II 

Calendar No. 423 

109TH CONGRESS 

2D SESSION S. 23 

To improve women’s access to health care services and provide improved 

medical care by reducing the excessive burden the liability system places 

on the delivery of obstetrical and gynecological services. 

IN THE SENATE OF THE UNITED STATES 

MAY 3, 2006 

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

ENSIGN, Mr. HATCH, Mr. INHOFE, Mrs. DOLE, Mr. BURNS, Mr. TALENT, Mr. VOINOVICH, Mr. BURR, Mr. CORNYN, Mr. ALLARD, Mr. 

DEMINT, 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 women’s access to health care services and provide improved medical care by reducing the excessive 

burden the liability system places on the delivery of obstetrical and gynecological services. 

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 ‘‘Healthy Mothers and 

3 Healthy Babies Access to Care Act’’. 

4 SEC. 2. FINDINGS AND PURPOSE. 

5 (a) FINDINGS.— 

6 (1) EFFECT ON WOMEN’S ACCESS TO HEALTH

7 SERVICES.—Congress finds that— 

8 (A) the current civil justice system is erod9 ing women’s access to obstetrical and gyneco10 logical services; 

11 (B) the American College of Obstetricians 

12 and Gynecologists (ACOG) has identified nearly 

13 half of the States as having a medical liability 

14 insurance crisis that is threatening access to 

15 high-quality obstetrical and gynecological serv16 ices; 

17 (C) because of the high cost of medical li18 ability insurance and the risk of being sued, one 

19 in seven obstetricians and gynecologists have 

20 stopped practicing obstetrics and one in five has 

21 decreased their number of high-risk obstetrics 

22 patients; and 

23 (D) because of the lack of availability of 

24 obstetrical services, women— 

25 (i) must travel longer distances and 

26 cross State lines to find a doctor; 


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1 (ii) have longer waiting periods (in 

2 some cases months) for appointments; 

3 (iii) have shorter visits with their phy4 sicians once they get appointments; 

5 (iv) have less access to maternal-fetal 

6 medicine specialists, physicians with the 

7 most experience and training in the care of 

8 women with high-risk pregnancies; and 

9 (v) have fewer hospitals with mater10 nity wards where they can deliver their 

11 child, potentially endangering the lives and 

12 health of the woman and her unborn child. 

13 (2) EFFECT ON INTERSTATE COMMERCE.— 

14 Congress finds that the health care and insurance 

15 industries are industries affecting interstate com16 merce and the health care liability litigation systems 

17 existing throughout the United States are activities 

18 that affect interstate commerce by contributing to 

19 the high costs of health care and premiums for 

20 health care liability insurance purchased by health 

21 care system providers. 

22 (3) EFFECT ON FEDERAL SPENDING.—Con23 gress finds that the health care liability litigation 

24 systems existing throughout the United States have 


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1 a significant effect on the amount, distribution, and 

2 use of Federal funds because of— 

3 (A) the large number of individuals who 

4 receive health care benefits under programs op5 erated or financed by the Federal Government; 

6 (B) the large number of individuals who 

7 benefit because of the exclusion from Federal 

8 taxes of the amounts spent to provide them 

9 with health insurance benefits; and 

10 (C) the large number of health care pro11 viders who provide items or services for which 

12 the Federal Government makes payments. 

13 (b) PURPOSE.—It is the purpose of this Act to imple14 ment reasonable, comprehensive, and effective health care 

15 liability reforms designed to— 

16 (1) improve the availability of health care serv17 ices in cases in which health care liability actions 

18 have been shown to be a factor in the decreased 

19 availability of services; 

20 (2) reduce the incidence of ‘‘defensive medi21 cine’’ and lower the cost of health care liability in22 surance, all of which contribute to the escalation of 

23 health care costs; 

24 (3) ensure that persons with meritorious health 

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1 pensation, including reasonable noneconomic dam2 ages; 

3 (4) improve the fairness and cost-effectiveness 

4 of our current health care liability system to resolve 

5 disputes over, and provide compensation for, health 

6 care liability by reducing uncertainty in the amount 

7 of compensation provided to injured individuals; and 

8 (5) provide an increased sharing of information 

9 in the health care system which will reduce unin10 tended injury and improve patient care. 

