II 

109TH CONGRESS 

1ST SESSION S. 354 

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 

FEBRUARY 10, 2005 

Mr. ENSIGN (for himself, Mr. GREGG, Mr. THOMAS, Mr. INHOFE, and Mr. 

KYL) introduced the following bill; which was read twice and referred to 

the Committee on Health, Education, Labor, and Pensions 

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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Help Efficient, Acces5 sible, Low-Cost, Timely Healthcare Act of 2005’’ or the 

6 ‘‘HEALTH Act of 2005’’. 

7 SEC. 2. FINDINGS AND PURPOSE. 

8 (a) FINDINGS.— 
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1 (1) EFFECT ON HEALTH CARE ACCESS AND

2 COSTS.—Congress finds that our current civil justice 

3 system is adversely affecting patient access to health 

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

5 health care, in that the health care liability system 

6 is a costly and ineffective mechanism for resolving 

7 claims of health care liability and compensating in8 jured patients, and is a deterrent to the sharing of 

9 information among health care professionals which 

10 impedes efforts to improve patient safety and quality 

11 of care. 

12 (2) EFFECT ON INTERSTATE COMMERCE.—

13 Congress finds that the health care and insurance 

14 industries are industries affecting interstate com15 merce and the health care liability litigation systems 

16 existing throughout the United States are activities 

17 that affect interstate commerce by contributing to 

18 the high costs of health care and premiums for 

19 health care liability insurance purchased by health 

20 care system providers. 

21 (3) EFFECT ON FEDERAL SPENDING.—Con22 gress finds that the health care liability litigation 

23 systems existing throughout the United States have 

24 a significant effect on the amount, distribution, and 

25 use of Federal funds because of— 
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1 (A) the large number of individuals who 

2 receive health care benefits under programs op3 erated or financed by the Federal Government; 

4 (B) the large number of individuals who 

5 benefit because of the exclusion from Federal 

6 taxes of the amounts spent to provide them 

7 with health insurance benefits; and 

8 (C) the large number of health care pro9 viders who provide items or services for which 

10 the Federal Government makes payments. 

11 (b) PURPOSE.—It is the purpose of this Act to imple12 ment reasonable, comprehensive, and effective health care 

13 liability reforms designed to— 

14 (1) improve the availability of health care serv15 ices in cases in which health care liability actions 

16 have been shown to be a factor in the decreased 

17 availability of services; 

18 (2) reduce the incidence of ‘‘defensive medi19 cine’’ and lower the cost of health care liability in20 surance, all of which contribute to the escalation of 

21 health care costs; 

22 (3) ensure that persons with meritorious health 

23 care injury claims receive fair and adequate com24 pensation, including reasonable noneconomic dam25 ages; 
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1 (4) improve the fairness and cost-effectiveness 

2 of our current health care liability system to resolve 

3 disputes over, and provide compensation for, health 

4 care liability by reducing uncertainty in the amount 

5 of compensation provided to injured individuals; and 

6 (5) provide an increased sharing of information 

7 in the health care system which will reduce unin8 tended injury and improve patient care. 

9 SEC. 3. DEFINITIONS. 

10 In this Act: 

11 (1) ALTERNATIVE DISPUTE RESOLUTION SYS12 TEM; ADR.—The term ‘‘alternative dispute resolution 

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

14 for the resolution of health care lawsuits in a man15 ner other than through a civil action brought in a 

16 State or Federal court. 

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

18 any person who brings a health care lawsuit, includ19 ing a person who asserts or claims a right to legal 

20 or equitable contribution, indemnity or subrogation, 

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

22 and any person on whose behalf such a claim is as23 serted or such an action is brought, whether de24 ceased, incompetent, or a minor. 
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1 (3) COLLATERAL SOURCE BENEFITS.—The 

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

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

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

5 or other benefit provided or reasonably likely to be 

6 provided in the future to or on behalf of the claim7 ant, as a result of the injury or wrongful death, pur8 suant to— 

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

10 income-disability, accident, or workers’ com11 pensation law; 

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

13 or accident insurance that provides health bene14 fits or income-disability coverage; 

15 (C) any contract or agreement of any 

16 group, organization, partnership, or corporation 

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

18 medical, hospital, dental, or income disability 

19 benefits; and 

20 (D) any other publicly or privately funded 

21 program. 

