punitive damages at all, a patient must demonstrate by clear and convincing evidence that a defendant ‘‘acted 

with malicious intent’’ to injure the patient, or that the defendant 

‘‘deliberately failed to avoid unnecessary injury’’ that he or she 

knew the patient was ‘‘substantially certain’’ to suffer.28 Second, 

even if a patient can meet this burden, the bill limits punitive damages to two times the amount of economic damages or $250,000, 

whichever is greater.29

In addition, H.R. 5 altogether bans punitive damages in cases 

that involve manufacturers of drugs and devices that are approved 

by the FDA.30 The only exceptions to this rule are for cases in 

which the defendant ‘‘knowingly misrepresented to or withheld 

from the Food and Drug Administration information that is required to be submitted’’ and cases in which a person bribes an FDA 

official ‘‘for the purpose of either securing or maintaining approval, 

clearance, or licensure.’’ 31 The bill extends this absolute ban on punitive damages to manufacturers of drugs and devices that are not 

approved by the FDA but are ‘‘generally recognized among qualified experts as safe and effective’’ 32 and to all defendants with respect to the packaging or labeling of a pharmaceutical.33 These last 

rules have the pernicious effect of sidestepping federal safety regulations in addition to limiting a patient’s ability to recover damages 

in court. 

H.R. 5 sets strict limits on the amount an attorney may receive 

in contingency fee payments. Specifically, the total amount of all 

contingent fees for representing all claimants in a health care lawsuit may not exceed: (1) 40% of the first $50,000 recovered by the 

claimant(s); (2) 33 1/3% of the next $50,000 recovered by the claimant(s); (3) 25% of the next $500,000 recovered by the claimant(s); 

and (4) 15% of any amount by which the recovery by the claimant(s) is in excess of $600,000.34 The bill also gives courts the authority to approve fees lower than those provided for by this formula. 

H.R. 5 also introduces a restrictive statute of limitations for medical malpractice claims. A ‘‘health care lawsuit may be commenced 

no later than 3 years after the date of manifestation of injury or 


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35 Id. § 3 (emphasis added). 36 Id. § 8(a). ‘‘In any health care lawsuit, if an award of future damages . . . equaling or ex- ceeding $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.’’ Id. (emphasis added). 37See, e.g., 151 Cong. Rec. H6990 (daily ed. July 28, 2005). ‘‘The costs of the tort system continue to take their toll on the Nation’s economy. Medical professional liability insurance rates 

have skyrocketed, causing major insurers to drop coverage or raise premiums to unaffordable 

1 year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs 

first.’’ 35 The effect of this provision is that a claimant often has 

only one year from the date of discovering the injury to file suit. 

A claimant will, quite often, discover an injury on the same day an 

injury manifests itself. This provision cuts in the opposite direction 

for patients whose injuries have long latency periods. A patient 

might manifest symptoms of HIV or hepatitis long before discovering the cause of the injury, but have no recourse if the 3-year 

deadline has expired. 

H.R. 5 further disadvantages patients by requiring judges to permit periodic payments at the request of the defendant.36 To the extent that a patient can successfully negotiate the obstacles set up 

by the bill, actual payment of damages could take years—assuming 

the defendant remains solvent. 

H.R. 5 written to be ‘‘one-way preemptive’’—it only supercedes 

existing state and federal laws that are favorable to patients, and 

it does so on an incredibly sweeping scale. Many hard-earned patient and consumer protections fall to the wayside. For example, 

the most popular provisions of the Affordable Care Act, many of 

them already in effect, are weakened by this legislation. An insurance company might deny coverage of a child with a pre-existing 

condition, rescind coverage when a patient gets sick, or kick a child 

off a parent’s insurance plan before his or her 26th birthday. No 

matter how blatant the violation, that company would have all of 

the new protections afforded to it under H.R. 5. Even if a family 

could overcome the procedural obstacles H.R. 5 puts in its path, it 

would be entitled to no more than $250,000 in noneconomic damages. That capped award might simply be the cost of doing business for a wealthy insurance company. 

III. GENERAL CONCERNS

Our general concerns with H.R. 5 stem from one of the bill’s central flaws: this legislation was designed to address an insurance 

‘‘crisis’’ that does not exist. This section demonstrates that the investment market, not litigation, drives the insurance industry 

through cycles of ‘‘crisis’’ and calm, and that H.R. 5 exacerbates the 

real crisis—the epidemic of actual medical malpractice. Moreover, 

the bill will not accomplish any of its supporters’ stated goals—it 

will not lower insurance premiums, have a substantive effect on 

‘‘defensive medicine,’’ or significantly impact the cost of health care. 

A. The cycle of ‘‘crisis’’ and ‘‘calm’’ is driven by the investment practices of insurance companies. 

In past sessions of Congress, supporters of the bill have pointed 

to a common set of symptoms in the insurance market—most often, 

‘‘skyrocketing’’ insurance premiums and difficulties in finding medical malpractice liability coverage.37 Restricting the ability of paVerDate Mar 15 2010 06:52 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00092 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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levels. We have heard case after case where this last occurred nationwide. . . . The HEALTH 

Act . . . addresses this crisis by eliminating frivolous lawsuits by making health care more accessible and more affordable.’’ Id. (statement of Rep. Steve Chabot). 38 U.S. CONGRESSIONAL RESEARCH SERVICE, Medical Malpractice Insurance and Health Reform, R40862 (Feb. 22, 2011). 39 Id. 40See, e.g., U.S. CONGRESSIONAL RESEARCH SERVICE, Medical Malpractice Insurance: An Economic Introduction and Review of Historical Experience, RL31886 (Oct. 2, 2009). 41 Health Care Litigation Reform: Does Limitless Litigation Restrict Access to Health Care? 

Hearing on H.R. 4600 Before the Subcomm. on Commercial and Admin. Law of the H. Comm. 

On the Judiciary, 107th Cong. 15 (2002) (statement of Joanne Doroshow, Executive Director, 

Center for Justice & Democracy). 42 U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, Impact of Legal Reforms on Medical 

Malpractice Costs, Pub. No. OTA–BP–H–119, at 13 (1993). 

tients to recover damages for malpractice, they argued, would reduce the frequency of malpractice lawsuits. This would, in theory, 

lower medical malpractice premiums, making insurance more 

available to doctors and doctors more available to patients. This 

policy assumption—that discouraging litigation mitigates the insurance ‘‘crisis’’—does not square with the facts. 

From a historical perspective, Congress paid closest attention to 

medical malpractice liability insurance during ‘‘crisis’’ periods in 

the mid-1970s, the mid-1980s, and the early 2000s.38 These periods 

are punctuated by the same symptoms described by supporters of 

H.R. 5—increases in malpractice insurance premiums, claims of insurance scarcity, and stories of physicians abandoning specialties 

or communities because of the high cost of insurance.39 In each instance, the ‘‘crisis’’ abated when the financial market stabilized.40

Experts attribute this cycle of crisis and calm to the investment 

practices of the insurance industry—not to the frequency of litigation or the size of jury awards. Joanne Doroshow, Executive Director for the Center for Justice and Democracy, testified at a hearing 

of the Subcommittee on Commercial and Administrative law in the 

108th Congress and explained: 

Insurers make their money from investment income. During years of high interest rates and/or insurer profits, insurance companies engage in fierce competition for premium dollars to invest for maximum return. More specifically, insurers engage in severe underpricing to insure 

very poor risks just to get premium dollars to invest. But 

when investment income decreases because interest rates 

drop, the stock market plummets, and/or cumulative price 

cuts make profits become unbearably low, the industry responds by sharply increasing premiums and reducing coverage, creating a ‘‘liability insurance crisis.’’ 41

This market-driven cycle repeats itself over and over again. 

During the ‘‘crisis’’ of the 1970s, insurance companies increased 

premiums for medical malpractice insurance by large margins and 

denied coverage to doctors in certain specialties.42 In response, the 

states initiated reforms designed to provide alternative sources of 

insurance and to reduce the volume and costs of medical malpractice claims. Physician- and hospital-owned insurance companies emerged as an alternative to traditional insurance providers, 

and, for at least a decade, insurance was accessible and affordable 

in a market dominated by these companies. 

Prior to the ‘‘crisis’’ of the mid-1980s, a favorable investment 

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43 Id. at 15. 44 Id. 45Democratic Forum on Malpractice, Feb. 11, 2003, Transcript at 32–33. 46Mitchell J. Nathanson, It’s the Economy (and Combined Ratio), Stupid: Examining the Medical Malpractice Litigation Crisis Myth and the Factors Critical to Reform, 108 PENN. ST. L. 

REV. 1077 (2004). 

able premium rates for medical malpractice insurance. When interest rates dropped in 1984, however, insurance providers responded 

by drastically increasing the cost of medical malpractice insurance.43 In some instances, insurance rates more than tripled for 

manufacturers, municipalities, doctors, nurses, midwives, daycare 

centers, nonprofit groups, and other customers of liability insurance.44

The roots of the most recent ‘‘crisis’’ were described by Raul 

King, an economist and insurance industry expert with Congressional Research Service, at a forum held by House Democrats in 

2003: 

What has happened in the 1990s, after the last medical 

malpractice in the mid-‘80s, is that in the 1990s the markets were up. For an extended period of time, interest 

rates were relatively low, but the bottom line is that investments were very, very high, and they can continue to 

price their business in such a way to maximize premium 

for investment purposes. 

Some would argue that, starting in 2000, when not only 

the medical malpractice area but insurance in general, not 

just medical malpractice but all P& C, property and casualty insurance, when the market cycle started to turn, investments were not what they expected. Interest rates 

were low, and across the board rates started firming up. 

Incidentally, when the market is considered soft, coverage is readily available. Prices are relatively low. The insurance company will make their products available in the 

marketplace, and they will aggressively sell as much as 

they can because they want the business, and it’s intensely 

competitive. 

Some would argue that this soft market that went beyond the six years but right close to ten years, and this is 

what the consumer groups have argued is cash flow underwriting—what Bob Hunter, for example, would argue is 

cash flow underwriting. They run into a problem. Their investments can’t cover their premium losses and underwriting losses. 

So what they have to do is increase premiums dramatically. They have to in some cases withdraw from the marketplace, change the amount of insurance they’ll make 

available, in the marketplace. Rather than selling a 

$500,000 policy, they’ll sell only a $250,000 policy, and 

that’s all that’s available in a given state.45

Once again, when the bottom dropped out on the investment market, premiums increased and availability of coverage declined. Although each crisis ‘‘brought about attempts at malpractice reform 

in many states, it only subsided when the economy finally recovered and interest rates rose.’’ 46


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47 AMERICAN MEDICAL ASS’N, REPORT 35 OF THE BOARD OF TRUSTEES (A–02) ON LIABILITY REFORM, at 2. 48 Id. 49Peter Eisler, et al., Hype Outraces Facts in Malpractice Debate, USA TODAY, Mar. 5, 2003 

available at http://www.usatoday.com/news/nation/2003–03–04-malpractice-coverlx.htm. 50 Id. 51See Medical Liability Reform—Cutting Costs, Spurring Investment, Creating Jobs, Hearing 

Before the H. Comm. on the Judiciary, 112th Cong., Jan. 20, 2011 (statement of Joanne 

Doroshow, Executive Director, Center for Justice and Democracy). Judiciary Republicans voted 

down two amendments that would have addressed this exemption. An amendment by Rep. Judy 

Chu would have applied antitrust laws to health-sector insurance providers. Another amendment by Rep. Maxine Waters and Rep. Mike Quigley that would have repaired the exemption 

in the McCarran-Ferguson Act. Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 

112th Cong., Feb. 16, 2011. 