11 SEC. 3. DEFINITIONS. 

12 In this Act: 

13 (1) ALTERNATIVE DISPUTE RESOLUTION SYS14 TEM; ADR.—The term ‘‘alternative dispute resolution 

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

16 for the resolution of health care lawsuits in a man17 ner other than through a civil action brought in a 

18 State or Federal court. 

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

20 any person who brings a health care lawsuit, includ21 ing a person who asserts or claims a right to legal 

22 or equitable contribution, indemnity or subrogation, 

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

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1 serted or such an action is brought, whether de2 ceased, incompetent, or a minor. 

3 (3) COLLATERAL SOURCE BENEFITS.—The 

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

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

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

7 or other benefit provided or reasonably likely to be 

8 provided in the future to or on behalf of the claim9 ant, as a result of the injury or wrongful death, pur10 suant to— 

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

12 income-disability, accident, or workers’ com13 pensation law; 

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

15 or accident insurance that provides health bene16 fits or income-disability coverage; 

17 (C) any contract or agreement of any 

18 group, organization, partnership, or corporation 

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

20 medical, hospital, dental, or income disability 

21 benefits; and 

22 (D) any other publicly or privately funded 

23 program. 

24 (4) COMPENSATORY DAMAGES.—The term 

25 ‘‘compensatory damages’’ means objectively 


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1 verifiable monetary losses incurred as a result of the 

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

3 provide, use, or pay for) health care services or med4 ical products, such as past and future medical ex5 penses, loss of past and future earnings, cost of ob6 taining domestic services, loss of employment, and 

7 loss of business or employment opportunities, dam8 ages for physical and emotional pain, suffering, in9 convenience, physical impairment, mental anguish, 

10 disfigurement, loss of enjoyment of life, loss of soci11 ety and companionship, loss of consortium (other 

12 than loss of domestic service), hedonic damages, in13 jury to reputation, and all other nonpecuniary losses 

14 of any kind or nature. Such term includes economic 

15 damages and noneconomic damages, as such terms 

16 are defined in this section. 

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

18 fee’’ includes all compensation to any person or per19 sons which is payable only if a recovery is effected 

20 on behalf of one or more claimants. 

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

22 damages’’ means objectively verifiable monetary 

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

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

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


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1 past and future medical expenses, loss of past and 

2 future earnings, cost of obtaining domestic services, 

3 loss of employment, and loss of business or employ4 ment opportunities. 

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

6 term ‘‘health care goods or services’’ means any ob7 stetrical or gynecological goods or services provided 

8 by a health care institution, provider, or by any indi9 vidual working under the supervision of a health 

10 care provider, that relates to the diagnosis, preven11 tion, care, or treatment of any obstetrical or gyneco12 logical-related human disease or impairment, or the 

13 assessment of the health of human beings. 

14 (8) HEALTH CARE INSTITUTION.—The term 

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

16 under Federal or State law to provide health care 

17 services (including but not limited to ambulatory 

18 surgical centers, assisted living facilities, emergency 

19 medical services providers, hospices, hospitals and 

20 hospital systems, nursing homes, or other entities li21 censed to provide such services). 

22 (9) HEALTH CARE LAWSUIT.—The term 

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

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1 merce, or any health care liability action concerning 

2 the provision of (or the failure to provide) obstetrical 

3 or gynecological goods or services affecting interstate 

4 commerce, brought in a State or Federal court or 

5 pursuant to an alternative dispute resolution system, 

6 against a physician or other health care provider 

7 who delivers obstetrical or gynecological services or 

8 a health care institution (only with respect to obstet9 rical or gynecological services) regardless of the the10 ory of liability on which the claim is based, or the 

11 number of claimants, plaintiffs, defendants, or other 

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

13 in which the claimant alleges a health care liability 

14 claim. 

