II 

Calendar No. 422 

109TH CONGRESS 

2D SESSION S. 22 

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. 

IN THE SENATE OF THE UNITED STATES 

MAY 3, 2006 

Mr. ENSIGN (for himself, Mr. FRIST, Mr. GREGG, Mr. MCCONNELL, Mr. 

HATCH, Mr. SANTORUM, Mr. DEMINT, Mr. INHOFE, Mr. BURNS, Mrs. 

DOLE, Mr. CORNYN, Mr. VOINOVICH, Mr. BURR, Mr. ALLARD, Mr. 

COBURN, Mr. VITTER, and Mr. ALEXANDER) introduced the following 

bill; which was read the first time 

MAY 4, 2006 

Read the second time and placed on the calendar 

A BILL 

To improve patient access to health care services and provide 

improved medical care by reducing the excessive burden 

the liability system places on the health care delivery 

system. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Medical Care Access 

3 Protection Act of 2006’’ or the ‘‘MCAP Act’’. 

4 SEC. 2. FINDINGS AND PURPOSE. 

5 (a) FINDINGS.— 

6 (1) EFFECT ON HEALTH CARE ACCESS AND

7 COSTS.—Congress finds that our current civil justice 

8 system is adversely affecting patient access to health 

9 care services, better patient care, and cost-efficient 

10 health care, in that the health care liability system 

11 is a costly and ineffective mechanism for resolving 

12 claims of health care liability and compensating in13 jured patients, and is a deterrent to the sharing of 

14 information among health care professionals which 

15 impedes efforts to improve patient safety and quality 

16 of care. 

17 (2) EFFECT ON INTERSTATE COMMERCE.— 

18 Congress finds that the health care and insurance 

19 industries are industries affecting interstate com20 merce and the health care liability litigation systems 

21 existing throughout the United States are activities 

22 that affect interstate commerce by contributing to 

23 the high costs of health care and premiums for 

24 health care liability insurance purchased by health 

25 care system providers. 


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1 (3) EFFECT ON FEDERAL SPENDING.—Con2 gress finds that the health care liability litigation 

3 systems existing throughout the United States have 

4 a significant effect on the amount, distribution, and 

5 use of Federal funds because of— 

6 (A) the large number of individuals who 

7 receive health care benefits under programs op8 erated or financed by the Federal Government; 

9 (B) the large number of individuals who 

10 benefit because of the exclusion from Federal 

11 taxes of the amounts spent to provide them 

12 with health insurance benefits; and 

13 (C) the large number of health care pro14 viders who provide items or services for which 

15 the Federal Government makes payments. 

16 (b) PURPOSE.—It is the purpose of this Act to imple17 ment reasonable, comprehensive, and effective health care 

18 liability reforms designed to— 

19 (1) improve the availability of health care serv20 ices in cases in which health care liability actions 

21 have been shown to be a factor in the decreased 

22 availability of services; 

23 (2) reduce the incidence of ‘‘defensive medi24 cine’’ and lower the cost of health care liability inVerDate Aug 31 2005 00:14 May 05, 2006 Jkt 049196 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S22.PCS S22

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1 surance, all of which contribute to the escalation of 

2 health care costs; 

3 (3) ensure that persons with meritorious health 

4 care injury claims receive fair and adequate com5 pensation, including reasonable noneconomic dam6 ages; 

7 (4) improve the fairness and cost-effectiveness 

8 of our current health care liability system to resolve 

9 disputes over, and provide compensation for, health 

10 care liability by reducing uncertainty in the amount 

11 of compensation provided to injured individuals; and 

12 (5) provide an increased sharing of information 

13 in the health care system which will reduce unin14 tended injury and improve patient care. 

