69–008 

115TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 115–179 

PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 1215) 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 

JUNE 13, 2017.—Referred to the House Calendar and ordered to be printed 

Mr. BURGESS, from the Committee on Rules, 

submitted the following 

R E P O R T 

[To accompany H. Res. 382] 

The Committee on Rules, having had under consideration House 

Resolution 382, by a record vote of 7 to 3, report the same to the 

House with the recommendation that the resolution be adopted. 

SUMMARY OF PROVISIONS OF THE RESOLUTION

The resolution provides for consideration of H.R. 1215, the Protecting Access to Care Act of 2017, under a structured rule. The 

resolution provides one hour of general debate equally divided and 

controlled by the chair and ranking minority member of the Committee on the Judiciary. The resolution waives all points of order 

against consideration of the bill. The resolution makes in order as 

original text for purpose of amendment an amendment in the nature of a substitute consisting of the text of Rules Committee Print 

115–10 and provides that it shall be considered as read. The resolution waives all points of order against that amendment in the nature of a substitute. The resolution makes in order only those further amendments printed in this report. Each such amendment 

may be offered only in the order printed in this report, may be offered only by a Member designated in this report, shall be considered as read, shall be debatable for the time specified in this report 

equally divided and controlled by the proponent and an opponent, 

shall not be subject to amendment, and shall not be subject to a 

demand for division of the question in the House or in the Committee of the Whole. The resolution waives all points of order 

against the amendments printed in this report. The resolution provides one motion to recommit with or without instructions. 

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EXPLANATION OF WAIVERS

The waiver of all points of order against consideration of the bill 

includes a waiver of section 303 of the Congressional Budget Act, 

which prohibits consideration of legislation providing a change in 

revenues for a fiscal year until the budget resolution for that year 

has been agreed to. 

Although the resolution waives all points of order against the 

amendment in the nature of a substitute made in order as original 

text, the Committee is not aware of any points of order. The waiver 

is prophylactic in nature. 

Although the resolution waives all points of order against the 

amendments printed in this report, the Committee is not aware of 

any points of order. The waiver is prophylactic in nature. 

COMMITTEE VOTES

The results of each record vote on an amendment or motion to 

report, together with the names of those voting for and against, are 

printed below: 

Rules Committee record vote No. 62 

Motion by Mr. McGovern to report an open rule. Defeated: 3–7 

Majority Members Vote Minority Members Vote 

Mr. Cole ............................................................ Nay Ms. Slaughter .................................................. Yea 

Mr. Woodall ...................................................... Nay Mr. McGovern ................................................... Yea 

Mr. Burgess ...................................................... Nay Mr. Hastings of Florida ................................... Yea 

Mr. Collins ........................................................ Nay Mr. Polis ........................................................... ...................

Mr. Byrne .......................................................... ...................

Mr. Newhouse ................................................... Nay 

Mr. Buck ........................................................... Nay 

Ms. Cheney ....................................................... ...................

Mr. Sessions, Chairman ................................... Nay 

Rules Committee record vote No. 63 

Motion by Mr. Cole to report the rule. Adopted: 7–3 

Majority Members Vote Minority Members Vote 

Mr. Cole ............................................................ Yea Ms. Slaughter .................................................. Nay 

Mr. Woodall ...................................................... Yea Mr. McGovern ................................................... Nay 

Mr. Burgess ...................................................... Yea Mr. Hastings of Florida ................................... Nay 

Mr. Collins ........................................................ Yea Mr. Polis ........................................................... ...................

Mr. Byrne .......................................................... ...................

Mr. Newhouse ................................................... Yea 

Mr. Buck ........................................................... Yea 

Ms. Cheney ....................................................... ...................