15 (10) HEALTH CARE LIABILITY ACTION.—The 

16 term ‘‘health care liability action’’ means a civil ac17 tion brought in a State or Federal Court or pursu18 ant to an alternative dispute resolution system, 

19 against a health care provider who delivers obstet20 rical or gynecological services or a health care insti21 tution (only with respect to obstetrical or gyneco22 logical services) regardless of the theory of liability 

23 on which the claim is based, or the number of plain24 tiffs, defendants, or other parties, or the number of 


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1 causes of action, in which the claimant alleges a 

2 health care liability claim. 

3 (11) HEALTH CARE LIABILITY CLAIM.—The 

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

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

6 against a health care provider who delivers obstet7 rical or gynecological services or a health care insti8 tution (only with respect to obstetrical or gyneco9 logical services), including third-party claims, cross10 claims, counter-claims, or contribution claims, which 

11 are based upon the provision of, use of, or payment 

12 for (or the failure to provide, use, or pay for) obstet13 rical or gynecological services, regardless of the the14 ory of liability on which the claim is based, or the 

15 number of plaintiffs, defendants, or other parties, or 

16 the number of causes of action. 

17 (12) HEALTH CARE PROVIDER.— 

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

19 provider’’ means any person (including but not 

20 limited to a physician (as defined by section 

21 1861(r) of the Social Security Act (42 U.S.C. 

22 1395x(r)), nurse, dentist, podiatrist, phar23 macist, chiropractor, or optometrist) required 

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1 ices, and being either so licensed, registered, or 

2 certified, or exempted from such requirement by 

3 other statute or regulation. 

4 (B) TREATMENT OF CERTAIN PROFES5 SIONAL ASSOCIATIONS.—For purposes of this 

6 Act, a professional association that is organized 

7 under State law by an individual physician or 

8 group of physicians, a partnership or limited li9 ability partnership formed by a group of physi10 cians, a nonprofit health corporation certified 

11 under State law, or a company formed by a 

12 group of physicians under State law shall be 

13 treated as a health care provider under sub14 paragraph (A). 

15 (13) MALICIOUS INTENT TO INJURE.—The 

16 term ‘‘malicious intent to injure’’ means inten17 tionally causing or attempting to cause physical in18 jury other than providing health care goods or serv19 ices. 

20 (14) NONECONOMIC DAMAGES.—The term 

21 ‘‘noneconomic damages’’ means damages for phys22 ical and emotional pain, suffering, inconvenience, 

23 physical impairment, mental anguish, disfigurement, 

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1 mestic service), hedonic damages, injury to reputa2 tion, and all other nonpecuniary losses of any kind 

3 or nature. 

4 (15) OBSTETRICAL OR GYNECOLOGICAL SERV5 ICES.—The term ‘‘obstetrical or gynecological serv6 ices’’ means services for pre-natal care or labor and 

7 delivery, including the immediate postpartum period 

8 (as determined in accordance with the definition of 

9 postpartum used for purposes of title XIX of the So10 cial Security Act (42 U.S.C. 1396 et seq.)). 

11 (16) PUNITIVE DAMAGES.—The term ‘‘punitive 

12 damages’’ means damages awarded, for the purpose 

13 of punishment or deterrence, and not solely for com14 pensatory purposes, against a health care provider 

15 who delivers obstetrical or gynecological services or 

16 a health care institution. Punitive damages are nei17 ther economic nor noneconomic damages. 

18 (17) RECOVERY.—The term ‘‘recovery’’ means 

19 the net sum recovered after deducting any disburse20 ments or costs incurred in connection with prosecu21 tion or settlement of the claim, including all costs 

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

23 incurred by the plaintiff and the attorneys’ office 

24 overhead costs or charges for legal services are not 

25 deductible disbursements or costs for such purpose. 


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1 (18) STATE.—The term ‘‘State’’ means each of 

2 the several States, the District of Columbia, the 

3 Commonwealth of Puerto Rico, the Virgin Islands, 

4 Guam, American Samoa, the Northern Mariana Is5 lands, the Trust Territory of the Pacific Islands, and 

6 any other territory or possession of the United 

7 States, or any political subdivision thereof. 

8 SEC. 4. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

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

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

11 care lawsuit shall be 3 years after the date of manifesta12 tion of injury or 1 year after the claimant discovers, or 

13 through the use of reasonable diligence should have discov14 ered, the injury, whichever occurs first. 