15 SEC. 3. DEFINITIONS. 

16 In this Act: 

17 (1) ALTERNATIVE DISPUTE RESOLUTION SYS18 TEM; ADR.—The term ‘‘alternative dispute resolution 

19 system’’ or ‘‘ADR’’ means a system that provides 

20 for the resolution of health care lawsuits in a man21 ner other than through a civil action brought in a 

22 State or Federal court. 

23 (2) CLAIMANT.—The term ‘‘claimant’’ means 

24 any person who brings a health care lawsuit, includ25 ing a person who asserts or claims a right to legal 


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1 or equitable contribution, indemnity or subrogation, 

2 arising out of a health care liability claim or action, 

3 and any person on whose behalf such a claim is as4 serted or such an action is brought, whether de5 ceased, incompetent, or a minor. 

6 (3) COLLATERAL SOURCE BENEFITS.—The 

7 term ‘‘collateral source benefits’’ means any amount 

8 paid or reasonably likely to be paid in the future to 

9 or on behalf of the claimant, or any service, product 

10 or other benefit provided or reasonably likely to be 

11 provided in the future to or on behalf of the claim12 ant, as a result of the injury or wrongful death, pur13 suant to— 

14 (A) any State or Federal health, sickness, 

15 income-disability, accident, or workers’ com16 pensation law; 

17 (B) any health, sickness, income-disability, 

18 or accident insurance that provides health bene19 fits or income-disability coverage; 

20 (C) any contract or agreement of any 

21 group, organization, partnership, or corporation 

22 to provide, pay for, or reimburse the cost of 

23 medical, hospital, dental, or income disability 

24 benefits; and 


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1 (D) any other publicly or privately funded 

2 program. 

3 (4) COMPENSATORY DAMAGES.—The term 

4 ‘‘compensatory damages’’ means objectively 

5 verifiable monetary losses incurred as a result of the 

6 provision of, use of, or payment for (or failure to 

7 provide, use, or pay for) health care services or med8 ical products, such as past and future medical ex9 penses, loss of past and future earnings, cost of ob10 taining domestic services, loss of employment, and 

11 loss of business or employment opportunities, dam12 ages for physical and emotional pain, suffering, in13 convenience, physical impairment, mental anguish, 

14 disfigurement, loss of enjoyment of life, loss of soci15 ety and companionship, loss of consortium (other 

16 than loss of domestic service), hedonic damages, in17 jury to reputation, and all other nonpecuniary losses 

18 of any kind or nature. Such term includes economic 

19 damages and noneconomic damages, as such terms 

20 are defined in this section. 

21 (5) CONTINGENT FEE.—The term ‘‘contingent 

22 fee’’ includes all compensation to any person or per23 sons which is payable only if a recovery is effected 

24 on behalf of one or more claimants. 


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1 (6) ECONOMIC DAMAGES.—The term ‘‘economic 

2 damages’’ means objectively verifiable monetary 

3 losses incurred as a result of the provision of, use 

4 of, or payment for (or failure to provide, use, or pay 

5 for) health care services or medical products, such as 

6 past and future medical expenses, loss of past and 

7 future earnings, cost of obtaining domestic services, 

8 loss of employment, and loss of business or employ9 ment opportunities. 

10 (7) HEALTH CARE GOODS OR SERVICES.—The 

11 term ‘‘health care goods or services’’ means any 

12 goods or services provided by a health care institu13 tion, provider, or by any individual working under 

14 the supervision of a health care provider, that relates 

15 to the diagnosis, prevention, care, or treatment of 

16 any human disease or impairment, or the assessment 

17 of the health of human beings. 

18 (8) HEALTH CARE INSTITUTION.—The term 

19 ‘‘health care institution’’ means any entity licensed 

20 under Federal or State law to provide health care 

21 services (including but not limited to ambulatory 

22 surgical centers, assisted living facilities, emergency 

23 medical services providers, hospices, hospitals and 

24 hospital systems, nursing homes, or other entities li25 censed to provide such services). 


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1 (9) HEALTH CARE LAWSUIT.—The term 

2 ‘‘health care lawsuit’’ means any health care liability 

3 claim concerning the provision of health care goods 

4 or services affecting interstate commerce, or any 

5 health care liability action concerning the provision 

6 of (or the failure to provide) health care goods or 

7 services affecting interstate commerce, brought in a 

8 State or Federal court or pursuant to an alternative 

9 dispute resolution system, against a health care pro10 vider or a health care institution regardless of the 

11 theory of liability on which the claim is based, or the 

12 number of claimants, plaintiffs, defendants, or other 

13 parties, or the number of claims or causes of action, 

14 in which the claimant alleges a health care liability 

15 claim. 