22 (4) COMPENSATORY DAMAGES.—The term 

23 ‘‘compensatory damages’’ means objectively 

24 verifiable monetary losses incurred as a result of the 

25 provision of, use of, or payment for (or failure to 
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1 provide, use, or pay for) health care services or med2 ical products, such as past and future medical ex3 penses, loss of past and future earnings, cost of ob4 taining domestic services, loss of employment, and 

5 loss of business or employment opportunities, dam6 ages for physical and emotional pain, suffering, in7 convenience, physical impairment, mental anguish, 

8 disfigurement, loss of enjoyment of life, loss of soci9 ety and companionship, loss of consortium (other 

10 than loss of domestic service), hedonic damages, in11 jury to reputation, and all other nonpecuniary losses 

12 of any kind or nature. Such term includes economic 

13 damages and noneconomic damages, as such terms 

14 are defined in this section. 

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

16 fee’’ includes all compensation to any person or per17 sons which is payable only if a recovery is effected 

18 on behalf of one or more claimants. 

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

20 damages’’ means objectively verifiable monetary 

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

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

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

24 past and future medical expenses, loss of past and 

25 future earnings, cost of obtaining domestic services, 
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1 loss of employment, and loss of business or employ2 ment opportunities. 

3 (7) HEALTH CARE LAWSUIT.—The term 

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

5 claim concerning the provision of health care goods 

6 or services affecting interstate commerce, or any 

7 health care liability action concerning the provision 

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

9 services affecting interstate commerce, brought in a 

10 State or Federal court or pursuant to an alternative 

11 dispute resolution system, against a health care pro12 vider, a health care organization, or the manufac13 turer, distributor, supplier, marketer, promoter, or 

14 seller of a medical product, regardless of the theory 

15 of liability on which the claim is based, or the num16 ber of claimants, plaintiffs, defendants, or other par17 ties, or the number of claims or causes of action, in 

18 which the claimant alleges a health care liability 

19 claim. 

20 (8) HEALTH CARE LIABILITY ACTION.—The 

21 term ‘‘health care liability action’’ means a civil ac22 tion brought in a State or Federal Court or pursu23 ant to an alternative dispute resolution system, 

24 against a health care provider, a health care organi25 zation, or the manufacturer, distributor, supplier, 
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1 marketer, promoter, or seller of a medical product, 

2 regardless of the theory of liability on which the 

3 claim is based, or the number of plaintiffs, defend4 ants, or other parties, or the number of causes of ac5 tion, in which the claimant alleges a health care li6 ability claim. 

7 (9) HEALTH CARE LIABILITY CLAIM.—The 

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

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

10 against a health care provider, health care organiza11 tion, or the manufacturer, distributor, supplier, mar12 keter, promoter, or seller of a medical product, in13 cluding third-party claims, cross-claims, counter14 claims, or contribution claims, which are based upon 

15 the provision of, use of, or payment for (or the fail16 ure to provide, use, or pay for) health care services 

17 or medical products, regardless of the theory of li18 ability on which the claim is based, or the number 

19 of plaintiffs, defendants, or other parties, or the 

20 number of causes of action. 

21 (10) HEALTH CARE ORGANIZATION.—The 

22 term ‘‘health care organization’’ means any person 

23 or entity which is obligated to provide or pay for 

24 health benefits under any health plan, including any 

25 person or entity acting under a contract or arrange-
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1 ment with a health care organization to provide or 

2 administer any health benefit. 

3 (11) HEALTH CARE PROVIDER.—The term 

4 ‘‘health care provider’’ means any person or entity 

5 required by State or Federal laws or regulations to 

6 be licensed, registered, or certified to provide health 

7 care services, and being either so licensed, reg8 istered, or certified, or exempted from such require9 ment by other statute or regulation. 

