I 

109TH CONGRESS 

1ST SESSION H. R. 2731 

To limit the liability of hospitals and emergency departments for noneconomic 

and punitive damages when providing uncompensated care, and for other 

purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 26, 2005 

Mr. SHADEGG introduced the following bill; which was referred to the 

Committee on the Judiciary 

A BILL 

To limit the liability of hospitals and emergency departments 

for noneconomic and punitive damages when providing 

uncompensated care, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Emergency Care Li5 ability Relief Act’’. 

6 SEC. 2. CONSTITUTIONAL AUTHORITY. 

7 The constitutional authority upon which this Act 

8 rests is the power of Congress to provide for the general 

9 welfare, to regulate commerce, and to make all laws which 
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1 shall be necessary and proper, as enumerated in section 

2 8 of article I of the Constitution of the United States. 

3 SEC. 3. LIMITATIONS ON NONECONOMIC AND PUNITIVE 

4 DAMAGES WHEN PROVIDING UNCOMPEN5 SATED CARE. 

6 (a) IN GENERAL.—Whenever items or services are 

7 furnished under section 1867 of the Social Security Act 

8 (42 U.S.C. 1395dd) to an uninsured individual for pur9 poses of complying with such section, the liability of an 

10 emergency care provider for an injury arising out of the 

11 furnishing of such items or services shall be subject to the 

12 following limitations: 

13 (1) NONECONOMIC DAMAGES.—With respect to 

14 noneconomic damages, the aggregate such liability 

15 for all such providers may not exceed $250,000 or 

16 two times the amount of economic damages, which17 ever is greater. 

18 (2) PUNITIVE DAMAGES.—With respect to puni19 tive damages, the aggregate such liability for all 

20 such providers may not exceed $250,000 or three 

21 times the amount of economic damages, whichever is 

22 greater. 

23 (b) DEFINITIONS.—In this section: 

24 (1) EMERGENCY CARE PROVIDER.—The term 

25 ‘‘emergency care provider’’ means an emergency care 
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1 entity or an officer, governing board member, em2 ployee, or contractor of such an entity. 

3 (2) EMERGENCY CARE ENTITY.—The term 

4 ‘‘emergency care entity’’ means— 

5 (A) a hospital or an emergency department 

6 to which section 1867 of the Social Security Act 

7 (42 U.S.C. 1395dd) applies; and 

8 (B) a physician or physician group that is 

9 employed by, or under contract with, such hos10 pital or department to furnish items and serv11 ices to individuals under such section. 

12 (3) UNINSURED INDIVIDUAL.—The term ‘‘unin13 sured individual’’ means an individual who, at the 

14 time the items or services described in subsection (a) 

15 are furnished— 

16 (A) does not have coverage under— 

17 (i) a group health plan (as defined in 

18 section 2791(a)(1) of the Public Health 

19 Service Act (42 U.S.C. 300gg–91(a)(1))); 

20 (ii) part A (42 U.S.C. 1395c et seq.) 

21 or B (42 U.S.C. 1395j et seq.) of title 

22 XVIII of the Social Security Act; or 

23 (iii) a State plan under title XIX (42 

24 U.S.C. 1396 et seq.) of the Social Security 

25 Act; and 
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1 (B) does not have health insurance cov2 erage (as defined in section 2791(b)(1) of the 

3 Public Health Service Act (42 U.S.C. 300gg– 

4 91(b)(1)) from any other source. 

5 SEC. 4. AWARDS OF ATTORNEY FEES AND COSTS IN AN AC6 TION INVOLVING UNCOMPENSATED CARE. 

7 (a) IN GENERAL.—In any action in any State or Fed8 eral court in which liability or damages described in sec9 tion 3(a) is contested, the court (or the jury, if the matter 

10 is tried before a jury) may award to each prevailing party 

11 a reasonable attorney’s fee and other reasonable costs re12 lating to the prosecution of the action, subject to the other 

13 provisions of this section. 

14 (b) PERSONS LIABLE.—Liability for each award 

15 under subsection (a) shall be borne by one or more of the 

16 following persons, as allocated by the court or jury: 

17 (1) A nonprevailing party personally. 

18 (2) An attorney or law firm representing a non19 prevailing party, but only if such representation was 

20 on a contingent-fee basis. 

21 (c) FACTORS CONSIDERED.—In exercising its discre22 tion under subsections (a) and (b), the court or jury shall 

23 consider, and may conduct a separate evidentiary hearing 

24 on, the following factors: 
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1 (1) The validity or reasonableness, or both, of 

2 the claim of the nonprevailing party. 

3 (2) The reasonableness of the conduct of the 

4 litigation by the attorney or law firm representing 

5 the nonprevailing party, including consideration of 

6 any offer of settlement by the prevailing party. 

7 (3) The reasonableness of the conduct of the 

8 litigation by the attorney or law firm representing 

9 the prevailing party, including consideration of any 

10 offer of settlement by the nonprevailing party. 

11 (4) The financial resources of the nonprevailing 

12 party and the extent to which the nonprevailing 

13 party would have been unfairly discouraged from 

14 pursuing a reasonable and legitimate claim for inju15 ries by such an award. 

16 SEC. 5. JURY IN AN ACTION INVOLVING UNCOMPENSATED 

17 CARE TO CONSIDER EFFECT OF DAMAGES ON 

18 HEALTH CARE LIABILITY INSURANCE. 

19 In any action in any State or Federal court in which 

20 liability or damages described in section 3(a) is contested, 

21 the court shall instruct the jury that in considering the 

22 amount of damages (whether compensatory or punitive) 

23 to award against a defendant that has been found liable, 

24 the jury must consider the effect of the amount awarded 
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1 on the price and availability of health care liability insur2 ance. 

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