16 (10) HEALTH CARE LIABILITY ACTION.—The 

17 term ‘‘health care liability action’’ means a civil ac18 tion brought in a State or Federal Court or pursu19 ant to an alternative dispute resolution system, 

20 against a health care provider or a health care insti21 tution regardless of the theory of liability on which 

22 the claim is based, or the number of plaintiffs, de23 fendants, or other parties, or the number of causes 

24 of action, in which the claimant alleges a health care 

25 liability claim. 


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1 (11) HEALTH CARE LIABILITY CLAIM.—The 

2 term ‘‘health care liability claim’’ means a demand 

3 by any person, whether or not pursuant to ADR, 

4 against a health care provider or health care institu5 tion, including third-party claims, cross-claims, 

6 counter-claims, or contribution claims, which are 

7 based upon the provision of, use of, or payment for 

8 (or the failure to provide, use, or pay for) health 

9 care services, regardless of the theory of liability on 

10 which the claim is based, or the number of plaintiffs, 

11 defendants, or other parties, or the number of 

12 causes of action. 

13 (12) HEALTH CARE PROVIDER.— 

14 (A) IN GENERAL.—The term ‘‘health care 

15 provider’’ means any person (including but not 

16 limited to a physician (as defined by section 

17 1861(r) of the Social Security Act (42 U.S.C. 

18 1395x(r)), registered nurse, dentist, podiatrist, 

19 pharmacist, chiropractor, or optometrist) re20 quired by State or Federal law to be licensed, 

21 registered, or certified to provide health care 

22 services, and being either so licensed, reg23 istered, or certified, or exempted from such re24 quirement by other statute or regulation. 


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1 (B) TREATMENT OF CERTAIN PROFES2 SIONAL ASSOCIATIONS.—For purposes of this 

3 Act, a professional association that is organized 

4 under State law by an individual physician or 

5 group of physicians, a partnership or limited li6 ability partnership formed by a group of physi7 cians, a nonprofit health corporation certified 

8 under State law, or a company formed by a 

9 group of physicians under State law shall be 

10 treated as a health care provider under sub11 paragraph (A). 

12 (13) MALICIOUS INTENT TO INJURE.—The 

13 term ‘‘malicious intent to injure’’ means inten14 tionally causing or attempting to cause physical in15 jury other than providing health care goods or serv16 ices. 

17 (14) NONECONOMIC DAMAGES.—The term 

18 ‘‘noneconomic damages’’ means damages for phys19 ical and emotional pain, suffering, inconvenience, 

20 physical impairment, mental anguish, disfigurement, 

21 loss of enjoyment of life, loss of society and compan22 ionship, loss of consortium (other than loss of do23 mestic service), hedonic damages, injury to reputa24 tion, and all other nonpecuniary losses of any kind 

25 or nature. 


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1 (15) PUNITIVE DAMAGES.—The term ‘‘punitive 

2 damages’’ means damages awarded, for the purpose 

3 of punishment or deterrence, and not solely for com4 pensatory purposes, against a health care provider 

5 or health care institution. Punitive damages are nei6 ther economic nor noneconomic damages. 

7 (16) RECOVERY.—The term ‘‘recovery’’ means 

8 the net sum recovered after deducting any disburse9 ments or costs incurred in connection with prosecu10 tion or settlement of the claim, including all costs 

11 paid or advanced by any person. Costs of health care 

12 incurred by the plaintiff and the attorneys’ office 

13 overhead costs or charges for legal services are not 

14 deductible disbursements or costs for such purpose. 

