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106TH CONGRESS

2D SESSION H. R. 5092

To provide for health care liability reform.

IN THE HOUSE OF REPRESENTATIVES

JULY 27, 2000

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

Committee on the Judiciary

A BILL

To provide for health care liability reform.

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 ‘‘Health Care Liability

5 Reform Act’’.

6 SEC. 2. HEALTH CARE LIABILITY REFORM.

7 (a) PUNITIVE DAMAGES.—

8 (1) AWARD.—Punitive damages may, to the ex9 tent permitted by applicable State law, be awarded

10 against a manufacturer or product seller in a civil

11 action if the claimant establishes by clear and con-
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1 vincing evidence that the harm suffered was the re2 sult of conduct manifesting actual malice.

3 (2) DRUGS AND DEVICES.—The manufacturer

4 of a prescription drug or device and a health care

5 provider shall not be subject to punitive damages

6 with respect to harm caused by a drug or device if

7 the drug or device was approved under the Federal

8 Food, Drug, and Cosmetic Act unless—

9 (A) the manufacturer withholds from the

10 Food and Drug Administration, or

11 (B) the health care provider withholds

12 from a patient,

13 information which is relevant to the performance of

14 the drug or device and causally related to the harm

15 suffered by the plaintiff.

16 (3) LIMITATION ON AMOUNT.—The amount of

17 punitive damages that may be awarded for a claim

18 in any civil action shall not exceed 3 times the

19 amount awarded to the claimant for the economic

20 injury on which such claim is based, or $250,000,

21 whichever is greater.

22 (b) SEVERAL LIABILITY FOR NONECONOMIC DAM23 AGES.—In any action, the liability of each manufacturer

24 or product seller of the product involved in such action

25 shall be several only and shall not be joint for noneconomic
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1 damages. Such manufacturer or product seller shall be lia2 ble only for the amount of noneconomic damages allocated

3 to such manufacturer or seller in direct proportion to such

4 manufacturer’s or such seller’s percentage of responsibility

5 as determined by the trier of fact.

6 (c) DEFINITIONS.—As used in this section:

7 (1) CLAIMANT.—The term ‘‘claimant’’ means

8 any person who brings a product liability action and

9 any person on whose behalf such an action is

10 brought, including such person’s decedent if such an

11 action is brought through or on behalf of an estate

12 or such person’s legal representative if it is brought

13 through or on behalf of a minor or incompetent.

14 (2) MALICE.—The term ‘‘malice’’ means con15 duct that is either—

16 (A) specifically intended to cause serious

17 personal injury, or

18 (B) carried out with both a flagrant indif19 ference to the rights of the claimant and an

20 awareness that such conduct is likely to result

21 in serious personal injury.

22 (3) MANUFACTURER.—With respect to a prod23 uct, the term ‘‘manufacturer’’ means—

24 (A) any person who is engaged in a busi25 ness to produce, create, make, or construct the
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1 product and who designs or formulates the

2 product or has engaged another person to de3 sign or formulate the product,

4 (B) a product seller of the product who,

5 before placing the product in the stream of

6 commerce—

7 (i) designs or formulates or has en8 gaged another person to design or formu9 late an aspect of the product after the

10 product was initially made by another, and

11 (ii) produces, creates, makes, or con12 structs such aspect of the product, or

13 (C) any product seller not described in

14 subparagraph (B) which holds itself out as a

15 manufacturer to the user of the product,

16 (4) PRODUCT.—The term ‘‘product’’—

17 (A) means any object, substance, mixture,

18 or raw material in a gaseous, liquid, or solid

19 state—

20 (i) which is capable of delivery itself,

21 in a mixed or combined state, or as a com22 ponent part or ingredient,

23 (ii) which is produced for introduction

24 into trade or commerce,
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1 (iii) which has intrinsic economic

2 value, and

3 (iv) which is intended for sale or lease

4 to persons for commercial or personal use,

5 and

6 (B) does not include—

7 (i) human tissue, human organs,

8 human blood, and human blood products,

9 or

10 (ii) electricity, water delivered by a

11 utility, natural gas, or steam,

12 (5) PRODUCT SELLER.—The term ‘‘product

13 seller’’—

14 (A) means a person—

15 (i) who sells, distributes, leases, pre16 pares, blends, packages, or labels a product

17 or is otherwise involved in placing a prod18 uct in the stream of commerce, or

19 (ii) who installs, repairs, or maintains

20 the harm-causing aspect of a product, and

21 (B) does not include—

22 (i) a manufacturer,

23 (ii) a seller or lessor of real property,

24 (iii) a provider of professional services

25 in any case in which the sale or use of a
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1 product is incidental to the transaction and

2 the essence of the transaction is the fur3 nishing of judgment, skill, or services,

4 (iv) any person who acts only in a fi5 nancial capacity with respect to the sale of

6 a product, or

7 (v) any person who leases a product

8 under a lease arrangement in which the se9 lection, possession, maintenance, and oper10 ation of the product are controlled by a

11 person other than the lessor.

12 SEC. 3. PREEMPTION.

13 This Act preempts State law, with respect to both

14 procedural and substantive measures, to the extent that

15 such law—

16 (1) permits the recovery of a greater amount of

17 punitive damages by a plaintiff than that authorized

18 by section 2(a)(3); or

19 (2) permits an action for joint liability for non20 economic damages against a manufacturer or prod21 uct seller of a product involved in the action, which

22 action is prohibited by section 2(b).

23 Any issue that is not governed by this Act shall be gov24 erned by otherwise applicable State or Federal law.

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