Mr. Sessions, Chairman ................................... Yea 

SUMMARY OF THE AMENDMENTS MADE IN ORDER

1. Sessions (TX), Burgess (TX): Begins the tolling of the statute 

of limitations on the date of the alleged breach or tort, rather than 

the date of the injury, which is not always a date certain. The statute of limits will be three years after the alleged breach or one year 

after the claimant discovers the breach, whichever occurs first. (10 

minutes) 

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2. Burgess (TX), Sessions (TX): Clarifies that health care services 

as defined in H.R. 1215 include safety, professional, and administrative services directly related to health care. (10 minutes) 

3. Roe (TN), Hudson (NC), Marshall (KS), Bucshon (IN): Limits 

who qualifies as an expert witness, in medical malpractice negligence cases, based on professional qualifications as well as geographic relation to where the case in chief is being litigated. (10 

minutes) 

4. Hudson (NC), Abraham (LA), Harris (MD), Roe (TN), Marshall 

(KS), Bucshon (IN), DesJarlais (TN): Allows a physician to apologize to a patient for an unintended outcome without having the 

apology count against them in the court of law. Defers to the state 

law where ‘‘sorry provisions’’ are already in statute. Requires a 

plaintiff to provide a notice of intent to the physician 90 days before the lawsuit is filed. Defers to state laws that directly address 

Notices of Intent. Requires a plaintiff to have a physician in the 

same specialty as the defendant physician to sign an affidavit certifying the merits of the case before the lawsuit could be brought to 

court. Defers to state laws that directly address Affidavits of Merit. 

Requires that for any ‘‘expert witness’’ called to testify during trial, 

the witness would need to meet the same licensing requirements 

as the defendant physician. Defers to state laws that directly address Expert Witness Qualifications. (10 minutes) 

5. Barr (KY): Gives affirmative defense to defendants in health 

care liability cases if they can show they complied with clinical 

practice guidelines. (10 minutes) 

TEXT OF AMENDMENTS MADE IN ORDER

1. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE SESSIONS

OF TEXAS OR HIS DESIGNEE, DEBATABLE FOR 10 MINUTES

Page 1, strike line 7 and all that follows through page 2, line 18 

and insert the following: 

(a) STATUTE OF LIMITATIONS.— 

(1) IN GENERAL.—Except as provided in paragraph (2), the 

time for the commencement of a health care lawsuit shall be, 

whichever occurs first of the following: 

(A) 3 years after the date of the occurrence of the breach 

or tort; 

(B) 3 years after the date the medical or health care 

treatment that is the subject of the claim is completed; or 

(C) 1 year after the claimant discovers, or through the 

use of reasonable diligence should have discovered, the injury. 

(2) TOLLING.—In no event shall the time for commencement 

of a health care lawsuit exceed 3 years after the date of the 

occurrence of the breach or tort or 3 years after the date the 

medical or health care treatment that is the subject of the 

claim is completed (whichever occurs first) unless tolled for any 

of the following— 

(A) upon proof of fraud; 

(B) intentional concealment; or 

(C) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the 

injured person. 

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(3) ACTIONS BY A MINOR.—Actions by a minor shall be commenced within 3 years after the date of the occurrence of the 

breach or tort or 3 years after the date of the medical or health 

care treatment that is the subject of the claim is completed 

(whichever occurs first) except that actions by a minor under 

the full age of 6 years shall be commenced within 3 years after 

the date of the occurrence of the breach or tort, 3 years after 

the date of the medical or health care treatment that is the 

subject of the claim is completed, or 1 year after the injury is 

discovered, or through the use of reasonable diligence should 

have been discovered, or prior to the minor’s 8th birthday, 

whichever provides a longer period. Such time limitation shall 

be tolled for minors for any period during which a parent or 

guardian and a health care provider have committed fraud or 

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

2. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE BURGESS

OF TEXAS OR HIS DESIGNEE, DEBATABLE FOR 10 MINUTES

Page 12, line 13, insert after ‘‘goods or services’’ the following: 

‘‘(including safety, professional, or administrative services directly 

related to health care)’’. 

3. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE ROE OF

TENNESSEE OR HIS DESIGNEE, DEBATABLE FOR 10 MINUTES

Add, at the end of the bill, the following (and amend the table 

of contents accordingly): 

SEC. 11. LIMITATION ON EXPERT WITNESS TESTIMONY. 