15 (b) GENERAL EXCEPTION.—The time for the com16 mencement of a health care lawsuit shall not exceed 3 

17 years after the date of manifestation of injury unless the 

18 tolling of time was delayed as a result of— 

19 (1) fraud; 

20 (2) intentional concealment; or 

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

22 therapeutic or diagnostic purpose or effect, in the 

23 person of the injured person. 

24 (c) MINORS.—An action by a minor shall be com25 menced within 3 years from the date of the alleged maniVerDate Aug 31 2005 00:13 May 05, 2006 Jkt 049196 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S23.PCS S23

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1 festation of injury except that if such minor is under the 

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

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

4 eighth birthday of the minor, whichever provides a longer 

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

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

7 care provider or health care institution have committed 

8 fraud or collusion in the failure to bring an action on be9 half of the injured minor. 

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

11 State court determines (whether by motion of the parties 

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

13 a violation of Rule 11 of the Federal Rules of Civil Proce14 dure (or a similar violation of applicable State court rules) 

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

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

17 pro se litigants that have violated Rule 11 or are respon18 sible for the violation, an appropriate sanction, which shall 

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

20 reasonable expenses incurred as a direct result of the filing 

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

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

23 Such sanction shall be sufficient to deter repetition of such 

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1 ated, and to compensate the party or parties injured by 

2 such conduct. 

3 SEC. 5. COMPENSATING PATIENT INJURY. 

4 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

5 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 

6 health care lawsuit, nothing in this Act shall limit the re7 covery by a claimant of the full amount of the available 

8 economic damages, notwithstanding the limitation con9 tained in subsection (b). 

10 (b) ADDITIONAL NONECONOMIC DAMAGES.— 

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

12 care lawsuit where final judgment is rendered 

13 against a health care provider, the amount of non14 economic damages recovered from the provider, if 

15 otherwise available under applicable Federal or State 

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

17 number of parties other than a health care institu18 tion against whom the action is brought or the num19 ber of separate claims or actions brought with re20 spect to the same occurrence. 

21 (2) HEALTH CARE INSTITUTIONS.— 

22 (A) SINGLE INSTITUTION.—In any health 

23 care lawsuit where final judgment is rendered 

24 against a single health care institution, the 

25 amount of noneconomic damages recovered 


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1 from the institution, if otherwise available 

2 under applicable Federal or State law, may be 

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

4 of parties against whom the action is brought 

5 or the number of separate claims or actions 

6 brought with respect to the same occurrence. 

7 (B) MULTIPLE INSTITUTIONS.—In any 

8 health care lawsuit where final judgment is ren9 dered against more than one health care insti10 tution, the amount of noneconomic damages re11 covered from each institution, if otherwise avail12 able under applicable Federal or State law, may 

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

14 number of parties against whom the action is 

15 brought or the number of separate claims or ac16 tions brought with respect to the same occur17 rence, except that the total amount recovered 

18 from all such institutions in such lawsuit shall 

19 not exceed $500,000. 

20 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

21 DAMAGES.—In any health care lawsuit— 

22 (1) an award for future noneconomic damages 

23 shall not be discounted to present value; 


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

2 maximum award for noneconomic damages under 

3 subsection (b); 

4 (3) an award for noneconomic damages in ex5 cess of the limitations provided for in subsection (b) 

6 shall be reduced either before the entry of judgment, 

7 or by amendment of the judgment after entry of 

8 judgment, and such reduction shall be made before 

9 accounting for any other reduction in damages re10 quired by law; and 

11 (4) if separate awards are rendered for past 

12 and future noneconomic damages and the combined 

13 awards exceed the limitations provided for in sub14 section (b), the future noneconomic damages shall be 

15 reduced first. 