10 (12) HEALTH CARE GOODS OR SERVICES.—

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

12 goods or services provided by a health care organiza13 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 (13) MALICIOUS INTENT TO INJURE.—The 

19 term ‘‘malicious intent to injure’’ means inten20 tionally causing or attempting to cause physical in21 jury other than providing health care goods or serv22 ices. 

23 (14) MEDICAL PRODUCT.—The term ‘‘medical 

24 product’’ means a drug or device intended for hu25 mans. The terms ‘‘drug’’ and ‘‘device’’ have the 
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1 meanings given such terms in sections 201(g)(1) and 

2 201(h) of the Federal Food, Drug and Cosmetic Act 

3 (21 U.S.C. 321), respectively, including any compo4 nent or raw material used therein, but excluding 

5 health care services. 

6 (15) NONECONOMIC DAMAGES.—The term 

7 ‘‘noneconomic damages’’ means damages for phys8 ical and emotional pain, suffering, inconvenience, 

9 physical impairment, mental anguish, disfigurement, 

10 loss of enjoyment of life, loss of society and compan11 ionship, loss of consortium (other than loss of do12 mestic service), hedonic damages, injury to reputa13 tion, and all other nonpecuniary losses of any kind 

14 or nature. 

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

16 damages’’ means damages awarded, for the purpose 

17 of punishment or deterrence, and not solely for com18 pensatory purposes, against a health care provider, 

19 health care organization, or a manufacturer, dis20 tributor, or supplier of a medical product. Punitive 

21 damages are neither economic nor noneconomic 

22 damages. 

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

24 the net sum recovered after deducting any disburse25 ments or costs incurred in connection with prosecu-
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1 tion or settlement of the claim, including all costs 

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

3 incurred by the plaintiff and the attorneys’ office 

4 overhead costs or charges for legal services are not 

5 deductible disbursements or costs for such purpose. 

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

7 the several States, the District of Columbia, the 

8 Commonwealth of Puerto Rico, the Virgin Islands, 

9 Guam, American Samoa, the Northern Mariana Is10 lands, the Trust Territory of the Pacific Islands, and 

11 any other territory or possession of the United 

12 States, or any political subdivision thereof. 

13 SEC. 4. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

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

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

16 care lawsuit shall be 3 years after the date of manifesta17 tion of injury or 1 year after the claimant discovers, or 

18 through the use of reasonable diligence should have discov19 ered, the injury, whichever occurs first. 

20 (b) GENERAL EXCEPTION.—The time for the com21 mencement of a health care lawsuit shall not exceed 3 

22 years after the date of manifestation of injury unless the 

23 tolling of time was delayed as a result of— 

24 (1) fraud; 

25 (2) intentional concealment; or 
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1 (3) the presence of a foreign body, which has no 

2 therapeutic or diagnostic purpose or effect, in the 

3 person of the injured person. 

4 (c) MINORS.—An action by a minor shall be com5 menced within 3 years from the date of the alleged mani6 festation of injury except that if such minor is under the 

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

8 3 years of the manifestation of injury, or prior to the 

9 eighth birthday of the minor, whichever provides a longer 

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

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

12 care provider or health care organization have committed 

13 fraud or collusion in the failure to bring an action on be14 half of the injured minor. 

15 SEC. 5. COMPENSATING PATIENT INJURY. 

16 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

17 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In 

18 any health care lawsuit, nothing in this Act shall limit the 

19 recovery by a claimant of the full amount of the available 

20 economic damages, notwithstanding the limitation con21 tained in subsection (b). 

22 (b) ADDITIONAL NONECONOMIC DAMAGES.—In any 

23 health care lawsuit, the amount of noneconomic damages 

24 recovered, if otherwise available under applicable Federal 

25 or State law, may be as much as $250,000, regardless of 
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1 the number of parties against whom the action is brought 

2 or the number of separate claims or actions brought with 

3 respect to the same occurrence. 