(a) IN GENERAL.—No person in a health care profession requiring 

licensure under the laws of a State shall be competent to testify in 

any court of law to establish the following facts— 

(1) the recognized standard of acceptable professional practice and the specialty thereof, if any, that the defendant practices, which shall be the type of acceptable professional practice recognized in the defendant’s community or in a community similar to the defendant’s community that was in place at 

the time the alleged injury or wrongful action occurred, 

(2) that the defendant acted with less than or failed to act 

with ordinary and reasonable care in accordance with the recognized standard, and 

(3) that as a proximate result of the defendant’s negligent 

act or omission, the claimant suffered injuries which would not 

otherwise have occurred, 

unless the person was licensed to practice, in the State or a contiguous bordering State, a profession or specialty which would make 

the person’s expert testimony relevant to the issues in the case and 

had practiced this profession or specialty in one of these States 

during the year preceding the date that the alleged injury or 

wrongful act occurred. 

(b) APPLICABILITY.—The requirements set forth in subsection (a) 

shall also apply to expert witnesses testifying for the defendant as 

rebuttal witnesses. 

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(c) WAIVER AUTHORITY.—The court may waive the requirements 

in this subsection if it determines that the appropriate witnesses 

otherwise would not be available. 

4. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE HUDSON

OF NORTH CAROLINA OR HIS DESIGNEE, DEBATABLE FOR 10 MINUTES

Add, at the end of the bill, the following: 

SEC. 11. COMMUNICATIONS FOLLOWING UNANTICIPATED OUTCOME. 

(a) PROVIDER COMMUNICATIONS.—In any health care liability action, any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a 

health care provider or an employee of a health care provider to the 

patient, a relative of the patient, or a representative of the patient 

and which relate to the discomfort, pain, suffering, injury, or death 

of the patient as the result of the unanticipated outcome of medical 

care shall be inadmissible for any purpose as evidence of an admission of liability or as evidence of an admission against interest. 

(b) STATE FLEXIBILITY.—No provision of this section shall be construed to preempt any State law (whether effective before, on, or 

after the date of the enactment of this Act) that makes additional 

communications inadmissible as evidence of an admission of liability or as evidence of an admission against interest. 

SEC. 12. EXPERT WITNESS QUALIFICATIONS. 

(a) IN GENERAL.—In any health care lawsuit, an individual shall 

not give expert testimony on the appropriate standard of practice 

or care involved unless the individual is licensed as a health professional in one or more States and the individual meets the following 

criteria: 

(1) If the party against whom or on whose behalf the testimony is to be offered is or claims to be a specialist, the expert 

witness shall specialize at the time of the occurrence that is 

the basis for the lawsuit in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is to be offered. If the party against whom or on whose 

behalf the testimony is to be offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty. 

(2) During the 1-year period immediately preceding the occurrence of the action that gave rise to the lawsuit, the expert 

witness shall have devoted a majority of the individual’s professional time to one or more of the following: 

(A) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to 

be a specialist, in the same specialty or claimed specialty. 

(B) The instruction of students in an accredited health 

professional school or accredited residency or clinical research program in the same health profession as the defendant and, if the defendant is or claims to be a specialist, in an accredited health professional school or acVerDate Sep 11 2014 03:02 Jun 14, 2017 Jkt 069006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR179.XXX HR179
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credited residency or clinical research program in the same 

specialty or claimed specialty. 

(3) If the defendant is a general practitioner, the expert witness shall have devoted a majority of the witness’s professional 

time in the 1-year period preceding the occurrence of the action 

giving rise to the lawsuit to one or more of the following: 

(A) Active clinical practice as a general practitioner. 

(B) Instruction of students in an accredited health professional school or accredited residency or clinical research 

program in the same health profession as the defendant. 

(b) LAWSUITS AGAINST ENTITIES.—If the defendant in a health 

care lawsuit is an entity that employs a person against whom or 

on whose behalf the testimony is offered, the provisions of subsection (a) apply as if the person were the party or defendant 

against whom or on whose behalf the testimony is offered. 