15 (17) STATE.—The term ‘‘State’’ means each of 

16 the several States, the District of Columbia, the 

17 Commonwealth of Puerto Rico, the Virgin Islands, 

18 Guam, American Samoa, the Northern Mariana Is19 lands, the Trust Territory of the Pacific Islands, and 

20 any other territory or possession of the United 

21 States, or any political subdivision thereof. 

22 SEC. 4. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

23 (a) IN GENERAL.—Except as otherwise provided for 

24 in this section, the time for the commencement of a health 

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1 tion of injury or 1 year after the claimant discovers, or 

2 through the use of reasonable diligence should have discov3 ered, the injury, whichever occurs first. 

4 (b) GENERAL EXCEPTION.—The time for the com5 mencement of a health care lawsuit shall not exceed 3 

6 years after the date of manifestation of injury unless the 

7 tolling of time was delayed as a result of— 

8 (1) fraud; 

9 (2) intentional concealment; or 

10 (3) the presence of a foreign body, which has no 

11 therapeutic or diagnostic purpose or effect, in the 

12 person of the injured person. 

13 (c) MINORS.—An action by a minor shall be com14 menced within 3 years from the date of the alleged mani15 festation of injury except that if such minor is under the 

16 full age of 6 years, such action shall be commenced within 

17 3 years of the manifestation of injury, or prior to the 

18 eighth birthday of the minor, whichever provides a longer 

19 period. Such time limitation shall be tolled for minors for 

20 any period during which a parent or guardian and a health 

21 care provider or health care institution have committed 

22 fraud or collusion in the failure to bring an action on be23 half of the injured minor. 

24 (d) RULE 11 SANCTIONS.—Whenever a Federal or 

25 State court determines (whether by motion of the parties 


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1 or whether on the motion of the court) that there has been 

2 a violation of Rule 11 of the Federal Rules of Civil Proce3 dure (or a similar violation of applicable State court rules) 

4 in a health care liability action to which this Act applies, 

5 the court shall impose upon the attorneys, law firms, or 

6 pro se litigants that have violated Rule 11 or are respon7 sible for the violation, an appropriate sanction, which shall 

8 include an order to pay the other party or parties for the 

9 reasonable expenses incurred as a direct result of the filing 

10 of the pleading, motion, or other paper that is the subject 

11 of the violation, including a reasonable attorneys’ fee. 

12 Such sanction shall be sufficient to deter repetition of such 

13 conduct or comparable conduct by others similarly situ14 ated, and to compensate the party or parties injured by 

15 such conduct. 

16 SEC. 5. COMPENSATING PATIENT INJURY. 

17 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

18 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 

19 health care lawsuit, nothing in this Act shall limit the re20 covery by a claimant of the full amount of the available 

21 economic damages, notwithstanding the limitation con22 tained in subsection (b). 

23 (b) ADDITIONAL NONECONOMIC DAMAGES.— 

24 (1) HEALTH CARE PROVIDERS.—In any health 

25 care lawsuit where final judgment is rendered 


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1 against a health care provider, the amount of non2 economic damages recovered from the provider, if 

3 otherwise available under applicable Federal or State 

4 law, may be as much as $250,000, regardless of the 

5 number of parties other than a health care institu6 tion against whom the action is brought or the num7 ber of separate claims or actions brought with re8 spect to the same occurrence. 

9 (2) HEALTH CARE INSTITUTIONS.— 

10 (A) SINGLE INSTITUTION.—In any health 

11 care lawsuit where final judgment is rendered 

12 against a single health care institution, the 

13 amount of noneconomic damages recovered 

14 from the institution, if otherwise available 

15 under applicable Federal or State law, may be 

16 as much as $250,000, regardless of the number 

17 of parties against whom the action is brought 

18 or the number of separate claims or actions 

19 brought with respect to the same occurrence. 

20 (B) MULTIPLE INSTITUTIONS.—In any 

21 health care lawsuit where final judgment is ren22 dered against more than one health care insti23 tution, the amount of noneconomic damages re24 covered from each institution, if otherwise avail25 able under applicable Federal or State law, may 


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1 be as much as $250,000, regardless of the 

2 number of parties against whom the action is 

3 brought or the number of separate claims or ac4 tions brought with respect to the same occur5 rence, except that the total amount recovered 

6 from all such institutions in such lawsuit shall 

7 not exceed $500,000. 