Both the American Medical Association and members of the insurance industry acknowledge that these periods of ‘‘crisis’’ are 

market driven. In a 2003 internal memo, the AMA’s Board of 

Trustees recognized that ‘‘the insurance underwriting cycle is now 

at a point where insurers have both pricing power and a need to 

increase revenues through premiums as returns on investments are 

no longer able to subsidize underwriting losses and as insurers 

have suffered large claim losses in other areas.’’ 47 The memo explains further: 

For several years, insurers kept prices artificially low 

while competing for market share and new revenue to invest in a booming stock market. As the bull market 

surged, investments by these historically conservative insurers rose to 10.6% in 1999, up from a more typical 3% 

in 1992. With the market now in a slump, the insurers can 

no longer use investment gains to subsidize low rates. The 

industry reported realized capital gains of $381 million 

last year, down 30% from the high point in 1998, according 

to the A.M. Best Company, one of the most comprehensive 

sources of insurance industry data.48

When investment income became scarce, insurance companies increased premiums to turn a profit. This observation has been confirmed by the National Conference of State Legislatures.49 The 

Physicians Insurers Association of America reported that investment income constituted 47% of insurance company income during 

the ‘‘calm’’ of 1995, but only 31% during the ‘‘crisis’’ of 2001.50

H.R. 5 does nothing to address this boom-and-bust cycle. It does 

nothing about the investment practices of the insurance industry. 

It does nothing to repeal the anomalous McCarran-Ferguson antitrust exemption for the insurance industry, which is critical to stabilizing the medical malpractice insurance market.51 It does nothing to require that premium increases be justified, or to permit 

health care providers to challenge increases when they occur. Instead, H.R. 5 pretends that a series of restrictions on patients’ 

rights will prevent the next ‘‘crisis.’’ 

B. No insurance ‘‘crisis’’ exists today. 

Although supporters of H.R. 5 may suggest otherwise, the evidence shows that there is no insurance ‘‘crisis’’ today. According to 

the Medical Liability Monitor, premiums for medical malpractice 


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52 Amy Lynn Sorrel, Liability Premiums Stay Stable, but Insurers Warn This Might Not Last, 

AM. MED. NEWS (Nov. 23, 2009) available at http://www.ama-assn.org/amendnews/2009/11/23// 

prl121123.htm. See also Medical Liability Monitor (Oct. 2008). 53 Id. 54 U.S. CONGRESSIONAL RESEARCH SERVICE, Medical Malpractice Insurance: An Economic Introduction and Review of Historical Experience, RL31886 (October 2, 2009) (citing A.M. BEST

STATISTICAL STUDY, Continued Improvement in 2005 Results as Medical Malpractice Premium 

Growth Subsides (Aug. 28, 2006), and A.M. BEST’S SPECIAL REPORT, U.S. MEDICAL PROFESSIONAL LIABILITY 2008 MARKET REVIEW (Apr. 27, 2009). 55 Americans for Ins. Reform, True Risk: Medical Liability, Malpracitce Insurance and Health 

Care (July 2009) available at http://insurance-reform.org/pr/090722.html. 56 A.M. BEST’S SPECIAL REPORT, Solid Underwriting Undercut by MPLI’s Investment Losses 

(Apr. 27, 2009). 57 Americans for Ins. Reform, True Risk: Medical Liability, Malpractice Insurance and Health 

Care (July 2009). See also Medical Liability Reform—Cutting Costs, Spurring Investment, Creating Jobs, Hearing Before the H. Comm. on the Judiciary, 112th Cong., Jan. 20, 2011 (statement of Joanne Doroshow, Executive Director, Center for Justice and Democracy). 58 Nat’l Center for State Courts, Examining the Work of State Courts: An Analysis of 2008 

State Court Caseloads (2010) available at http://www.ncsconline.org/dlresearch/csp/2008lfiles/ 

EWSC–2008–Online%20Version%20v2.pdf. 59 Id. 60 Nat’l Practitioner Databank, Annual Report (2006) available at http://www.npdbhipdb.hrsa.gov/pubs/stats/2006lNPDBlAnnuallReport.pdf. 61Letter from J. Robert Hunter, Director of Insurance, Consumer Federation of America, to 

Joanne Doroshow, Executive Director, Center for Justice & Democracy (Oct. 13, 2001). 

insurance ‘‘have eased nationwide.’’ 52 In 2009, 58 percent of premiums stayed level and 36 percent of premiums fell.53 According 

to A.M. Best, after reaching an average annual increase of 14.2 

percent during the height of the ‘‘crisis’’ in 2003, medical malpractice premiums began to fall—declining by 6.6 percent in 2007, 

and by an additional 5.3 percent in 2008.54 Without any of the federal intervention contemplated by H.R. 5, the ‘‘crisis’’ of the mid2000s appears to have peaked in 2004 and abated by 2006. Premiums have dropped in every state—whether or not court systems 

have been modified to limit liability for medical malpractice defendants.55

Insurance companies are also doing well, especially compared to 

other sectors of the economy. In 2007, medical malpractice insurers 

had an overall return on net worth of 15.6 percent, well over the 

average 12.5 percent return for the entire property and casualty insurance industry.56 Profits are holding. In 2009, according to the 

National Association of Insurance Commissioners, return on net 

worth for medical malpractice insurers remained steady at 15.3 

percent.57

Medical malpractice cases are also less frequent than at any time 

in the last decade. According to the National Center for State 

Courts, only 4.4 percent of the civil caseload is comprised of tort 

cases; of these, only 2.8 percent are medical negligence cases.58

Even that share has declined by fifteen percent over the past ten 

years.59 The National Practitioner Databank, which tracks all medical malpractice payments by all physicians in the United States, 

confirms the same downward trend.60

In addition, jury awards are stable. An actuarial analysis conducted by J. Robert Hunter, Director of Insurance of the Consumer 

Federation of America, shows that the average medical malpractice 

payout hovered at just under $30,000 for an entire decade—from 

1990 to 2000—without adjustment for inflation.61 According to a 

more recent study by the National Center for State Courts, medical 

malpractice claims actually declined 15 percent from 1999 to 


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62 National Center for State Courts, supra note 58. 63See Americans for Ins. Reform, supra note 55. 64 U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STAT., Tort Bench and Jury Trials in State 

Courts, 2005 (Nov. 2009). 65 Id. 66 Id. 67 CENTERS FOR DISEASE CONTROL, NAT’L CENTER FOR HEALTH CARE STAT., Deaths/Mortality, 

2005, http://www.cdc.gov/nchs/fastats/deaths.htm. 68TO ERR IS HUMAN: BUILDING A SAFER HEALTH SYSTEM, (Linda T. Kohn, Janet M. Corrigan, 

and Molla S. Donaldson, eds. Institute of Medicine, National Academy Press 1999) [hereinafter 

IOM Report]. 69 Id. 70 U.S. CONGRESSIONAL BUDGET OFFICE, Key Issues 150–54 (Dec. 2008). 71 Institute for Healthcare Improvement, Campaign—FAQs, http://www.ihi.org/IHI/Programs/ 

Campaign/Campaign.htm?TabId=6. 72 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). Judiciary Republicans voted down an amendment offered by Rep. 

Steve Cohen that would exempt wrong-site or wrong-patient surgeries from the $250,000 cap 

on non-economic damages. Continued Consideration of H.R. 5, The Help Efficient, Accessible, 

Low-cost, Timely Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th 

Cong., Feb. 16, 2011. 73See Nagy, et al., Radio Frequency Identification Systems Technology in the Surgical Setting, 

SURGICAL INNOVATION, Vol. 13, No. 1 (March 2006). 

2008.62 Insurance industry data shows that claims have dropped 45 

percent after adjusting for inflation.63

H.R. 5 attempts to contain allegedly ‘‘rampant’’ punitive damages, but the evidence shows that punitive damages are rarely rewarded. According to the Bureau of Justice Statistics, in 1996 only 

1.1 percent of medical malpractice plaintiffs who prevailed at trial 

were awarded punitive damages.64 Only 1.2 percent of those 

awards were awarded by juries.65 In 2005, there were too few medical malpractice cases in which punitive damages were awarded to 

provide a statistically reliable estimate of the amount of punitive 

damages in state courts.66

C. Medical malpractice is the real crisis. 

At best, H.R. 5 is untimely—it is designed to lower premium 

rates that have already dropped, and curb damages that are rare 

and trending downward. In practice, the bill ignores the real medical malpractice crisis in America. 

Medical error is the sixth leading cause of death in the United 

States.67 In 1999, the Institute of Medicine of the National Academy of Sciences estimated that between 44,000 and 98,000 hospital 

deaths in the United States each year are attributable to medical 

mismanagement—at a cost of $29 billion annually.68 This estimate 

does not include losses for medical errors at outpatient centers, 

physician offices, or clinics. During the period of study, the number 

deaths due to medical malpractice was greater than the number of 

people who died due to motor vehicle accidents (43,458), breast cancer (42,297), or AIDS (16,516).69

The Congressional Budget Office estimated 181,000 severe injuries occurred due to medical negligence in 2003.70 According to a 

2008 report by the Institute for Healthcare Improvement, there are 

fifteen million incidents of negligent medical harm each year.71 The 

Joint Commission Center on Transforming Healthcare reports as 

many as forty wrong site, wrong side, and wrong patient procedures every week.72 The Journal of American Medicine reports that 

there are 1,500 incidents of surgical tools left in patients each 

year.73 Notably, the majority rejected an amendment offered by 


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74 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011. 75 U.S. DEP’T OF HEALTH AND HUMAN SERVICES, OFFICE OF THE INSPECTOR GENERAL, Adverse 

Events in Hospitals: National Incidence Among Medicare Beneficiaries (Nov. 2010), at i-ii. 76 Id. at ii-iii. 77 Eisler et al., supra note 49. 78Lee Harris, Tort Reform as Carrot-and-Stick, 46 HARV. J. ON LEGIS. 163, 169 (2009). 79 Id. (citing Lori Andrews, Studying Medical Error in Situ: Implications for Malpractice Law 

and Policy, 54 DEPAUL L. REV. 357 (2005)). 80 Cathleen F. Crowley & Eric Nalder, Year After Report, Patients Still Face Risks, TIMES

UNION, Sept. 20, 2010. 81 Christopher P. Landrigan et al., Temporal Trends in Rates of Patient Harm Resulting from 

Medical Care, 363 N. ENGL. J. MED 2124–34 (2010). 82 American Ass’n for Justice, supra note 72, at 9. 83 AMA webpage on the National Practitioner Databank, http://www.ama-assn.org/ama/pub/ 

physician-resources/legal-topics/business-management-topics/national-practitioner-databank.shtml. 84Terry Langford, Texas Laws are Vague, Abandoned or Unfunded, HOUSTON CHRONICLE, July 30, 2009. 85 Id. 86 U.S. CONGRESSIONAL RESEARCH SERVICE, supra note 54. 