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

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

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

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

20 damages allocated to such party in direct proportion to 

21 such party’s percentage of responsibility. A separate judg22 ment shall be rendered against each such party for the 

23 amount allocated to such party. For purposes of this sec24 tion, the trier of fact shall determine the proportion of 

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


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1 SEC. 6. MAXIMIZING PATIENT RECOVERY. 

2 (a) COURT SUPERVISION OF SHARE OF DAMAGES

3 ACTUALLY PAID TO CLAIMANTS.— 

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

5 the court shall supervise the arrangements for pay6 ment of damages to protect against conflicts of in7 terest that may have the effect of reducing the 

8 amount of damages awarded that are actually paid 

9 to claimants. 

10 (2) CONTINGENCY FEES.— 

11 (A) IN GENERAL.—In any health care law12 suit in which the attorney for a party claims a 

13 financial stake in the outcome by virtue of a 

14 contingent fee, the court shall have the power 

15 to restrict the payment of a claimant’s damage 

16 recovery to such attorney, and to redirect such 

17 damages to the claimant based upon the inter18 ests of justice and principles of equity. 

19 (B) LIMITATION.—The total of all contin20 gent fees for representing all claimants in a 

21 health care lawsuit shall not exceed the fol22 lowing limits: 

23 (i) 40 percent of the first $50,000 re24 covered by the claimant(s). 

(ii) 331 25 ⁄3 percent of the next $50,000 

26 recovered by the claimant(s). 


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

2 recovered by the claimant(s). 

3 (iv) 15 percent of any amount by 

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

5 excess of $600,000. 

6 (b) APPLICABILITY.— 

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

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

9 settlement, mediation, arbitration, or any other form 

10 of alternative dispute resolution. 

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

12 a minor or incompetent person, a court retains the 

13 authority to authorize or approve a fee that is less 

14 than the maximum permitted under this section. 

15 (c) EXPERT WITNESSES.— 

16 (1) REQUIREMENT.—No individual shall be 

17 qualified to testify as an expert witness concerning 

18 issues of negligence in any health care lawsuit 

19 against a defendant unless such individual— 

20 (A) except as required under paragraph 

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

22 (i) is appropriately credentialed or li23 censed in 1 or more States to deliver 

24 health care services; and 


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1 (ii) typically treats the diagnosis or 

2 condition or provides the type of treatment 

3 under review; and 

4 (B) can demonstrate by competent evi5 dence that, as a result of training, education, 

6 knowledge, and experience in the evaluation, di7 agnosis, and treatment of the disease or injury 

8 which is the subject matter of the lawsuit 

9 against the defendant, the individual was sub10 stantially familiar with applicable standards of 

11 care and practice as they relate to the act or 

12 omission which is the subject of the lawsuit on 

13 the date of the incident. 

14 (2) PHYSICIAN REVIEW.—In a health care law15 suit, if the claim of the plaintiff involved treatment 

16 that is recommended or provided by a physician 

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

18 qualified to be an expert witness under this sub19 section with respect to issues of negligence con20 cerning such treatment unless such individual is a 

21 physician. 

22 (3) SPECIALTIES AND SUBSPECIALTIES.—With 

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

24 court shall not permit an expert in one medical spe25 cialty or subspecialty to testify against a defendant 


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1 in another medical specialty or subspecialty unless, 

2 in addition to a showing of substantial familiarity in 

3 accordance with paragraph (1)(B), there is a show4 ing that the standards of care and practice in the 

5 two specialty or subspecialty fields are similar. 

6 (4) LIMITATION.—The limitations in this sub7 section shall not apply to expert witnesses testifying 

8 as to the degree or permanency of medical or phys9 ical impairment. 

10 SEC. 7. ADDITIONAL HEALTH BENEFITS. 

11 (a) IN GENERAL.—The amount of any damages re12 ceived by a claimant in any health care lawsuit shall be 

13 reduced by the court by the amount of any collateral 

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

15 insurance premiums or other payments made by the claim16 ant (or by the spouse, parent, child, or legal guardian of 

17 the claimant) to obtain or secure such benefits. 