(c) POWER OF COURT.—Nothing in this subsection shall limit the 

power of the trial court in a health care lawsuit to disqualify an 

expert witness on grounds other than the qualifications set forth 

under this subsection. 

(d) LIMITATION.—An expert witness in a health care lawsuit shall 

not be permitted to testify if the fee of the witness is in any way 

contingent on the outcome of the lawsuit. 

(e) STATE FLEXIBILITY.—No provision of this section shall be construed to preempt any State law (whether effective before, on, or 

after the date of the enactment of this Act) that places additional 

qualification requirements upon any individual testifying as an expert witness. 

SEC. 13. AFFIDAVIT OF MERIT. 

(a) REQUIRED FILING.—Subject to subsection (b), the plaintiff in 

a health care lawsuit alleging negligence or, if the plaintiff is represented by an attorney, the plaintiff’s attorney shall file simultaneously with the health care lawsuit an affidavit of merit signed 

by a health professional who meets the requirements for an expert 

witness under section 14 of this Act. The affidavit of merit shall 

certify that the health professional has reviewed the notice and all 

medical records supplied to him or her by the plaintiff’s attorney 

concerning the allegations contained in the notice and shall contain 

a statement of each of the following: 

(1) The applicable standard of practice or care. 

(2) The health professional’s opinion that the applicable 

standard of practice or care was breached by the health professional or health facility receiving the notice. 

(3) The actions that should have been taken or omitted by 

the health professional or health facility in order to have complied with the applicable standard of practice or care. 

(4) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in 

the notice. 

(5) A listing of the medical records reviewed. 

(b) FILING EXTENSION.—Upon motion of a party for good cause 

shown, the court in which the complaint is filed may grant the 

plaintiff or, if the plaintiff is represented by an attorney, the plaintiff’s attorney an additional 28 days in which to file the affidavit 

required under subsection (a). 

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(c) STATE FLEXIBILITY.—No provision of this section shall be construed to preempt any State law (whether effective before, on, or 

after the date of the enactment of this Act) that establishes additional requirements for the filing of an affidavit of merit or similar 

pre-litigation documentation. 

SEC. 14. NOTICE OF INTENT TO COMMENCE LAWSUIT. 

(a) ADVANCE NOTICE.—A person shall not commence a health 

care lawsuit against a health care provider unless the person has 

given the health care provider 90 days written notice before the action is commenced. 

(b) EXCEPTIONS.—A health care lawsuit against a health care 

provider filed within 6 months of the statute of limitations expiring 

as to any claimant, or within 1 year of the statute of repose expiring as to any claimant, shall be exempt from compliance with this 

section. 

(c) STATE FLEXIBILITY.—No provision of this section shall be construed to preempt any State law (whether effective before, on, or 

after the date of the enactment of this Act) that establishes a different time period for the filing of written notice. 

5. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE BARR OF

KENTUCKY OR HIS DESIGNEE, DEBATABLE FOR 10 MINUTES

Add, at the end of the bill, the following (and amend the table 

of contents accordingly): 

SEC. 11. AFFIRMATIVE DEFENSE. 

(a) IN GENERAL.—In the case of a health care lawsuit, it shall be 

an affirmative defense to any health care liability claim alleged 

therein that the defendant complied with a clinical practice guideline that was established, published, maintained, and updated on 

a regular basis by an eligible professional organization and that is 

applicable to the provision or use of health care services or medical 

products for which the health care liability claim is brought. 

(b) DEFINITIONS.—For purposes of this section: 

(1) CLINICAL PRACTICE GUIDELINE.—The term ‘‘clinical practice guideline’’ means systematically developed statements 

based on the review of clinical evidence for assisting a health 

care provider to determine the appropriate health care in specific clinical circumstances. 

(2) ELIGIBLE PROFESSIONAL ORGANIZATION.—The term ‘‘eligible professional organization’’ means a national or State medical society or medical specialty society. 

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