Rep. Steve Cohen that would have exempted these incidences of 

gross negligence from the $250,000 cap on non-economic damages.74

Medical malpractice pervades American society. A November 

2010 study by the Office of the Inspector General of the Department of Health and Human Services found that approximately one 

in seven hospital patients experience a medical error, and that 

these errors cost Medicare $4.4 billion every year.75 This sum does 

not include ‘‘additional costs required for follow-up care after the 

sample hospitalizations.’’ 76 Medical errors occur in more than one 

in ten cases involving children with complex medical problems.77

Two in five chronically ill patients receive care inconsistent with 

medical literature.78 One 15-year observational study showed that 

45.8 percent of patients experience least some error while receiving 

medical treatment.79

These figures may even be under-reported. Twenty-three states 

have no medical error detection programs, and even those with 

mandatory programs likely miss a majority of the harm.80 The New 

England Journal of Medicine reports that ‘‘Most medical centers 

continue to depend on voluntary reporting to track institutional 

safety, despite repeated studies showing the inadequacy of such reporting.’’ 81 The only national database of malpractice claims, the 

National Practitioners Databank, remains closed to the public.82

The American Medical Association goes so far as to offer its members a primer on ‘‘How to evade a report to the NPDB.’’ 83

Changes to court systems that ignore patient safety do little to 

reverse this trend. After Texas enacted its cap on non-economic 

damages, complaints against Texas doctors to the state medical 

board rose from 2,942 to 6,000, more than half of which were focused on poor quality of medical care.84 And yet, according to a 

lengthy investigation by the Houston Chronicle, ‘‘Texas has fumbled attempts to establish a medical error reporting system, often 

leaving patients to discover errors the hard way—when a mistake 

costs them their livelihood or the life of a loved one.’’ 85

The costs of medical malpractice are staggering. CRS has found 

that ‘‘the damage from medical malpractice usually requires additional treatment to repair, sometimes an entire lifetime of medical 

treatment.’’ 86 In addition to these human costs, the total financial 

cost of medical malpractice—including lost income, lost household 


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87See CENTERS FOR DISEASE CONTROL, SUPRA note 67. 88Lee Harris, supra note 78 at 178. 89 Id. (citing Catherine Sharkey, Unintended Consequences of Medical Malpractice Damage 

Caps, 80 N.Y.U.L. REV. 391, 410 (2005) (noting that physicians are not experience-rated and, 

thus, both ‘‘negligent and non-negligent physicians pay similar premiums’’)). 90 Id. 91Mitchell J. Nathanson, supra note 46 at 1109. 92 Joseph Hallinan, Heal Thyself: Once Seen as Risky, One Group of Doctors Changes Its Ways, 

WALL ST. J., June 21, 2005, at 1. 93 Central line infections and surgical site infections are common examples of ‘‘hospital acquired conditions.’’ Pub. L. No. 111–148 § 3008. 94 Id. § 3025. 95 Id. § 3001 

production, disability and health care costs—is estimated by the 

Centers for Disease Control to be between $17 billion and $29 billion each year.87

And yet, there is a profound disconnect between the actual incidence of medical malpractice and the insurance industry. According 

to one analysis published in the Harvard Journal on Legislation: 

‘‘Bad doctors are not penalized by insurance companies, which do 

not normally take into account previous performance when assessing medical malpractice insurance rates.’’ 88 Instead, insurance 

companies charge premiums based on general factors like physician 

speciality, without giving an ‘‘account for the competence, skill, and 

quality of medical services provided by the physician.’’ 89 The problem is compounded by lax discipline for habitually negligent health 

care providers. In one study published by N.Y.U., state licensing 

boards were found to have disciplined less than 17 percent of doctors with five or more medical malpractice payouts on record.90

This disconnect is the foundation for H.R. 5. By enacting sweeping changes to the court systems in all 50 states, this bill gives all 

health care providers—all physicians, hospitals, clinics, pharmaceutical manufacturers, device manufacturers, and insurance companies—the benefit of additional liability protection in cases of 

medical malpractice. By forcing the states to cap non-economic 

damages, the bill disproportionately penalizes members of vulnerable groups, such as women, children, and minorities, all of whom 

are more likely to realize comparatively substantial non-economic 

losses. Capping damages ‘‘only serves to compel the most grievously 

injured at the hands of the most clearly negligent and/or reckless 

to bear the brunt of reform.’’ 91

Fortunately, there appear to be effective policy solutions for addressing the medical malpractice crisis. For example, the Wall 

Street Journal has found that, by committing to patient safety, anesthesiologists have halved the rate at which they are sued for malpractice, and pay for malpractice insurance at rates lower than the 

rates they paid 20 years ago.92

Along these lines and under the leadership of the Obama Administration, the Affordable Care Act provides financial incentives for 

health care providers to improve care and reduce unnecessary errors. For example, Medicare payments will be reduced for ‘‘hospital 

acquired conditions’’ 93 and high rates of readmission.94 The Act 

also creates the ‘‘Hospital Value Based Purchasing Program,’’ 

which gives health care providers incentives to perform well on a 

set of quality measures that include efficiency, outcome, and patient experience of care.95 These reforms are the first steps towards 

a national plan to address medical malpractice. The Act instructs 


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96 Id. § 3021. 97Markup of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) 

Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 9, 2011 (statement of Rep. 

Lamar Smith, Chairman, House Comm. on the Judiciary). 98See Study Finds No Link Between Tort Reforms and Insurance Rates, LIABILITY WEEK, July 

19, 1999 (quoting Sherman Joyce, President, American Tort Reform Association); Michael 

Prince, Tort Reforms Don’t Cut Liability Rates, Study Says, Bus. Ins., July 19, 1999 (quoting 

Victor Schwartz, General Counsel, American Tort Reform Association); Press Release, AIA Cites 

Fatal Flaws in Critic’s Reports on Tort Reform, Am. Ins. Ass’n, Mar. 13, 2002. 99 H.R. 5 incorporates ‘‘California’s time-tested reforms at the Federal level.’’Markup of H.R. 

5, The Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011 and the 

Committee’s Oversight Plan, 112th Cong., Feb. 9, 2011 (statement of Rep. Lamar Smith, Chairman, House Comm. on the Judiciary). 100 Cal. Civ. Code § 3333.2. 101 Id. § 1431.2. 102 Cal. Bus. & Prof. Code § 6146. 103 Cal. Civ. Proc. Code § 340.5. 104Proposition 103 Enforcement Project, MICRA: The Impact on Health Care Costs of California’s Experiment with Restrictions on Medical Malpractice Lawsuits, 1995. 105 Brian A. Liang & LiLan Ren, Medical Liability Insurance and Damage Caps: Getting Beyond Band Aids to Substantive Systems Treatment to Improve Quality and Safety in Healthcare, 

30 AM. J. L. & MED. 501, 506 (2004). 106 Id. 

the Center for Medicare and Medicaid Innovation to develop new 

concepts for improving patient care and reducing costs.96

Unfortunately, H.R. 5 ignores this progress. Instead of encouraging health care providers to make fewer mistakes, the bill cuts 

off a patient’s right to be made whole when mistakes are made. Effective legislation would address the real crisis directly. H.R. 5 addresses a crisis that does not exist. 

D. Even if the crisis did exist, H.R. 5 would not lower medical malpractice insurance premiums. 

In his pitch for H.R. 5, Chairman Smith argued that, because of 

a statewide $250,000 cap on noneconomic damages, ‘‘the rate of increase in medical professional liability premiums in California 

since 1976 has been 280% lower than the rate of increase experienced in other states.’’ 97 A closer look at the evidence will show 

that regulation of the insurance industry, not ‘‘tort reform,’’ stabilized the cost of insurance in California.98

The California experience is instructive. H.R. 5 is based largely 

on California’s ‘‘Medical Injury Compensation Reform Act’’ 

(MICRA).99 Enacted in 1975, MICRA caps noneconomic damages at 

$250,000,100 eliminates joint and several liability for noneconomic 

damages,101 limits attorneys’ fees on a sliding scale,102 and imposes 

a strict statute of limitations on medical malpractice claims.103

These new protections for defendants had mixed success, at best. 

In 1995, a comprehensive study of MICRA’s impact found: (1) per 

capita health care expenditures in California exceeded the national 

average every year between 1975 and 1993; (2) the rise in the cost 

of health care in California exceeded the rate of inflation every 

year between 1975 and 1993; (3) hospital patient costs were higher 

in California than in almost any other state; and (4) California’s 

medical malpractice liability premiums nearly doubled in the 12 

years following the enactment of MICRA.104 In 1999, the California 

State Assembly Committee on the Judiciary concluded that medical 

malpractice premiums had not declined since the enactment of 

MICRA—California had, at best, experienced a slower rate of premium increase.105 Further, MICRA altogether failed to decrease 

the number of malpractice cases filed in California courts.106


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107Testimony of Harvey Rosenfeld, Before the House Comm. on Energy and Commerce, Feb. 

10, 2003; see also Joseph B. Treaster, Malpractice Insurance: No Clear or Easy Answers, N.Y. 

TIMES, Mar. 5, 2003. 108 Id. 109 Id. 110Markup of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) 

Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 9, 2011 (statement of Rep. 

Lamar Smith, Chairman, House Comm. on the Judiciary). 111 Id. 112Memorandum from Lamar Smith, Chairman, House Comm. on the Judiciary, to Members 

of the Committee (Feb. 4, 2011) at 2 (on file with author). 113 U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, supra note 42, at 92. 114Michelle M. Mello & Troyen A. Brennan, Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform, 80 TEX. L. REV. 1595 (2002). 115 Id. 

To the extent that the cost of insurance stabilized in California 

after 1975, much of the credit is owed to Proposition 103, which became law in 1988. Among other reforms of the insurance industry, 

Proposition 103 required insurance companies to hold public hearings before increasing premiums more than 15 percent. This requirement effectively froze the cost of medical malpractice liability 

insurance for many health care providers.107 Under the rollback 

provisions of Proposition 103, insurance companies refunded over 

$1.2 million to policyholders.108 Within three years, medical malpractice insurance had dropped in cost, on average, by 20.2 percent.109 Reform of the insurance industry, not of the court system, 

lowered the cost of insurance. 