4 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

5 DAMAGES.—In any health care lawsuit— 

6 (1) an award for future noneconomic damages 

7 shall not be discounted to present value; 

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

9 maximum award for noneconomic damages under 

10 subsection (b); 

11 (3) an award for noneconomic damages in ex12 cess of $250,000 shall be reduced either before the 

13 entry of judgment, or by amendment of the judg14 ment after entry of judgment, and such reduction 

15 shall be made before accounting for any other reduc16 tion in damages required by law; and 

17 (4) if separate awards are rendered for past 

18 and future noneconomic damages and the combined 

19 awards exceed $250,000, the future noneconomic 

20 damages shall be reduced first. 

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

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

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

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

25 damages allocated to such party in direct proportion to 
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1 such party’s percentage of responsibility. A separate judg2 ment shall be rendered against each such party for the 

3 amount allocated to such party. For purposes of this sec4 tion, the trier of fact shall determine the proportion of 

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

6 SEC. 6. MAXIMIZING PATIENT RECOVERY. 

7 (a) COURT SUPERVISION OF SHARE OF DAMAGES

8 ACTUALLY PAID TO CLAIMANTS.— 

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

10 the court shall supervise the arrangements for pay11 ment of damages to protect against conflicts of in12 terest that may have the effect of reducing the 

13 amount of damages awarded that are actually paid 

14 to claimants. 

15 (2) CONTINGENCY FEES.— 

16 (A) IN GENERAL.—In any health care law17 suit in which the attorney for a party claims a 

18 financial stake in the outcome by virtue of a 

19 contingent fee, the court shall have the power 

20 to restrict the payment of a claimant’s damage 

21 recovery to such attorney, and to redirect such 

22 damages to the claimant based upon the inter23 ests of justice and principles of equity. 

24 (B) LIMITATION.—The total of all contin25 gent fees for representing all claimants in a 
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1 health care lawsuit shall not exceed the fol2 lowing limits: 

3 (i) 40 percent of the first $50,000 re4 covered by the claimant(s). 

(ii) 331 5 ⁄3 percent of the next $50,000 

6 recovered by the claimant(s). 

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

8 recovered by the claimant(s). 

9 (iv) 15 percent of any amount by 

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

11 excess of $600,000. 

12 (b) APPLICABILITY.— 

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

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

15 settlement, mediation, arbitration, or any other form 

16 of alternative dispute resolution. 

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

18 a minor or incompetent person, a court retains the 

19 authority to authorize or approve a fee that is less 

20 than the maximum permitted under this section. 

21 (c) EXPERT WITNESSES.— 

22 (1) REQUIREMENT.—No individual shall be 

23 qualified to testify as an expert witness concerning 

24 issues of negligence in any health care lawsuit 

25 against a defendant unless such individual— 
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1 (A) except as required under paragraph 

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

3 (i) is appropriately credentialed or li4 censed in 1 or more States to deliver 

5 health care services; and 

6 (ii) typically treats the diagnosis or 

7 condition or provides the type of treatment 

8 under review; and 

9 (B) can demonstrate by competent evi10 dence that, as a result of training, education, 

11 knowledge, and experience in the evaluation, di12 agnosis, and treatment of the disease or injury 

13 which is the subject matter of the lawsuit 

14 against the defendant, the individual was sub15 stantially familiar with applicable standards of 

16 care and practice as they relate to the act or 

17 omission which is the subject of the lawsuit on 

18 the date of the incident. 

19 (2) PHYSICIAN REVIEW.—In a health care law20 suit, if the claim of the plaintiff involved treatment 

21 that is recommended or provided by a physician 

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

23 qualified to be an expert witness under this sub24 section with respect to issues of negligence con-
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1 cerning such treatment unless such individual is a 

2 physician. 

3 (3) SPECIALTIES AND SUBSPECIALTIES.—With 

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

5 court shall not permit an expert in one medical spe6 cialty or subspecialty to testify against a defendant 

7 in another medical specialty or subspecialty unless, 

8 in addition to a showing of substantial familiarity in 

9 accordance with paragraph (1)(B), there is a show10 ing that the standards of care and practice in the 

11 two specialty or subspecialty fields are similar. 