8 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

9 DAMAGES.—In any health care lawsuit— 

10 (1) an award for future noneconomic damages 

11 shall not be discounted to present value; 

12 (2) the jury shall not be informed about the 

13 maximum award for noneconomic damages under 

14 subsection (b); 

15 (3) an award for noneconomic damages in ex16 cess of the limitations provided for in subsection (b) 

17 shall be reduced either before the entry of judgment, 

18 or by amendment of the judgment after entry of 

19 judgment, and such reduction shall be made before 

20 accounting for any other reduction in damages re21 quired by law; and 

22 (4) if separate awards are rendered for past 

23 and future noneconomic damages and the combined 

24 awards exceed the limitations described in subsection 


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1 (b), the future noneconomic damages shall be re2 duced first. 

3 (d) FAIR SHARE RULE.—In any health care lawsuit, 

4 each party shall be liable for that party’s several share 

5 of any damages only and not for the share of any other 

6 person. Each party shall be liable only for the amount of 

7 damages allocated to such party in direct proportion to 

8 such party’s percentage of responsibility. A separate judg9 ment shall be rendered against each such party for the 

10 amount allocated to such party. For purposes of this sec11 tion, the trier of fact shall determine the proportion of 

12 responsibility of each party for the claimant’s harm. 

13 SEC. 6. MAXIMIZING PATIENT RECOVERY. 

14 (a) COURT SUPERVISION OF SHARE OF DAMAGES

15 ACTUALLY PAID TO CLAIMANTS.— 

16 (1) IN GENERAL.—In any health care lawsuit, 

17 the court shall supervise the arrangements for pay18 ment of damages to protect against conflicts of in19 terest that may have the effect of reducing the 

20 amount of damages awarded that are actually paid 

21 to claimants. 

22 (2) CONTINGENCY FEES.— 

23 (A) IN GENERAL.—In any health care law24 suit in which the attorney for a party claims a 

25 financial stake in the outcome by virtue of a 


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1 contingent fee, the court shall have the power 

2 to restrict the payment of a claimant’s damage 

3 recovery to such attorney, and to redirect such 

4 damages to the claimant based upon the inter5 ests of justice and principles of equity. 

6 (B) LIMITATION.—The total of all contin7 gent fees for representing all claimants in a 

8 health care lawsuit shall not exceed the fol9 lowing limits: 

10 (i) 40 percent of the first $50,000 re11 covered by the claimant(s). 

(ii) 331 12 ⁄3 percent of the next $50,000 

13 recovered by the claimant(s). 

14 (iii) 25 percent of the next $500,000 

15 recovered by the claimant(s). 

16 (iv) 15 percent of any amount by 

17 which the recovery by the claimant(s) is in 

18 excess of $600,000. 

19 (b) APPLICABILITY.— 

20 (1) IN GENERAL.—The limitations in subsection 

21 (a) shall apply whether the recovery is by judgment, 

22 settlement, mediation, arbitration, or any other form 

23 of alternative dispute resolution. 

24 (2) MINORS.—In a health care lawsuit involving 

25 a minor or incompetent person, a court retains the 


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1 authority to authorize or approve a fee that is less 

2 than the maximum permitted under this section. 

3 (c) EXPERT WITNESSES.— 

4 (1) REQUIREMENT.—No individual shall be 

5 qualified to testify as an expert witness concerning 

6 issues of negligence in any health care lawsuit 

7 against a defendant unless such individual— 

8 (A) except as required under paragraph 

9 (2), is a health care professional who— 

10 (i) is appropriately credentialed or li11 censed in 1 or more States to deliver 

12 health care services; and 

13 (ii) typically treats the diagnosis or 

14 condition or provides the type of treatment 

15 under review; and 

16 (B) can demonstrate by competent evi17 dence that, as a result of training, education, 

18 knowledge, and experience in the evaluation, di19 agnosis, and treatment of the disease or injury 

20 which is the subject matter of the lawsuit 

21 against the defendant, the individual was sub22 stantially familiar with applicable standards of 

23 care and practice as they relate to the act or 

24 omission which is the subject of the lawsuit on 

25 the date of the incident. 