E. H.R. 5 will have no substantial effect on ‘‘defensive medicine.’’ 

Supporters of H.R. 5 frequently invoke ‘‘the waste in our health 

care system caused by so-called ‘defensive medicine.’ ’’ 110 Defensive 

medicine occurs, they argue, ‘‘when doctors are forced by the threat 

of lawsuits to conduct tests and prescribe drugs that aren’t medically required.’’ 111 The majority’s briefing memo for the markup of 

H.R. 5 cites to a ‘‘survey from Emergency Physicians Monthly’’ as 

proof that ‘‘the HEALTH Act’s limits on noneconomic damages are 

essential to reducing defensive medicine,’’ mostly because ‘‘non-economic caps are . . . physicians’ preferred choice of malpractice reform.’’ 112 Although doctors certainly have financial incentives to 

prefer damage caps, there is little evidence that the practice of defensive medicine exists as the majority defines it, and even less to 

suggest that H.R. 5 would reduce its frequency. 

A landmark study by the non-partisan Office of Technology Assessment found that ‘‘[c]onventional tort reforms that tinker with 

the existing process for resolving malpractice claims while retaining the personal liability of the physician are [unlikely to] alter 

physician behavior.’’ 113 Most defensive medicine studies since have 

failed to demonstrate any real impact on medical practice arising 

from higher malpractice premiums.114

The reality is that much of ‘‘defensive medicine’’ results, not from 

threat of litigation, but from financial incentives to order unnecessary tests and procedures. In a fee-for-service health care system, 

health care providers benefit financially by providing additional 

services.115 The GAO has criticized the use of ‘‘self-serving’’ defensive medicine surveys—such as the one highlighted by the majority 

in its briefing memo—citing to low response rates and unscientific 

questioning, and concluding that ‘‘so-called defensive medicine may 

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116 U.S. GENERAL ACCOUNTING OFFICE, Analysis of Medical Malpractice: Implications of Rising 

Premiums on Access to Health Care, GAO–03–836 (Aug. 29, 2003). 117 Atul Gawande, The Cost Conundrum: What a Texas Town Can Teach Us About Health 

Care, NEW YORKER, June 1, 2009. 118David Katz, Physicians Still Fear Malpractice Lawsuits, Despite Tort Reforms, HEALTH AF- FAIRS, Sept. 2010, Vol. 29, Issue 9 available at http://content.healthaffairs.org/content/29/9.toc. 119Medical Liability Reform—Cutting Costs, Spurring Investment, Creating Jobs, Hearing Before the H. Comm. on the Judiciary, 112th Cong., Jan. 20, 2011 (unofficial transcript) (testimony 

of Dr. Ardis Hoven, Chair, Board of Trustees of the American Medical Association). 

erates for physicians or by positive (albeit small) benefits to patients.’’ 116

A June 1, 2009, article in New Yorker magazine framed the issue 

in more direct terms. Why had the cost of health care risen so high 

in McAllen, Texas? 

‘‘It’s malpractice,’’ a family physician who had practiced 

here for 33 years said. ‘‘McAllen is legal hell,’’ the cardiologist agreed. Doctors order unnecessary tests just to protect 

themselves, he said. Everyone thought the lawyers here 

were worse than elsewhere. 

That explanation puzzled me. Several years ago, Texas 

passed a tough malpractice law that capped pain-and-suffering awards at $250,000. Didn’t lawsuits go down? ‘‘Practically to zero,’’ the cardiologist admitted. 

‘‘Come on,’’ the general surgeon finally said. ‘‘We all know 

these arguments are bullshit. There is overutilization here, 

pure and simple.’’ Doctors, he said, were racking up 

charges with extra tests, services, and procedures.’’ 117

Additional studies have shown that doctors’ fear of lawsuits is ‘‘out 

of proportion to the risk of being sued,’’ that damage caps have little impact on these perceptions, and that many doctors will, 

wittingly or unwittingly, ‘‘exaggerate their concern about being 

sued, using it as a justification for high-spending behavior that is 

rewarded by fee-for-service payment systems.’’ 118

That type of overstatement was evident in the Committee’s January hearing on medical liability reform, where one Republican witness testified that ‘‘the cost of the practice of defensive medicine [is 

estimated] to be between $70 billion and $126 billion per year.’’ 119

When pressed by Rep. Scott, however, Dr. Hoven had difficulty justifying her claim: 

Mr. SCOTT. And are you suggesting that $70 billion to $126 billion worth of cases, services were rendered that 

were not medically necessary, were not needed? 

Dr. HOVEN. That is not what I said, Congressman. 

Mr. SCOTT. Well, what are you saying? 

Dr. HOVEN. I am saying that health care delivered in the 

examining room, in the operating room, is driven by what 

is based on clinical judgment and based on assurance testing, which is documentation and proving that, in fact, that 

is what is wrong with a patient. 

When we talk about cost control in this country, we are 

talking about the fact that—and this goes to the whole 

issue of cost containment, which is, if, in fact, you would 

recognize my medical judgment and allow me to decide 

when it is important to do a test or not, then our patients 

would be better served. 


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120 Id. 121 U.S. CONGRESSIONAL BUDGET OFFICE, Analysis of the Effects of Proposals to Limit Costs 

Related to Medical Malpractice (‘‘Tort Reform’’), Letter to the Hon. Orrin G. Hatch, Oct. 9, 2009, 

available at http://www.cbo.gov/doc.cfm?index=10641 [hereinafter CBO Letter]. 122 NAIC, Countrywide Summary of Medical Malpractice Insurance, Calendar Years 1991– 

2008 (Sept. 1, 2009). 123Scoring Health Care Reform: CBO’S Budget Options: Hearing Before the S. Comm. on Fi- nance, 111th Cong. 39 (2009) (statement of Douglas Elmendorf, Director, Congressional Budget 

Office). 124 Id. 125 Id. 126 Id. 

Mr. SCOTT. By not providing the services? 

Dr. HOVEN. If, in my judgment, they don’t need it. 

Mr. SCOTT. And you are not able to—and you charge for 

services that, in your judgment, are not needed to the tune 

of $70 billion to $126 billion? 

Dr. HOVEN. I do not do that.120

Supporters of H.R. 5 can speak about defensive medicine in the abstract, but their expert on the phenomenon was unwilling or unable to discuss specifics. 

A nonpartisan analysis confirms that the changes proposed by 

H.R. 5 will have a negligible impact on the behavior of physicians. 

The CBO has found not found significant evidence that ‘‘defensive 

medicine’’ exists as a pervasive problem, and projects a scant 0.3 

percent savings ‘‘from slightly less utilization of health care services’’ if H.R. 5 were to be enacted.121 Once again, supporters of 

H.R. 5 point to a crisis that does not exist, and propose legislation 

that would not solve the problem the problem if it did. 

F. H.R. 5 will not have a significant impact on the cost of health 

care or on federal spending. 

Although supporters of H.R. 5 argue that limits on medical malpractice liability will help lower the cost of health care, they have 

targeted a minuscule segment of annual health care spending. According to the National Association of Insurance Commissioners, 

medical malpractice premiums totaled approximately $11.2 billion 

in 2008.122 The overall cost of health care that year totaled $2.6 

trillion.123 In practice, H.R. 5 purports to impact health care spending by taking aim at 0.004 percent of the annual health care budget. 

Proponents of H.R. 5 also mention the possibility of federal budget savings, citing to a 2009 CBO study that concludes a proposal 

like H.R. 5 would result in a $54 billion in budget savings over ten 

years.124 Their use of this study is troubling for several reasons. 

First, it is ironic that the same House Republicans who casually 

dismissed $230 billion in savings identified by the CBO in the Affordable Care Act now apply such importance to asserted savings 

from H.R. 5. Second, $13 billion of the savings identified by the 

CBO has nothing to do with federal spending; rather, it results 

from the increased taxes health professionals will pay if H.R. 5 is 

enacted.125 Third, at least one provision of H.R. 5 is projected to 

increase costs. The CBO concluded that ‘‘reform of joint-and-several 

liability rules . . . is likely to increase the financial liability of the 

providers assigned the greatest share of responsibility in malpractice cases—typically physicians.’’ 126 Fourth, ‘‘because many 

states have already implemented some of the changes in the packVerDate Mar 15 2010 06:52 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00103 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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127 Id. 128 Id. 129 CBO Letter, supra note 123. 130 Based on 2,436,264 annual deaths, according to the Center for Disease Control and Prevention. CENTERS FOR DISEASE CONTROL, supra note 67. 131Markup of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) 

Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 9, 2011 (statement of Rep. 

Lamar Smith, Chairman, House Comm. on the Judiciary). 132 ‘‘I got problems with that. I think it’s a violation of the Tenth Amendment, and I don’t 

believe the Federal Government has any more authority to regulate health care under the Commerce Clause than it does to regulate liability caps in states under the Commerce Clause.’’ Id. 

(statement of Rep. Ted Poe, Member, House Comm. on the Judiciary). 133 ‘‘I want to reassure the gentleman from Georgia and the gentleman from North Carolina, 

and particularly two gentlemen from Texas on my side, that we are actively working on an 

amendment for the House floor that would empower States to have control over what aspect 

of this law would apply to the States or whether the law would apply to those States at all.’’ 

Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely Healthcare 

(HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 2011 (statement of Rep. Lamar Smith, Chairman, House Comm. on the Judiciary). 

age, a significant fraction of the potential cost savings has already 

been realized.’’ 127

Finally, supporters of H.R. 5 miss the narrow scope of the CBO 

analysis. The CBO letter is solely an analysis of the immediate effects of this legislation on the federal budget. It does not account 

for the full social and financial cost of enacting H.R. 5. The CBO 

admits as much: ‘‘There is less evidence about the effects of tort reform on people’s health, however, than about the effects of on 

health care spending—because many studies of malpractice costs 

do not examine health outcomes.’’ 128

In the long term, victims of malpractice who are injured but denied full restitution require additional support from Medicare, 

Medicaid, and other government programs. Moreover, the CBO letter acknowledges that, if the changes contemplated in H.R. 5 are 

enacted, the U.S. morality rate will increase by as much as 

0.2%.129 That constitutes an additional 4,853 Americans killed 

every year, or 48,250 Americans over the 10-year period CBO examines.130 In our judgment, that is too high a price to pay for this 

legislation. H.R. 5 leaves the families of these patients without full 

recourse, and leans on the Federal Government to make up much 

of the difference. 

IV. STATES’ RIGHTS AND FEDERALISM CONCERNS

The majority has sent decidedly mixed messages with respect to 

states’ rights. In the markup of the bill, supporters of H.R. 5 argued that ‘‘bringing a medical liability lawsuit is an activity that 

substantially affects interstate commerce. There is no federalism 

concern with this legislation.’’ 131 This claim did not sit well with 

many members of the majority.132 Later, proponents appeared to 

concede at least the existence of a states’ rights problem, promising 

to work on an amendment for introduction on the House floor.133

No such amendment has been shared with Democratic members of 

the committee, and the majority voted down several amendments 

that would have addressed this issue directly. 