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

19 payor of collateral source benefits has a right of recovery 

20 by reimbursement or subrogation and such right is per21 mitted under Federal or State law, subsection (a) shall 

22 not apply. 

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

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

25 by a fact finder. 


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1 SEC. 8. PUNITIVE DAMAGES. 

2 (a) PUNITIVE DAMAGES PERMITTED.— 

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

4 otherwise available under applicable State or Federal 

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

6 lawsuit only if it is proven by clear and convincing 

7 evidence that such person acted with malicious in8 tent to injure the claimant, or that such person de9 liberately failed to avoid unnecessary injury that 

10 such person knew the claimant was substantially 

11 certain to suffer. 

12 (2) FILING OF LAWSUIT.—No demand for puni13 tive damages shall be included in a health care law14 suit as initially filed. A court may allow a claimant 

15 to file an amended pleading for punitive damages 

16 only upon a motion by the claimant and after a find17 ing by the court, upon review of supporting and op18 posing affidavits or after a hearing, after weighing 

19 the evidence, that the claimant has established by a 

20 substantial probability that the claimant will prevail 

21 on the claim for punitive damages. 

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

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

24 shall consider in a separate proceeding— 

25 (A) whether punitive damages are to be 

26 awarded and the amount of such award; and 


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1 (B) the amount of punitive damages fol2 lowing a determination of punitive liability. 

3 If a separate proceeding is requested, evidence rel4 evant only to the claim for punitive damages, as de5 termined by applicable State law, shall be inadmis6 sible in any proceeding to determine whether com7 pensatory damages are to be awarded. 

8 (4) LIMITATION WHERE NO COMPENSATORY

9 DAMAGES ARE AWARDED.—In any health care law10 suit where no judgment for compensatory damages 

11 is rendered against a person, no punitive damages 

12 may be awarded with respect to the claim in such 

13 lawsuit against such person. 

14 (b) DETERMINING AMOUNT OF PUNITIVE DAM15 AGES.— 

16 (1) FACTORS CONSIDERED.—In determining 

17 the amount of punitive damages under this section, 

18 the trier of fact shall consider only the following: 

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

20 conduct of such party; 

21 (B) the duration of the conduct or any 

22 concealment of it by such party; 

23 (C) the profitability of the conduct to such 

24 party; 


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1 (D) the number of products sold or med2 ical procedures rendered for compensation, as 

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

4 causing the harm complained of by the claim5 ant; 

6 (E) any criminal penalties imposed on such 

7 party, as a result of the conduct complained of 

8 by the claimant; and 

9 (F) the amount of any civil fines assessed 

10 against such party as a result of the conduct 

11 complained of by the claimant. 

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

13 damages awarded in a health care lawsuit may not 

14 exceed an amount equal to two times the amount of 

15 economic damages awarded in the lawsuit or 

16 $250,000, whichever is greater. The jury shall not 

17 be informed of the limitation under the preceding 

18 sentence. 

19 (c) LIABILITY OF HEALTH CARE PROVIDERS.— 

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

21 prescribes, or who dispenses pursuant to a prescrip22 tion, a drug, biological product, or medical device 

23 approved by the Food and Drug Administration, for 

24 an approved indication of the drug, biological prod25 uct, or medical device, shall not be named as a party 


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1 to a product liability lawsuit invoking such drug, bi2 ological product, or medical device and shall not be 

3 liable to a claimant in a class action lawsuit against 

4 the manufacturer, distributor, or product seller of 

5 such drug, biological product, or medical device. 

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

7 product’’ means a drug or device intended for hu8 mans. The terms ‘‘drug’’ and ‘‘device’’ have the 

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

10 201(h) of the Federal Food, Drug and Cosmetic Act 

11 (21 U.S.C. 321), respectively, including any compo12 nent or raw material used therein, but excluding 

13 health care services. 