12 (4) LIMITATION.—The limitations in this sub13 section shall not apply to expert witnesses testifying 

14 as to the degree or permanency of medical or phys15 ical impairment. 

16 SEC. 7. ADDITIONAL HEALTH BENEFITS. 

17 (a) IN GENERAL.—The amount of any damages re18 ceived by a claimant in any health care lawsuit shall be 

19 reduced by the court by the amount of any collateral 

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

21 insurance premiums or other payments made by the claim22 ant (or by the spouse, parent, child, or legal guardian of 

23 the claimant) to obtain or secure such benefits. 

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

25 payor of collateral source benefits has a right of recovery 
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1 by reimbursement or subrogation and such right is per2 mitted under Federal or State law, subsection (a) shall 

3 not apply. 

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

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

6 by a fact finder. 

7 SEC. 8. PUNITIVE DAMAGES. 

8 (a) PUNITIVE DAMAGES PERMITTED.— 

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

10 otherwise available under applicable State or Federal 

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

12 lawsuit only if it is proven by clear and convincing 

13 evidence that such person acted with malicious in14 tent to injure the claimant, or that such person de15 liberately failed to avoid unnecessary injury that 

16 such person knew the claimant was substantially 

17 certain to suffer. 

18 (2) FILING OF LAWSUIT.—No demand for puni19 tive damages shall be included in a health care law20 suit as initially filed. A court may allow a claimant 

21 to file an amended pleading for punitive damages 

22 only upon a motion by the claimant and after a find23 ing by the court, upon review of supporting and op24 posing affidavits or after a hearing, after weighing 

25 the evidence, that the claimant has established by a 
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1 substantial probability that the claimant will prevail 

2 on the claim for punitive damages. 

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

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

5 shall consider in a separate proceeding— 

6 (A) whether punitive damages are to be 

7 awarded and the amount of such award; and 

8 (B) the amount of punitive damages fol9 lowing a determination of punitive liability. 

10 If a separate proceeding is requested, evidence rel11 evant only to the claim for punitive damages, as de12 termined by applicable State law, shall be inadmis13 sible in any proceeding to determine whether com14 pensatory damages are to be awarded. 

15 (4) LIMITATION WHERE NO COMPENSATORY

16 DAMAGES ARE AWARDED.—In any health care law17 suit where no judgment for compensatory damages 

18 is rendered against a person, no punitive damages 

19 may be awarded with respect to the claim in such 

20 lawsuit against such person. 

21 (b) DETERMINING AMOUNT OF PUNITIVE DAM22 AGES.— 

23 (1) FACTORS CONSIDERED.—In determining 

24 the amount of punitive damages under this section, 

25 the trier of fact shall consider only the following: 
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1 (A) the severity of the harm caused by the 

2 conduct of such party; 

3 (B) the duration of the conduct or any 

4 concealment of it by such party; 

5 (C) the profitability of the conduct to such 

6 party; 

7 (D) the number of products sold or med8 ical procedures rendered for compensation, as 

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

10 causing the harm complained of by the claim11 ant; 

12 (E) any criminal penalties imposed on such 

13 party, as a result of the conduct complained of 

14 by the claimant; and 

15 (F) the amount of any civil fines assessed 

16 against such party as a result of the conduct 

17 complained of by the claimant. 

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

19 damages awarded in a health care lawsuit may not 

20 exceed an amount equal to two times the amount of 

21 economic damages awarded in the lawsuit or 

22 $250,000, whichever is greater. The jury shall not 

23 be informed of the limitation under the preceding 

24 sentence. 
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1 (c) LIABILITY OF HEALTH CARE PROVIDERS.—A 

2 health care provider who prescribes, or who dispenses pur3 suant to a prescription, a drug or device (including blood 

4 products) approved by the Food and Drug Administration 

5 shall not be named as a party to a product liability lawsuit 

6 invoking such drug or device and shall not be liable to 

7 a claimant in a class action lawsuit against the manufac8 turer, distributor, or product seller of such drug or device. 