Simply put, H.R. 5 is a direct attack on states’ rights. It preempts the law in all 50 states, and its so-called ‘‘state flexibility’’ 

provision does almost nothing to mitigate serious federalism concerns. 


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134See Michael I. Krauss & Robert A. Levy, supra note 7. 135Medical malpractice cases filed in federal court are based on diversity jurisdiction; e.g., 

where the parties reside in different states. 136 NCSL Policy, supra note 8. 137 Id. 138 Id. 139 Colo. Rev. Stat. § 12–64–302; Fla. Stat. §§ 766.118 and 768.73; 735 Ill. Comp. Stat. § 5/2– 

1115; Md. Code, Cts. & Jud. Proc § 3–2A–09; Mich. Comp. Laws § 600.1483; Tex. Civ. Proc. & 

Rem. Code § 74.301; W. Va. Code § 55.7B.8. 140See, e.g., Ariz. Const., Art. 2, sec. 31. ‘‘No law shall be enacted in this state limiting the 

amount of damages to be recovered for causing the death or injury of any person.’’ Id. See also 

Ark. Const. Art.5, sec. 32; Ky. Const. Sec. 54; Penn. Const., Art III, sec. 18. 141 HEALTH Act, 112th Cong. § 9(7). 

A. The states set the rules for their own court systems, and federalism permits diverse systems to coexist. 

Historically, the states have been allowed to set their own rules 

for their own court systems. The two litigants in a medical malpractice case are usually an in-state plaintiff and an in-state physician.134 Except in limited circumstances, malpractice cases can 

only be filed in state court.135 Even when malpractice cases can be 

filed in federal court, those courts apply state malpractice law. 

All 50 states have considered some changes to their tort systems, 

and different states have adopted different approaches to the issue 

of medical malpractice liability. The National Conference of State 

Legislatures (NCSL), a bipartisan organization representing the 

elected legislators and professional staffs of all 50 state legislatures, maintains that ‘‘American federalism contemplates diversity 

among the states in establishing these rules.’’ 136

All 50 states have statutes of limitations in place with respect to 

negligence cases.137 All 50 states have rules of evidence to provide 

for the full and fair adjudication of lawsuits.138 Some states—Colorado, Florida, Illinois, Maryland, Michigan, Texas, and West Virginia, among others—have already enacted medical malpractice 

damage caps of their own.139 Other states—including Arizona, Connecticut, Iowa, Kentucky, New York, Oregon, Tennessee, and Wyoming—have expressly chosen not to limit medical malpractice damages, in some instances by amendment to the state constitution or 

popular referendum.140 Federalism allows each state to choose the 

rules for medical malpractice cases that best fit the particular 

needs of its citizens, and permits diverse systems to flourish and 

to coexist. 

B. H.R. 5 preempts state law in all 50 states. 

H.R. 5 overturns this entire federalist approach to medical malpractice liability reform to impose a uniform set of rules on the 

states. No state is immune. No state has adopted the bill’s precise 

regime of $250,000 caps on noneconomic damages, $250,000 caps 

on punitive damages, elimination of joint-and-several liability, and 

a 3-year limited statute of limitations. Moreover, no state has attempted to capture every action against ‘‘a health care provider, a 

health care organization, or the manufacturer, distributor, supplier, 

marketer, promoter, or seller of a medical product, regardless of 

the theory of liability on which the claim is based,’’ 141 in a law to 

reform ‘‘medical malpractice’’ liability. 

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142Letter from Nevada Assemblyman William Horne, Chair, NCSL, and Texas Rep. Jerry 

Madden, Immediate Past Chair, NCSL, to Rep. Lamar Smith and Rep. John Conyers, Feb. 16, 

2011. 143 Id. 144 HEALTH Act, 112th Cong. § 11(a). 145 Id. § 11(b)(2). 146 Id. § 7(c)(4). 147 Id. 148 Id. § 11(c). 149 Ariz. Const., Art. 2, sec. 31. 150 Conn. Gen. Stat. §§ 51–251c and 52–584.2. 151 Cal. Civ. Code § 3333.2. 

clusion’’ that ‘‘federal medical malpractice legislation is unnecessary.’’ 142 In a letter to the Chairman and Ranking Member of the 

Judiciary Committee, NCSL argues further that its opposition to 

H.R. 5 ‘‘will extend to any bill or amendment that directly or indirectly preempts any state law governing the awarding of damages 

by mandatory, uniform amounts or the awarding of attorney’s 

fees.’’ 143

With two limited exceptions, H.R. 5 explicitly preempts the 

states in every area of law it reaches—statutes of limitation, attorneys’ fees, rules of evidence, suits against pharmaceutical and device manufacturers, and caps on punitive damages.144

The first exception exists solely to further disadvantage victims 

of medical malpractice. H.R. 5 does not preempt any law ‘‘that imposes greater procedural or substantive protections for healthcare 

providers and healthcare organizations.’’ 145 In effect, any state law 

that goes further than H.R. 5 to favor defendants—e.g., a law that 

provides for shorter statutes of limitation, imposes lower caps on 

punitive damages, or removes consumer protections in instances of 

fraud 146 or bribery 147—stays on the books. 

The second exception to general preemption—the ‘‘State Flexibility’’ provision—is, at best, misnamed. Any state law that ‘‘specifies a particular monetary amount of compensatory or punitive 

damages’’ avoids preemption by the $250,000 cap on noneconomic 

damages imposed by H.R. 5.148 This provision allows existing monetary caps on medical liability damages to stand. But it also forces 

states without the full range of damage caps contemplated by H.R. 

5 to adopt a specific scheme. For example: 

Arizona. The Arizona state constitution explicitly prohibits 

any statutory limit on the amount of damages recoverable 

by a plaintiff in a medical malpractice suit.149 H.R. 5 

would preempt the state constitution and force Arizona to 

adopt a $250,000 cap on noneconomic damages in all 

health care lawsuits. H.R. 5 also preempts similar provisions in the state constitutions of Arkansas, Kentucky, and 

Pennsylvania. 

Connecticut. Connecticut imposes several procedural requirements on medical malpractice litigants, but does not 

include caps on damages.150 H.R. 5 would preempt state 

law and force Connecticut to adopt a $250,000 cap on noneconomic damages in all health care lawsuits. 

California. California caps only noneconomic damages for 

medical malpractice claims involving licensed medical professionals.151 Under H.R. 5, it would be forced to cap damVerDate Mar 15 2010 06:52 Mar 19, 2011 Jkt 099006 PO 00000 Frm 00106 Fmt 6659 Sfmt 6601 E:\HR\OC\HR039P1.XXX HR039P1

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152 Ind. Code § 34–18–4–3. 153Tex. Civ. Proc. & Rem. Code § 74.301. 154 Id. § 2(a)(2). 155 Id. 156See, e.g., Rep. Lamar Smith, Updated Health Care Frequently Asked Questions (FAQ) available at http://lamarsmith.house.gov/Issues/Issue/?IssueID=13970 (‘‘I co-sponsored legislation that 

increases funding for state-based programs providing health insurance to individuals unable to 

obtain affordable insurance from private insurers. This bill passed by Congress is a massive 

overreach of government control.’’). 157 ‘‘I think that [the Affordable Care Act] expanded the Commerce Clause beyond the intentions of the Founding Fathers and the concepts that we basically hold today. . . . [I]f 

Obamacare is upheld as constitutional . . . then what could be constrained by the Commerce 

Clause?’’ The Constitutionality of the Patient Individual Mandate: Hearing Before the H. Comm. 

on the Judiciary, 112th Cong. (Feb. 16, 2011) (statement of Rep. Steve King, member, H. Comm. 

on the Judiciary). 158 Id. (statement of Rep. Lamar Smith, chairman, H. Comm. on the Judiciary). 

ages on cases involving nursing homes, pharmaceutical 

companies, and the insurance industry. 

Indiana. Indiana caps total compensatory damages at 

$1,250,000 overall and $250,000 per health care provider, 

with no limit for wrongful death claims.152 Under H.R. 5, 

it would be force to cap damages in wrongful death suits, 

as well as in cases involving nursing homes, pharmaceutical manufacturers, and insurance companies. 

Texas. Texas caps noneconomic damages in cases involving 

medical professionals and health care institutions, but not 

in cases involving the drug and device industry.153 Under 

H.R. 5, it would be forced adopt a $250,000 cap in such 

cases. 

In sum, no state will go unaffected by the H.R. 5. The ‘‘state flexibility’’ provision provides for very little actual flexibility. 

C. The majority sends mixed messages on states’ rights and H.R. 5. 

The Federal Government has an important role to play in controlling the costs of health care. Supporters of H.R. 5 invoke a 

broad ‘‘effect on interstate commerce’’ as constitutional justification 

for the bill.154 Specifically, they find that ‘‘the health care insurance industries affecting interstate commerce and the health care 

liability litigation systems existing throughout the United States 

are activities that affect interstate commerce by contributing to the 

high costs of health care.’’ 155 Because the health care and insurance industries have a massive impact on the national economy, 

Congress has the authority and reason to act where the individual 

states are unable to address the issue separately. 

For the past two years, supporters of H.R. 5 have argued precisely the opposite with respect to the Affordable Care Act.156

In fact, the majority has argued both sides of the states’ rights 

question on the same day. On the morning of February 16, in a full 

committee hearing on ‘‘The Constitutionality of the Patient Individual Mandate,’’ Republican members described the Affordable 

Care Act as a massive overreach of the Federal Government and 

a clear violation of the Tenth Amendment.157 Chairman Smith argued further that ‘‘if the individual mandate is upheld’’ by the Supreme Court, ‘‘it would be the end of federalism.158 Later that 

afternoon, in the continued markup of H.R. 5, Republican members 

of the committee voted twice—by party line both times—to reject 


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159 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011. Amendments introduced by Rep. Hank Johnson would have struck preemption language 

in H.R. 5 and permitted existing state medical malpractice liability laws (or, in the alternative, 

relevant provisions of state constitutions) to remain in effect. At least two members of the majority were ‘‘noticeably absent from the room’’ when these amendments were rejected. Brett 

Coughlin, House Judiciary Approves Tort Reform, POLITICO, Feb. 16, 2011 available at http:// 

www.politico.com/news/stories/0211/49703.html. 160 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011 (statement of Rep. Maxine Waters, member, H. Comm. on the Judiciary). 161 Id. (statement of Rep. Trent Franks, member, H. Comm. on the Judiciary). 162 Comparing the Affordable Care Act to H.R. 5, Rep. Ted Poe remarked: ‘‘to be consistent, 

they’re both not covered under the Interstate Commerce [Clause]. I don’t think the Constitution 

gives the Federal government any authority in either one of those areas.’’ Markup of H.R. 5, 

The Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 9, 2011 (statement of Rep. Ted Poe, member, H. 