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1 (2) PHYSICIAN REVIEW.—In a health care law2 suit, if the claim of the plaintiff involved treatment 

3 that is recommended or provided by a physician 

4 (allopathic or osteopathic), an individual shall not be 

5 qualified to be an expert witness under this sub6 section with respect to issues of negligence con7 cerning such treatment unless such individual is a 

8 physician. 

9 (3) SPECIALTIES AND SUBSPECIALTIES.—With 

10 respect to a lawsuit described in paragraph (1), a 

11 court shall not permit an expert in one medical spe12 cialty or subspecialty to testify against a defendant 

13 in another medical specialty or subspecialty unless, 

14 in addition to a showing of substantial familiarity in 

15 accordance with paragraph (1)(B), there is a show16 ing that the standards of care and practice in the 

17 two specialty or subspecialty fields are similar. 

18 (4) LIMITATION.—The limitations in this sub19 section shall not apply to expert witnesses testifying 

20 as to the degree or permanency of medical or phys21 ical impairment. 

22 SEC. 7. ADDITIONAL HEALTH BENEFITS. 

23 (a) IN GENERAL.—The amount of any damages re24 ceived by a claimant in any health care lawsuit shall be 

25 reduced by the court by the amount of any collateral 


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1 source benefits to which the claimant is entitled, less any 

2 insurance premiums or other payments made by the claim3 ant (or by the spouse, parent, child, or legal guardian of 

4 the claimant) to obtain or secure such benefits. 

5 (b) PRESERVATION OF CURRENT LAW.—Where a 

6 payor of collateral source benefits has a right of recovery 

7 by reimbursement or subrogation and such right is per8 mitted under Federal or State law, subsection (a) shall 

9 not apply. 

10 (c) APPLICATION OF PROVISION.—This section shall 

11 apply to any health care lawsuit that is settled or resolved 

12 by a fact finder. 

13 SEC. 8. PUNITIVE DAMAGES. 

14 (a) PUNITIVE DAMAGES PERMITTED.— 

15 (1) IN GENERAL.—Punitive damages may, if 

16 otherwise available under applicable State or Federal 

17 law, be awarded against any person in a health care 

18 lawsuit only if it is proven by clear and convincing 

19 evidence that such person acted with malicious in20 tent to injure the claimant, or that such person de21 liberately failed to avoid unnecessary injury that 

22 such person knew the claimant was substantially 

23 certain to suffer. 

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1 suit as initially filed. A court may allow a claimant 

2 to file an amended pleading for punitive damages 

3 only upon a motion by the claimant and after a find4 ing by the court, upon review of supporting and op5 posing affidavits or after a hearing, after weighing 

6 the evidence, that the claimant has established by a 

7 substantial probability that the claimant will prevail 

8 on the claim for punitive damages. 

9 (3) SEPARATE PROCEEDING.—At the request of 

10 any party in a health care lawsuit, the trier of fact 

11 shall consider in a separate proceeding— 

12 (A) whether punitive damages are to be 

13 awarded and the amount of such award; and 

14 (B) the amount of punitive damages fol15 lowing a determination of punitive liability. 

16 If a separate proceeding is requested, evidence rel17 evant only to the claim for punitive damages, as de18 termined by applicable State law, shall be inadmis19 sible in any proceeding to determine whether com20 pensatory damages are to be awarded. 

21 (4) LIMITATION WHERE NO COMPENSATORY

22 DAMAGES ARE AWARDED.—In any health care law23 suit where no judgment for compensatory damages 

24 is rendered against a person, no punitive damages 


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1 may be awarded with respect to the claim in such 

2 lawsuit against such person. 