9 SEC. 9. AUTHORIZATION OF PAYMENT OF FUTURE DAM10 AGES TO CLAIMANTS IN HEALTH CARE LAW11 SUITS. 

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

13 award of future damages, without reduction to present 

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

15 party with sufficient insurance or other assets to fund a 

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

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

18 the future damages be paid by periodic payments in ac19 cordance with the Uniform Periodic Payment of Judg20 ments Act promulgated by the National Conference of 

21 Commissioners on Uniform State Laws. 

22 (b) APPLICABILITY.—This section applies to all ac23 tions which have not been first set for trial or retrial be24 fore the effective date of this Act. 
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1 SEC. 10. EFFECT ON OTHER LAWS. 

2 (a) VACCINE INJURY.— 

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

4 of the Public Health Service Act establishes a Fed5 eral rule of law applicable to a civil action brought 

6 for a vaccine-related injury or death— 

7 (A) this Act shall not affect the application 

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

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

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

11 shall not apply to such action. 

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

13 action brought for a vaccine-related injury or death 

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

15 the Public Health Service Act does not apply, then 

16 this Act or otherwise applicable law (as determined 

17 under this Act) will apply to such aspect of such ac18 tion. 

19 (b) OTHER FEDERAL LAW.—Except as provided in 

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

21 any defense available to a defendant in a health care law22 suit or action under any other provision of Federal law. 

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

24 RIGHTS. 

25 (a) HEALTH CARE LAWSUITS.—The provisions gov26 erning health care lawsuits set forth in this Act shall pre-
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1 empt, subject to subsections (b) and (c), State law to the 

2 extent that State law prevents the application of any pro3 visions of law established by or under this Act. The provi4 sions governing health care lawsuits set forth in this Act 

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

6 the extent that such chapter— 

7 (1) provides for a greater amount of damages 

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

9 care lawsuit may be commenced, or a reduced appli10 cability or scope of periodic payment of future dam11 ages, than provided in this Act; or 

12 (2) prohibits the introduction of evidence re13 garding collateral source benefits. 

14 (b) PREEMPTION OF CERTAIN STATE LAWS.—The 

15 provisions of this Act shall preempt any constitutional pro16 vision, statute, or rule of State law, whether enacted prior 

17 to, on, or after the date of enactment of this Act, that— 

18 (1) prohibits the application of any limitation 

19 on the amount of compensatory, punitive, or total 

20 damages in a health care lawsuit; or 

21 (2) provides for a greater amount of compen22 satory, punitive, or total damages in a health care 

23 lawsuit than those provided for under this Act. 

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

25 LAWS.— 
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1 (1) IN GENERAL.—Any issue that is not gov2 erned by a provision of law established by or under 

3 this Act (including the State standards of neg4 ligence) shall be governed by otherwise applicable 

5 Federal or State law. 

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

7 Act shall be construed to— 

8 (A) preempt or supersede any Federal or 

9 State law that imposes greater procedural or 

10 substantive protections (such as a shorter stat11 ute of limitations) for a health care provider, 

12 health care organization, or the manufacturer, 

13 distributor, supplier, marketer, promoter, or 

14 seller of a medical product from liability, loss, 

15 or damages than those provided by this Act; 

16 (B) create a cause of action that is not 

17 otherwise available under Federal or State law; 

18 or 

19 (C) affect the scope of preemption of any 

20 other Federal law. 

21 SEC. 12. APPLICABILITY; EFFECTIVE DATE. 

22 This Act shall apply to any health care lawsuit 

23 brought in a Federal or State court, or subject to an alter24 native dispute resolution system, that is initiated on or 

25 after the date of the enactment of this Act, except that 
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1 any health care lawsuit arising from an injury occurring 

2 prior to the date of enactment of this Act shall be gov3 erned by the applicable statute of limitations provisions 

4 in effect at the time the injury occurred.

Æ