Comm. on the Judiciary). 163 Id. (statement of Rep. Lamar Smith, Chairman, H. Comm. on the Judiciary). 

amendments to the bill that would have allowed existing state laws 

to stand.159

The majority’s position on states’ rights took an even stranger 

turn when the committee considered an amendment to ‘‘repair certain provisions in the McCarran-Ferguson Act which currently exempt medical malpractice insurers from Federal antitrust laws.’’ 160

In opposition to the amendment, the majority argued: 

Under our current system, Mr. Chairman, State regulation 

of health insurance, State regulators have authority to 

prevent rates that are excessive, inadequate, or unfairly 

discriminatory. . . . By letting Department of Justice and 

FTC second guess State insurance regulator’s competition 

policies, this amendment would disrupt subtle law in nearly every State in the Union.161

The majority opposed this amendment because it would have preempted state law. To summarize: the majority was in favor of 

states’ rights in the morning and opposed to states’ rights in the 

afternoon—except while debating this amendment, when they favored states’ rights again. 

To their credit, some members of the majority have made public 

comments pointing out this inconsistency.162 Others are content to 

repeat the fiction that H.R. 5 ‘‘specifically exempts state laws and 

does not change what states have already adopted.’’ 163

V. SPECIFIC CONCERNS WITH THE LEGISLATION

H.R. 5 imposes new restrictions on medical malpractice cases. It 

applies these restrictions across the board—no matter how much 

merit a case may have, regardless of the negligence at issue or the 

severity of the injury. Individually and collectively, the provisions 

of H.R. 5 are unjust and unfair. The following are just a few of the 

most pressing problems with the bill. 

A. The $250,000 cap on noneconomic damages is unfair and discriminatory (Section 4(b)). 

The $250,000 cap on noneconomic damages is manifestly unfair. 

It discriminates against women, children, and other vulnerable 

members of society and does account for the effects of inflation. The 

bill’s sweeping definition of ‘‘health care lawsuit’’ gives the cap a 

particularly insidious reach. 


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164 A survey by the RAND Corporation found that the ‘‘most significant impact’’ of California’s $250,000 cap ‘‘falls on patients and families who are severely injured or killed as a result of 

medical negligence or mistakes.’’ ConsumerWatchDog.com, RAND Study: California Patients 

Killed or Maimed by Malpractice Lose Most Under Damage Caps, http://www. 

consumerwatchdog.org/newsrelease/rand-study-california-patients-killed-or-maimed-malpracticelose-most-under-damage-caps (last visited Mar. 1, 2011). 165Democratic Forum on Malpractice, Feb. 11, 2003, Transcript at 60. 166 Id. at 62. 167 Id. 168See Thomas Koenig & Michael Rustad, His and Her Tort Reform: Gender Injustice in Disguise, 70 WASH. L. REV. 1 (1995). 169 Id. at 84. 170 Id. 

H.R. 5 imposes an arbitrarily low cap on noneconomic damages 

in every case, regardless of the negligence or the extent of injury 

involved. This one-size-fits-all approach objectifies patients and 

gives the courts little room to restore any loss that does not come 

with a price tag. The cap does nothing but stop the most severely 

injured patients from receiving adequate compensation.164 It is patently unfair. 

Some malpractice cases clearly call for damages that exceed 

$250,000. At a forum hosted by Democratic members in 2003, 

Kathy Olsen described her son’s injuries.165 When Steve Olsen was 

2 years old, he fell on a stick in the woods. His infection was severe 

enough that the Olsens asked for a CAT scan, but Steve’s doctor 

administered a steroid injection and sent him home without further 

treatment. The next day, Steve returned to the hospital in a coma, 

permanently blind and brain damaged from a growing brain abscess. At trial, a jury concluded that the doctor had committed malpractice. Given the magnitude of the injury—Steve had no lost 

wages, but he would never play sports, work, or enjoy normal relationships with his peers—the jury awarded the Olsens $7.1 million 

in ‘‘noneconomic’’ damages. Because the case was subject to California’s medical malpractice cap, the judge was forced to reduce the 

award to $250,000. 

Mrs. Olsen testified: ‘‘California’s malpractice law has failed innocent patients, consumers, and taxpayers. Under this law people 

are victimized twice, once by the wrongdoer and again by the laws 

that deny them the right to hold the wrongdoer accountable.’’ 166 As 

to the cap on damages, Mrs. Olsen observed that the ‘‘law is regressive by hurting the most seriously injured victims, those who are 

permanently and catastrophically injured by medical negligence. . . . In California, and now proposed nationwide, no matter how old you are or how disabled you become or how catastrophic your injuries are, there is a one size fits all limit on your 

pain and suffering.’’ 167

The $250,000 cap is a particular burden on women, children, seniors, and the poor. Proportionally, these patients have more trouble 

demonstrating lost wages and other economic losses. Studies of 

medical malpractice cases show that women recover economic damages in lower amounts because they receive lower overall wages.168

Women are three times more likely than men to receive noneconomic damages.169 Women are far more likely to suffer severe 

noneconomic loss (e.g., loss of fertility or disfigurement) or to be a 

victim of the type of conduct that leads to punitive damages (e.g., 

sexual assault, fraud, false imprisonment, and extreme violation of 

medical standards).170 With the cap on noneconomic damages in 


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171Democratic Forum on Malpractice, February 11, 2003, Transcript at 48. 172 Id. at 50–51. 173 Emily Ramshaw, State’s Tort Reform Makes Lawyers Wary of Taking on Patients, N.Y. 

TIMES, Dec. 19, 2010, at A39. 174 Id. 175See U.S. CONGRESSIONAL RESEARCH SERVICE, MEDICAL MALPRACTICE LIABILITY REFORM: 

LEGAL ISSUES AND FIFTY-STATE SURVEY OF CAPS ON PUNITIVE DAMAGES AND NONECONOMIC

DAMAGES, RL31692 (Jan. 18, 2006). 

place, a woman without a salary is limited to $250,000 to compensate for these injuries. 

These effects are more than theoretical. After undergoing a double mastectomy, Linda McDougal was told that she had never had 

breast cancer—a pathologist had mixed up her charts with those 

of another patient.171 Although she recovered $8,000 in lost wages 

and $48,000 in medical bills, her actual losses were profound: 

My scars are not only physical, but emotional as well. . . . 

My disfigurement from medical negligence is almost entirely noneconomic. . . . I could never have predicted or 

imagined in my worst nightmare that I would end up having both of my breasts removed needlessly because of a 

medical error. No one plans on being a victim of medical 

malpractice, but it happened.172

The cap on non-economic damages puts a price tag on the worst 

types of physical and psychological trauma. Under H.R. 5, Mrs. 

McDougal would be entitled to $250,000 for her permanent disfigurement, nothing more. 

On May 29, 2010, Connie Spears went to a San Antonio hospital 

reporting excruciating leg pain. Mrs. Spears had experienced blood 

clots before, so frequently and some so severe that doctors had installed a filter in one of her heart’s main veins. In the San Antonio 

emergency room, however, the doctor on call diagnosed Mrs. Spears 

with ‘‘bilateral leg pain’’ and told her to follow up with her primary 

care physician. Three days later, in immense pain and with her 

legs a burgundy color, Spears called 911 and was transported by 

ambulance to a different hospital. This time, doctors determined 

that the 54 year old’s vein filter was severely clotted and had led 

to tissue death in her legs and kidney failure. When Mrs. Spears 

regained consciousness weeks later, she learned that doctors had 

amputated both of her legs to save her life.173 ‘‘ ‘Do you know what 

it’s like not to have any legs?’ Mrs. Spears asked tearfully, trembling as she lifted her dress to reveal the thick pink scars stretched 

like pillow seams across her thighs. ‘It’s ruined all of our lives.’ ’’ 174

Under H.R. 5, Mrs. Spears would be limited to $250,000 as compensation for the trauma of losing her legs. 

The $250,000 cap in H.R. 5 is pegged to the amount adopted by 

California in 1975, at a time when noneconomic damages rarely exceeded $250,000. More than 30 years later, inflation has taken its 

toll.175 Translated into 2011 dollars, the $250,000 cap imposed in 

1975 is worth about $61,000 today. If adjusted to reflect inflation 

in medical care value, the cap would be worth almost $2 million 

today. The majority voted down two amendments offered by Rep. 

Jerrold Nadler that would have corrected this error—one that 

would have raised the cap to $1,977,500 and ensure that the 

amount is adjusted annually for inflation, and one that would have 


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176 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011. 177 HEALTH Act, 112th Cong. § 9(7). 

simply adjusted the $250,000 cap for inflation in future years.176

Although any arbitrary cap is unfair, these amendments would 

have at least mitigated the damage. 

Many states have adopted some form of cap on medical malpractice damages, but no state has capped damages in all ‘‘health 

care lawsuits,’’ as H.R. 5 defines the term. H.R. 5 reaches all suits 

‘‘concerning the provision of health care goods or services or any 

medical product affecting interstate commerce, or any health care 

liability action concerning the provision of health care goods or 

services or any medical product affecting interstate commerce.’’ 177

The bill is an unprecedented experiment in limiting the rights of 

patients as they face insurance companies, HMOs, pharmaceutical 

and device manufacturers, and other entities that have nothing to 

do with traditional medical malpractice. 


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178 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011 (statement of Rep. Debbie Wasserman Schultz, member, H. Comm. on the Judiciary). 179 Id. (statement of Rep. Trent Franks, member, H. Comm. on the Judiciary). 180 HEALTH Act, 112th Cong. § 9(6). 181 American Ass’n for Justice, The Real Victims of H.R. 5 (Feb. 2011). 

Because of the uncertain interaction between the bill’s definition 

of ‘‘economic damages’’ and existing state law, caps on noneconomic 

damages have a particularly harmful effect on children. In markup, 

Rep. Debbie Wasserman Schultz offered an amendment to exempt 

minors from the $250,000 cap on noneconomic damages. She reasoned: ‘‘the basis of the amendment is just common sense. Children 

don’t work. Like women and the elderly who tend to be in lower 

wage jobs, children are even more disproportionately impacted by 

these noneconomic damage.’’ 178 In response, supporters of H.R. 5 

argued that ‘‘the reality is that the economic damages accrue to the 

parents, and the parents certainly have the right to sue on behalf 

of economic damages in a limitless capacity.’’ 179 Although the majority was unable to name a single malpractice case in which parents recovered economic damages on behalf of an injured child, 

they defeated the amendment along party lines. 

H.R. 5 defines ‘‘economic damages’’ as ‘‘objectively verifiable monetary losses . . . such as past and future medical expense, loss of 

past and future earnings, cost of obtaining domestic services, loss 

of employment, and loss of business or employment opportunities.’’ 180 On its face, this provision appears to be of limited use to 

children, who do not work, and the elderly, who may not have significant future earnings. If the majority intended for children’s future lost wages to count as ‘‘economic damages,’’ they could have 

voted for an amendment proposed by Rep. Robert Scott that would 

have clarified the bill. Instead, they voted down the proposal—leaving patients to sort out the meaning of the term ‘‘economic damages’’ case by case, and state by state. 