3 (b) DETERMINING AMOUNT OF PUNITIVE DAM4 AGES.— 

5 (1) FACTORS CONSIDERED.—In determining 

6 the amount of punitive damages under this section, 

7 the trier of fact shall consider only the following: 

8 (A) the severity of the harm caused by the 

9 conduct of such party; 

10 (B) the duration of the conduct or any 

11 concealment of it by such party; 

12 (C) the profitability of the conduct to such 

13 party; 

14 (D) the number of products sold or med15 ical procedures rendered for compensation, as 

16 the case may be, by such party, of the kind 

17 causing the harm complained of by the claim18 ant; 

19 (E) any criminal penalties imposed on such 

20 party, as a result of the conduct complained of 

21 by the claimant; and 

22 (F) the amount of any civil fines assessed 

23 against such party as a result of the conduct 

24 complained of by the claimant. 


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1 (2) MAXIMUM AWARD.—The amount of punitive 

2 damages awarded in a health care lawsuit may not 

3 exceed an amount equal to two times the amount of 

4 economic damages awarded in the lawsuit or 

5 $250,000, whichever is greater. The jury shall not 

6 be informed of the limitation under the preceding 

7 sentence. 

8 (c) LIABILITY OF HEALTH CARE PROVIDERS.— 

9 (1) IN GENERAL.—A health care provider who 

10 prescribes, or who dispenses pursuant to a prescrip11 tion, a drug, biological product, or medical device 

12 approved by the Food and Drug Administration, for 

13 an approved indication of the drug, biological prod14 uct, or medical device, shall not be named as a party 

15 to a product liability lawsuit invoking such drug, bi16 ological product, or medical device and shall not be 

17 liable to a claimant in a class action lawsuit against 

18 the manufacturer, distributor, or product seller of 

19 such drug, biological product, or medical device. 

20 (2) MEDICAL PRODUCT.—The term ‘‘medical 

21 product’’ means a drug or device intended for hu22 mans. The terms ‘‘drug’’ and ‘‘device’’ have the 

23 meanings given such terms in sections 201(g)(1) and 

24 201(h) of the Federal Food, Drug and Cosmetic Act 

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1 nent or raw material used therein, but excluding 

2 health care services. 

3 SEC. 9. AUTHORIZATION OF PAYMENT OF FUTURE DAM4 AGES TO CLAIMANTS IN HEALTH CARE LAW5 SUITS. 

6 (a) IN GENERAL.—In any health care lawsuit, if an 

7 award of future damages, without reduction to present 

8 value, equaling or exceeding $50,000 is made against a 

9 party with sufficient insurance or other assets to fund a 

10 periodic payment of such a judgment, the court shall, at 

11 the request of any party, enter a judgment ordering that 

12 the future damages be paid by periodic payments in ac13 cordance with the Uniform Periodic Payment of Judg14 ments Act promulgated by the National Conference of 

15 Commissioners on Uniform State Laws. 

16 (b) APPLICABILITY.—This section applies to all ac17 tions which have not been first set for trial or retrial be18 fore the effective date of this Act. 

19 SEC. 10. EFFECT ON OTHER LAWS. 

20 (a) GENERAL VACCINE INJURY.— 

21 (1) IN GENERAL.—To the extent that title XXI 

22 of the Public Health Service Act establishes a Fed23 eral rule of law applicable to a civil action brought 

24 for a vaccine-related injury or death— 


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1 (A) this Act shall not affect the application 

2 of the rule of law to such an action; and 

3 (B) any rule of law prescribed by this Act 

4 in conflict with a rule of law of such title XXI 

5 shall not apply to such action. 

6 (2) EXCEPTION.—If there is an aspect of a civil 

7 action brought for a vaccine-related injury or death 

8 to which a Federal rule of law under title XXI of 

9 the Public Health Service Act does not apply, then 

10 this Act or otherwise applicable law (as determined 

11 under this Act) will apply to such aspect of such ac12 tion. 

13 (b) SMALLPOX VACCINE INJURY.— 

14 (1) IN GENERAL.—To the extent that part C of 

15 title II of the Public Health Service Act establishes 

16 a Federal rule of law applicable to a civil action 

17 brought for a smallpox vaccine-related injury or 

18 death— 

19 (A) this Act shall not affect the application 

20 of the rule of law to such an action; and 

21 (B) any rule of law prescribed by this Act 

22 in conflict with a rule of law of such part C 

23 shall not apply to such action. 