14 SEC. 9. AUTHORIZATION OF PAYMENT OF FUTURE DAM15 AGES TO CLAIMANTS IN HEALTH CARE LAW16 SUITS. 

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

18 award of future damages, without reduction to present 

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

20 party with sufficient insurance or other assets to fund a 

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

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

23 the future damages be paid by periodic payments. In any 

24 health care lawsuit, the court may be guided by the Uni25 form Periodic Payment of Judgments Act promulgated by 


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1 the National Conference of Commissioners on Uniform 

2 State Laws. 

3 (b) APPLICABILITY.—This section applies to all ac4 tions which have not been first set for trial or retrial be5 fore the effective date of this Act. 

6 SEC. 10. EFFECT ON OTHER LAWS. 

7 (a) GENERAL VACCINE INJURY.— 

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

9 of the Public Health Service Act establishes a Fed10 eral rule of law applicable to a civil action brought 

11 for a vaccine-related injury or death— 

12 (A) this Act shall not affect the application 

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

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

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

16 shall not apply to such action. 

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

18 action brought for a vaccine-related injury or death 

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

20 the Public Health Service Act does not apply, then 

21 this Act or otherwise applicable law (as determined 

22 under this Act) will apply to such aspect of such ac23 tion. 

24 (b) SMALLPOX VACCINE INJURY.— 


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

2 title II of the Public Health Service Act establishes 

3 a Federal rule of law applicable to a civil action 

4 brought for a smallpox vaccine-related injury or 

5 death— 

6 (A) this Act shall not affect the application 

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

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

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

10 shall not apply to such action. 

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

12 action brought for a smallpox vaccine-related injury 

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

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

15 not apply, then this Act or otherwise applicable law 

16 (as determined under this Act) will apply to such as17 pect of such action. 

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

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

20 any defense available, or any limitation on liability that 

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

22 under any other provision of Federal law. 


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

2 RIGHTS. 

3 (a) HEALTH CARE LAWSUITS.—The provisions gov4 erning health care lawsuits set forth in this Act shall pre5 empt, subject to subsections (b) and (c), State law to the 

6 extent that State law prevents the application of any pro7 visions of law established by or under this Act. The provi8 sions governing health care lawsuits set forth in this Act 

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

10 the extent that such chapter— 

11 (1) provides for a greater amount of damages 

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

13 care lawsuit may be commenced, or a reduced appli14 cability or scope of periodic payment of future dam15 ages, than provided in this Act; or 

16 (2) prohibits the introduction of evidence re17 garding collateral source benefits. 

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

19 provision of this Act shall be construed to preempt any 

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

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

22 monetary amount of compensatory or punitive damages 

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

24 in a health care lawsuit, regardless of whether such mone25 tary amount is greater or lesser than is provided for under 

26 this Act, notwithstanding section 5(a). 


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

2 LAWS.— 

3 (1) IN GENERAL.—Any issue that is not gov4 erned by a provision of law established by or under 

5 this Act (including the State standards of neg6 ligence) shall be governed by otherwise applicable 

7 Federal or State law. 

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

9 Act shall be construed to— 

10 (A) preempt or supersede any Federal or 

11 State law that imposes greater procedural or 

12 substantive protections for a health care pro13 vider or health care institution from liability, 

14 loss, or damages than those provided by this 

15 Act; 

16 (B) preempt or supercede any State law 

17 that permits and provides for the enforcement 

18 of any arbitration agreement related to a health 

19 care liability claim whether enacted prior to or 

20 after the date of enactment of this Act; 

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

22 otherwise available under Federal or State law; 

23 or 

24 (D) affect the scope of preemption of any 

25 other Federal law. 


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1 SEC. 12. APPLICABILITY; EFFECTIVE DATE. 

2 This Act shall apply to any health care lawsuit 

3 brought in a Federal or State court, or subject to an alter4 native dispute resolution system, that is initiated on or 

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

6 any health care lawsuit arising from an injury occurring 

7 prior to the date of enactment of this Act shall be gov8 erned by the applicable statute of limitations provisions 

9 in effect at the time the injury occurred. 


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jcorcoran on PROD1PC62 with CFR
Calendar No. 423 

109TH CONGRESS 

2D SESSION S. 23 

A BILL 

To improve women’s access to health care services 

services. on the delivery of obstetrical and gynecological 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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