The rejection of these amendments has real consequences. In 

2008, 17-year-old Olivia Cull was in the process of finishing her 

senior year at the Archer School for Girls, where she was an accomplished scholar, actress, and musician. She had been accepted 

early into Smith College and planned to major in Classical Studies 

and Ancient Arts and Languages. That year, Olivia underwent a 

routine cardiac catheterization to assess a congenital heart condition. The procedure was without incident, but later, while Olivia 

was still under general anesthesia, a cardiology fellow-in-training 

pulled the catheter lines and caused Olivia’s heart rate, pulse, and 

blood pressure to drop rapidly. Basic cardiopulmonary resuscitation 

was not started for more than ten minutes. Olivia suffered severe 

and extensive brain damage, never regained consciousness, and 

died on January 20, 2009.181 It is difficult to put a price tag on the 

loss caused to Olivia’s parents, but it cannot be measured by ‘‘objectively verifiable monetary losses’’ and should not be capped at 

$250,000. 


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182See, e.g., Michael L. Rustad & Thomas H. Koenig, Taming the Tort Monster: The American 

Civil Justice System As A Battleground of Social Theory, 68 BROOK L. REV. 1 (Fall 2002); Matthew W. Light, Who’s the Boss?: Statutory Damage Caps, Courts, and State Constitutional Law, 

58 Wash. & Lee L. Rev. 315 (Winter, 2001). 183 RESTATEMENT (THIRD) OF TORTS § 23 (1999). 184 HEALTH Act, 112th Cong. § 4(d). 185 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011 (statement of Rep. Robert Scott, member, H. Comm. on the Judiciary). 186 Id. 187 CBO Letter, supra note 123. 

B. The abolition of joint and several liability creates an unfair 

standard for the patient (Section 4(d)). 

Joint and several liability has been part of American common 

law for centuries.182 The doctrine provides that all tortfeasors who 

are responsible for an injury are ‘‘jointly and severally’’ liable for 

the claimant’s damages. A patient can sue all responsible defendants and recover from each one in proportion to degree of fault, or 

sue any one defendant and recover the total amount of damages. 

A defendant who pays more than his or her share is then entitled, 

under the doctrine of contribution, to seek compensation from other 

responsible parties based on their degree of fault.183 Joint and several liability is designed to ensure that patients of wrongful conduct are able to fully recover damages for their injuries, especially 

when one or more of the defendants is insolvent. 

H.R. 5 replaces this doctrine with its so-called ‘‘Fair Share’’ rule, 

which provides: ‘‘each party shall be liable for that party’s share of 

any damages only and not for the share of any other person. . . . 

A separate judgment shall be rendered against each party for the 

amount allocated to such party.’’ 184 In practice, H.R. 5 would require a patient to demonstrate each defendant’s proportional responsibility for an injury. 

This burden is unfair. Plaintiffs would be required to bring a separate case against each defendant, ‘‘each requiring a finding of 

duty of care, a breach of that duty, proximate cause, finding damages, and a determination of what part of total damages are attributed to which malpractice. Each case requires an expert witness, 

depositions, and the full expense of complicated litigation.’’ 185 The 

rule is also unnecessary. As Rep. Scott argued in markup: ‘‘Health 

care providers already can agree, in advance, how to apportion responsibility and they provide insurance and all pay premiums and 

set fees for services accordingly.’’ 186 Although H.R. 5 is based on 

California’s medical malpractice law, not even California eliminates 

joint and several liability for economic damages. The CBO notes 

that this particular proposal will actually increase the overall cost 

of health care.187

Rather than engage in debate on the facts, supporters of H.R. 5 

turned to a tired anecdote to support this provision: 

Say a drug dealer staggers into an emergency room with 

a gunshot wound after a deal dealing drugs goes bad. The 

surgeon works on him, does the best he possibly can, but 

it is not perfect, and drug dealer sues him. The jury finds 

the drug dealer 99 percent responsible for his own injuries. 

But it also finds the hospital 1 percent responsible because 

the physician was fatigued after working too long. But 


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188 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011 (statement of Rep. Trent Franks, member, H. Comm. on the Judiciary). 189See, e.g., Markup of Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act 

of 2002, 107th Cong. (statement of Rep. Bachus, member, H. Comm. on the Judiciary). 190See, e.g., Board of County Comm’r of Garret County v. Bell Atlantic, 695 A.2d 171 (Md. 

1997) (outlining a standard of pure contributory negligence in Maryland); Liv v. Yellow Cab, 119 

Cal. Rptr. 858 (1975) (outlining a standard of pure comparative fault in California); O.C.G.A. 

§ 51–11–7 (codifying a 50 percent bar rule in Georgia); and Tex. Civ. Prac. & Rem. Code 

§§ 33.001–33.017 (codifying a 51 percent bar rule in Texas). 191 HEALTH Act, 112th Cong. § 7(a). 192Markup of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) 

Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 9, 2011. 193 Id. (statement of Trent Franks, member, H. Comm. on the Judiciary). 

today, the hospital can be made to pay 100 percent of the 

damages because the drug dealer is without means.188

First, this story is borrowed from past debates. It has been used 

by the majority to defend this proposal nearly every time H.R. 5 

has been considered by the committee.189 Second, its premise is 

factually incorrect. All 50 states have adopted some form of contributory negligence or comparative negligence standard that bars 

plaintiffs from recovering for damages for which they are substantially responsible.190 Even if the ‘‘drug dealer’’ could somehow bring 

a colorable malpractice claim against the ‘‘hospital,’’ he would not 

be entitled to recover damages if he were ‘‘99 percent’’ at fault. 

Third, it goes to show how little consideration has been given to 

the effect of preempting state law in all 50 states. Supporters of 

H.R. 5 appear to be unaware of how state law applies in instances 

of joint and several liability, let alone prepared for the unintended 

consequences of wiping out centuries of jurisprudence in the United 

States. 

C. Punitive damages caps protect the most egregious instances of 

malpractice (Sections 7(a) and 7(b)). 

The bill’s limits on punitive damages are problematic for two reasons. First, the heightened standard is practically impossible for 

patients to prove. Second, the $250,000 cap is fundamentally inadequate in cases extreme enough to warrant punitive damages. 

Under H.R. 5, punitive damages are only available if a plaintiff 

can prove by ‘‘clear and convincing evidence’’ that a defendant 

‘‘acted with malicious intent to injure the claimant’’ or ‘‘deliberately 

failed to avoid unnecessary injury’’ that he or she was ‘‘substantially certain’’ the patient would suffer.191 Because proving state of 

mind in this manner is virtually impossible, perpetrators of the 

most extreme forms of malpractice will now go unpunished. 

In markup, Ranking Member Conyers offered an amendment 

that would have exempted claims based on intentional tort liability 

from this new standard.192 The majority argued that the amendment was ‘‘redundant’’ because criminal activity is already exempted from the bill,193 and voted it down on party lines. There are 

many differences between intentional tort claims and criminal 

charges—they are brought in entirely separate court systems, with 

separate rules of procedure and separate burdens of proof—but 

H.R. 5 does not reflect this fact. 

Rep. Ted Deutch offered a narrower amendment to exempt certain intentional torts (e.g., assault, batter, rape, conversion, false 

imprisonment, and intentional infliction of emotional distress) from 


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194 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011 (statement of Ted Deutch, member, H. Comm. on the Judiciary). 195 Id. (statement of Trent Franks, member, H. Comm. on the Judiciary). 196 HEALTH Act, 112th Cong. § 9(9) (emphasis added). 197 Id. § 7(b)(2). 198Public Citizen found that ‘‘47.7% of doctors [found to have been disciplined for sexual abuse 

or misconduct by a disciplinary board] were allowed to continue practicing, their behavior probably unknown to most if not all of their patients.’’ SIDNEY WOLFE ET AL., 20,125 QUESTIONABLE

DOCTORS (2000). 199 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011 (statement of Rep. Debbie Wasserman Schultz, member, H. Comm. on the Judiciary). 200 HEALTH Act, 112th Cong. § 7(c)(1)(A)(i). 201See Robert Cohen & J. Scott Orr, Faulty Medical Implants Enter Market Through Flawed 

System, NEWHOUSE NEWS SERVICE, 2002. 

the scope of the bill.194 The majority voted down this amendment 

as well, arguing that these torts have ‘‘nothing to do with medical 

liability.’’ 195 A plain reading of H.R. 5 shows that the bill applies 

to any claim ‘‘against a health care provider, health care organization, or the manufacturer distributor, supplier, marketer, promoter, 

or seller of a medical product . . . regardless of the theory of liability on which the claim is based.’’ 196 An intentional tort claim 

against a health care provider quite clearly falls into this irresponsibly sweeping definition. 

Even if a patient is somehow able to show malicious intent, re- covery of punitive damages is limited at $250,000 or two times the 

amount of economic damages awarded.197 This cap eliminates much of the deterrent effect of punitive damages—$250,000 for 

grossly negligent conduct would merely be the price of doing business for many hospitals, pharmaceutical manufacturers, insurance 

companies, and other wealthy health care providers. Worse, the cap 

applies in the most outrageous instances of medical malpractice, including cases involving drug abuse, alcohol abuse, and sexual assault.198 In markup, Rep. Debbie Wasserman Schultz cited the case 

of Dr. Earl Bradley, a Delaware pediatrician who sexually assaulted 103 children over the course of his medical career.199

Under H.R. 5, the patients in this case—children, some as young 

as three months old, with no economic damages to prove—would be 

entitled seek no more than $250,000 in punitive damages. 

D. Shielding drug and device manufacturers from punitive damages places consumers at grave risk (Section 7(c)). 

H.R. 5 provides blanket immunity from punitive damages to the 

manufacturers of drugs and devices that have been approved by 

the Federal Drug Administration.200 This provision alone would be 

troubling enough. Simply because a product has been approved by 

the FDA does not mean that a company should be immunized from 

punitive liability when that product causes severe harm to a consumer. Medical devices cause approximately 53 deaths and more 

than 1,000 serious injuries every year, with a cost of more than $26 

billion annually.201 Government safety standards, at their best, establish only a minimum level of protection for the public. At their 

worst, they are outdated, under-protective, and under-enforced. 