24 (2) EXCEPTION.—If there is an aspect of a civil 

25 action brought for a smallpox vaccine-related injury 


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•S 22 PCS

1 or death to which a Federal rule of law under part 

2 C of title II of the Public Health Service Act does 

3 not apply, then this Act or otherwise applicable law 

4 (as determined under this Act) will apply to such as5 pect of such action. 

6 (c) OTHER FEDERAL LAW.—Except as provided in 

7 this section, nothing in this Act shall be deemed to affect 

8 any defense available, or any limitation on liability that 

9 applies to, a defendant in a health care lawsuit or action 

10 under any other provision of Federal law. 

11 SEC. 11. STATE FLEXIBILITY AND PROTECTION OF STATES’ 

12 RIGHTS. 

13 (a) HEALTH CARE LAWSUITS.—The provisions gov14 erning health care lawsuits set forth in this Act shall pre15 empt, subject to subsections (b) and (c), State law to the 

16 extent that State law prevents the application of any pro17 visions of law established by or under this Act. The provi18 sions governing health care lawsuits set forth in this Act 

19 supersede chapter 171 of title 28, United States Code, to 

20 the extent that such chapter— 

21 (1) provides for a greater amount of damages 

22 or contingent fees, a longer period in which a health 

23 care lawsuit may be commenced, or a reduced appli24 cability or scope of periodic payment of future dam25 ages, than provided in this Act; or 


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1 (2) prohibits the introduction of evidence re2 garding collateral source benefits. 

3 (b) PREEMPTION OF CERTAIN STATE LAWS.—No 

4 provision of this Act shall be construed to preempt any 

5 State law (whether effective before, on, or after the date 

6 of the enactment of this Act) that specifies a particular 

7 monetary amount of compensatory or punitive damages 

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

9 in a health care lawsuit, regardless of whether such mone10 tary amount is greater or lesser than is provided for under 

11 this Act, notwithstanding section 5(a). 

12 (c) PROTECTION OF STATE’S RIGHTS AND OTHER

13 LAWS.— 

14 (1) IN GENERAL.—Any issue that is not gov15 erned by a provision of law established by or under 

16 this Act (including the State standards of neg17 ligence) shall be governed by otherwise applicable 

18 Federal or State law. 

19 (2) RULE OF CONSTRUCTION.—Nothing in this 

20 Act shall be construed to— 

21 (A) preempt or supersede any Federal or 

22 State law that imposes greater procedural or 

23 substantive protections (such as a shorter stat24 ute of limitations) for a health care provider or 


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1 health care institution from liability, loss, or 

2 damages than those provided by this Act; 

3 (B) preempt or supercede any State law 

4 that permits and provides for the enforcement 

5 of any arbitration agreement related to a health 

6 care liability claim whether enacted prior to or 

7 after the date of enactment of this Act; 

8 (C) create a cause of action that is not 

9 otherwise available under Federal or State law; 

10 or 

11 (D) affect the scope of preemption of any 

12 other Federal law. 

13 SEC. 12. APPLICABILITY; EFFECTIVE DATE. 

14 This Act shall apply to any health care lawsuit 

15 brought in a Federal or State court, or subject to an alter16 native dispute resolution system, that is initiated on or 

17 after the date of the enactment of this Act, except that 

18 any health care lawsuit arising from an injury occurring 

19 prior to the date of enactment of this Act shall be gov20 erned by the applicable statute of limitations provisions 

21 in effect at the time the injury occurred. 


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jcorcoran on PROD1PC62 with CFR
Calendar No. 422 

109TH CONGRESS 

2D SESSION S. 22 

A BILL 

To improve patient access to health care services 

on the health care delivery system. the excessive burden the liability system places and provide improved medical care by reducing 

MAY 4, 2006 

Read the second time and placed on the calendar 


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