Moreover, the bill completely insulates manufacturers and distributors of drugs and devices from defects arising during the manufacturing process, which occurs after the FDA has given its approval of the device. This means that a drug company distributing 

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202 HEALTH Act, 112th Cong. § 7(c)(1)(A)(ii). 203 Id. § 7(c)(4). 204 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011. 205 Id. (statement of Rep. Trent Franks, member, H. Comm. on the Judiciary). 206 CnnMoney.com, Fortune 500 ≥ Top Industries: Most Profitable, http://money.cnn.com/ 

magazines/fortune/fortune500/2009/performers/industries/profits/. 207 Id. 208See Herbert M. Kritzer, Lawyer Fees and Lawyer Behavior in Litigation: What does the 

Empirical Literature Really Say?, 80 TEX. L. REV. 1943 (2002); and Herbert M. Kritzer, Economic Policy Litigation Conference Seven Dogged Myths Concerning Contingency Fees, 80 WASH. U. L.Q. 739 (Fall 2002). 209 Id. 210 HEALTH Act, 112th Cong. § 5. 211 Id. 

ner and harms consumers would be insulated from punitive damages, even if the flawed manufacture was intentional or reckless. 

H.R. 5 goes even further, extending this immunity to manufacturers and distributors of drugs and devices that are ‘‘generally recognized among qualified experts as safe and effective,’’ whether or 

not FDA approval has been sought.202 In these cases, so long as a 

defendant can find an expert witness to vouch for its product, federal safety standards are sidestepped altogether. Unless the defendant company has withheld or misrepresented information from 

the FDA or attempted to bribe an FDA official,203 punitive damages are not available, no matter how flagrant the harm. 

Rep. Mike Quigley and Rep. Sheila Jackson Lee offered an 

amendment that would have struck this provision.204 The majority 

opposed the amendment because ‘‘litigation is threatening the viability of the lifesaving drug industry.’’ 205 Drug manufacturers can 

hardly plea poverty. In 2009, the pharmaceutical industry was the 

third most profitable segment of the U.S. economy.206 Medical device and equipment manufacturers came in fourth.207 By rejecting 

this amendment, supporters of H.R. 5 chose to side with these industries rather than with individual patients and consumers. 

E. Limits on contingency fees deny patients access to the justice system (Section 5). 

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.208 Because contingency fee agreements require little or no 

money up front, injured plaintiffs who could not otherwise afford 

legal representation have access to counsel. And 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.209 Lawyers will not incur the risk of taking a contingency fee case with little merit. 

In an unusual position for the traditionally free-market majority, 

supporters of H.R. 5 prefer that state and federal courts to step 

into attorney-client agreements and ‘‘supervise the arrangements 

for payment of damages.’’ 210 The bill requires that all contingency 

fee arrangements adhere to a specific formula: ‘‘(1) Forty percent 

of the first $500,000 recovered by the claimant(s). (2) Thirty-three 

percent and one-third percent of the next $500,000 recovered by 

the claimant(s). (3) Twenty-five percent of the next $500,000 recovered by the claimant(s). (4) Fifteen percent of the next $500,000 recovered by the claimant.’’ 211


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212 Id. 213 Id. § 8(a) (emphasis added). 214 Id. § 3. 215 ‘‘Actions by a minor shall be commenced within 3 years from the date of the alleged manifestation of injury except that actions by a minor under the full age of six years shall be commenced within 3 years of manifestation of injury or prior to the minor’s 8th birthday.’’ Id. 216 Continued Consideration of H.R. 5, The Help Efficient, Accessible, Low-cost, Timely 

Healthcare (HEALTH) Act of 2011 and the Committee’s Oversight Plan, 112th Cong., Feb. 16, 

2011 (statement of Rep. Debbie Wasserman Schultz, member, H. Comm. on the Judiciary). 

This provision purports to limit conflict of interest ‘‘in any health 

care lawsuit in which the attorney for a party claims a financial 

stake in the outcome,’’ 212 but the contingency fees formula will 

have the effect of making it more difficult for poor patients to secure legal representation in medical malpractice cases. Although 

the stated purpose of this bill is curb the costs of lawsuits and 

lower insurance premiums, contingency fees do not change the size 

of a jury award or an insurance company’s obligation to pay damages on behalf of a health care provider. Moreover, the one-sided 

formula does nothing to limit conflicts of interest on the other side 

of the case. Defense counsels are paid by the hour and have direct 

financial incentive to engage in unnecessary litigation and drive up 

costs. The bill’s stated concern about legal ethics notwithstanding, 

this proposal is a naked attempt to prevent plaintiffs from accessing the courts. 

F. Periodic payments shift the risks of bankruptcy to individual patients (Section 8). 

If H.R. 5 passes, courts will no longer have discretion in structuring payment of damages over time. At the request of a defendant found to have committed malpractice, ‘‘the court shall . . . enter a judgment ordering that future damages be paid by periodic 

payments.’’ 213 As with the other defendant-friendly provisions of 

this bill, this requirement harms patients and protects proven bad 

actors. 

Periodic payment plans allow a negligent party to stall while the 

patient assumes the risk. The defendant (or the defendant’s insurance company) can invest and earn interest on 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. There may be instances where a court, 

in its discretion, finds good reason to structure payment of damages over time. H.R. 5 removes that discretion, however, and the 

one-sidedness of this provision is unjustifiable. 

G. A strict statute of limitations denies patients a chance to be 

heard in court (Section 3). 

H.R. 5 requires that a health care lawsuit commence ‘‘3 years 

after the date of manifestation of injury or 1 year after the claimant discovers, or through the use of reasonable diligence should 

have discovered, the injury, whichever occurs first.’’ 214 The bill provides an oddly limited exception for minors under the age of six.215

Rep. Debbie Wasserman Schultz offered an amendment that would 

have clarified this provision and tolled the statute of limitations 

until minors reach adulthood, but the majority voted it down.216

In most cases, this 3-year statute of limitations is, in effect, a 1- 

year statute of limitations in disguise. Because most patients will 

discover an injury only when it manifests itself, the 1-year statute 


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of limitations will begin to run immediately. In other cases, the 3- 

year statute of limitations alone cuts off patients from bringing legitimate claims—particularly in cases that involve diseases with 

long latency periods. For example, a child infected with HIV from 

a tainted blood infusion may manifest symptoms long before a diagnosis is sought. If the child is at least 6 and more than 3 years 

have passed since the symptoms first began to manifest, H.R. 5 

cuts off all legal recourse. These patients deserve their day in 

court. 

CONCLUSION

Collectively, the ‘‘reforms’’ proposed by H.R. 5 would limit a patient’s ability to recover compensation for damages caused by medical negligence, defective products, and irresponsible insurance 

practices. In addition to raising core issues of fairness, H.R. 5 preempts the law in all 50 states, with little regard for the consequences. This legislation was designed more than 20 years ago 

to resolve an insurance ‘‘crisis,’’ but all available evidence shows 

that the insurance market is not in crisis today. H.R. 5 does not 

make insurance more available, does not cut spending to any appreciable degree, and does not address issues of access to justice or 

patient safety. Because H.R. 5 solves few problems facing Americans and exacerbates many real ones, we believe that Congress 

should reject this bill. 

JOHN CONYERS, JR. 

JERROLD NADLER. 

ROBERT C. ‘‘BOBBY’’ SCOTT. 

MELVIN L. WATT. 

SHEILA JACKSON LEE. 

MAXINE WATERS. 

STEVE COHEN. 

HENRY C. ‘‘HANK’’ JOHNSON, JR. 

PEDRO PIERLUISI. 

MIKE QUIGLEY. 

TED DEUTCH. 

DEBBIE WASSERMAN SCHULTZ. 


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1See Section 9, Definitions (7), (8),(9), (10), (11), (12), and (14). 

2See Section 7(a) and (b). 

3See Section 7(c). 

4See Section 4(d). 

Additional Dissenting Views 

1. Introduction 

Proponents of H.R. 5, the Help Efficient, Accessible, Low-cost, 

Timely Healthcare (HEALTH) Act of 2011, claim it is the same as 

California’s Medical Injury Compensation Reform Act (MICRA), a 

law passed in 1975 to limit noneconomic damages in medical malpractice lawsuits. While H.R. 5 may appear similar to the California law, a closer look reveals that H.R. 5 is extreme and unnecessarily limits the rights of patients. Indeed, there are distinct provisions contained in H.R. 5 that differ dramatically from MICRA. 

2. HR 5 is Breathtaking in Scope 

First MICRA does not match H.R. 5 in its breathtaking scope by 

providing protection to not only doctors, but drug and device manufacturers, nursing homes, insurance companies and HMOs. H.R. 5’s 

cap of $250,000 on noneconomic damages applies broadly to all 

‘‘health care lawsuits,’’ including product liability actions against 

negligent drug companies and for-profit nursing home corporations.1 MICRA only applies to malpractice cases against a doctor or 

hospital. 

3. Punitive Damages 

Punitive damages are capped in H.R. 5 at two times the eco- nomic loss or $250,000, whichever is greater.2 California’s MICRA 

law does not cap punitive damages. Punitive damages are reserved 

for only the most egregious cases and are meant to punish the defendant and deter future dangerous conduct. 

Furthermore, H.R. 5 gives total immunity from punitive damages 

to the pharmaceutical industry if the products have been approved 

by the FDA or, even if not approved by the FDA, are ‘‘generally 

recognized among qualified experts as safe and effective . . .’’ 

MICRA does not contain this kind of sweeping immunity for the 

drug industry.3 Granting immunity from the threat of punitive 

damages removes the major financial incentive for drug companies 

to immediately remove dangerous drugs from the shelves as soon 

as they become aware of those dangers. 

4. Loss of Consortium 

Unlike H.R. 5, California courts recognize a separate claim for 

loss of consortium—claims brought by the spouse of an injured patient for loss to the marital relationship. H.R. 5’s more restrictive 

cap limits the rights of both the patient and the spouse to a 

$250,000 aggregate. The amount of noneconomic damages that can 

be recovered cannot exceed $250,000 no matter how many parties 

have suffered injuries as a result of medical negligence. 

5. Joint & Several Liability 

H.R. 5 completely eliminates joint liability for economic and noneconomic loss.4 California law only eliminates joint liability for 

noneconomic damages. Joint liability enables an individual to bring 


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one claim against all of the parties involved and have those responsible for the injuries apportion fault among them, ensuring the injured victim is fully compensated. Because economic damages typically include an award meant to pay for the future medical costs 

of the victim, a majority of states (including California) have refused to limit joint liability for economic loss. When injured patients are not fully compensated for their future health care costs, 

taxpayers end up footing the bill. 

6. Insurance Industry Reforms 

H.R. 5 does not contain any provisions addressing conduct in the 

medical malpractice insurance industry. Following the passage of 

MICRA, California enacted Proposition 103, a ballot initiative that 

included a mandatory 20% premium rate rollback. It is clear that 

both of these changes were necessary to address rising medical 

malpractice insurance premiums in California. H.R. 5 does not include any insurance reform to guarantee lower rates for doctors. In 

fact, the bill does not even mention insurance companies except for 

the provisions giving them protection from liability. 

HOWARD L. BERMAN. 

ZOE LOFGREN. 

MAXINE WATERS. 

JUDY CHU. 

LINDA T. SA ́ NCHEZ. 

Æ 


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