19–008

108TH CONGRESS REPORT " HOUSE OF REPRESENTATIVES ! 1st Session 108–34

PROVIDING FOR CONSIDERATION OF H.R. 5, HELP EFFICIENT, ACCESSIBLE, LOW COST, TIMELY HEALTHCARE 

(HEALTH) ACT OF 2003

MARCH 12, 2003.—Referred to the House Calendar and ordered to be printed 

Mr. REYNOLDS, from the Committee on Rules, 

submitted the following 

R E P O R T 

[To accompany H. Res. 139] 

The Committee on Rules, having had under consideration House 

Resolution 139, by a nonrecord vote, reports 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. 5, the Help Efficient, Accessible, Low Cost, Timely Healthcare (HEALTH) Act of 

2003, under a closed rule. The rule provides two hours of debate 

in the House, with 80 minutes equally divided and controlled by 

the chairman and ranking minority member of the Committee on 

the Judiciary and 40 minutes equally divided and controlled by the 

chairman and ranking minority member of the Committee on Energy and Commerce. The rule waives all points of order against 

consideration of the bill. 

The rule further provides that in lieu of the amendments recommended by the Committees on the Judiciary and on Energy and 

Commerce now printed in the bill, the amendment in the nature 

of a substitute printed in this report shall be considered as adopted. The rule provides one motion to recommit with or without instructions. Finally, the rule provides that House Resolution 126 is 

laid on the table. 

The waiver of all points of order includes a waiver of clause 4(a) 

of rule XIII (requiring a three-day layover of committee reports) 

and of section 303 of the Congressional Budget Act (prohibiting 

consideration of legislation, as reported, providing new budget authority, change in revenues, change in public debt, new entitlement 

authority, or new credit authority for a fiscal year until the budget 

resolution for that year has been agreed to). The waiver of clause 

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4(a) of rule XIII is necessary because reports were not available 

until Tuesday, March 11 and the bill may be considered by the 

House as early as Thursday, March 13, 2003. The waiver of section 

303 is necessary because a reduction of healthcare costs will increase wages and result in increased revenues. 

COMMITTEE VOTES

Pursuant to clause 3(b) of House rule XIII 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. 16

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Frost. 

Summary of motion: To report an open rule. 

Results: Defeated 3 to 7. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; 

Myrick—Nay; Sessions—Nay; Reynolds—Nay; Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 17

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Frost. 

Summary of motion: To make in order the amendment in the nature of a substitute offered by Representatives Conyers and Dingell 

as modified. 

Results: Defeated 3 to 7. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; 

Myrick—Nay; Sessions—Nay; Reynolds—Nay; Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay.

Rules Committee record vote No. 18

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Frost. 

Summary of motion: to make in order the amendment offered by 

Representative Pallone which clarifies the definitions to ensure 

that its liability protections do not apply to HMOs and drug and 

device manufacturers. 

Results: Defeated 3 to 7. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; 

Myrick—Nay; Sessions—Nay; Reynolds—Nay; Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 19

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Frost. 

Summary of motion: To make in order the amendment offered 

Representative Sandlin which prohibits a carrier offering medical 

malpractice insurance from charging a premium that exceeds 80 

percent of the amount of the premium charged during calendar 

year 2001, but provides that carriers are permitted to increase 

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their premium rates on an annual basis in an amount no greater 

than any increase in the Consumer Price Index plus 2 percent. Provides that the Secretary of Health and Human Services may offer 

an adjustment to such limitation to a carrier that satisfactorily 

demonstrates it would be unable to earn a fair rate of return due 

to the imposed limitation, provided, that the adjustment may not 

exceed the minimum amount that the Secretary determines is required for the carrier to realize a fair rate of return. 

Results: Defeated 3 to 7. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; 

Myrick—Nay; Sessions—Nay; Reynolds—Nay; Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 20

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Frost. 

Summary of motion: To make in order the amendment offered by 

Representative Sandlin which prohibits a carrier offering medical 

malpractice insurance from charging a premium that exceeds 80 

percent of the amount of the premium charged during calendar 

year 2001. Provides that the Secretary of Health and Human Services may make an adjustment to such limitation to a carrier that 

satisfactorily demonstrates it would be unable to earn a fair rate 

of return due to the imposed limitation, provided, that the adjustment may not exceed the minimum amount that the Secretary determines is required for the carrier to realize a fair rate of return. 

Results: Defeated 3 to 7. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; 

Myrick—Nay; Sessions—Nay; Reynolds—Nay; Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay.

Rules Committee record vote No. 21

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Frost. 

Summary of motion: To make in order the amendment offered by 

Representative Jackson-Lee which strikes the cap on punitive damages. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 22

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Frost. 

Summary of motion: To make in order the amendment in the nature of a substitute offered by Representatives Conyers and Dingell 

with the appropriate waivers. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

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Rules Committee record vote No. 23

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. McGovern. 

Summary of motion: To make in order the amendment offered by 

Representative Delahunt which changes the $250,000 cap on noneconomic damages to $1,607,615 to reflect the increase in the cost 

of medical care since California enacted its $250,000 cap in 1975. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay.

Rules Committee record vote No. 24

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. McGovern. 

Summary of motion: To make in order the amendment offered by 

Representative Delahunt which Bars health care lawsuits in all 

cases unless the complaint is filed within 3 years after date injury 

is or should have been discovered. Amendment also tolls statute of 

limitations for minors until they come of age. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 25

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. McGovern. 

Summary of motion: To make in order the amendment offered by 

Representative Jackson-Lee which mandates the state agencies 

regulating insurance create a State Impaired Physicians Fund to 

provide services including drug and alcohol treatment counseling 

for physicians and a Participating Physicians Fund to provide 

training for physicians treating indigent populations. Would require all medical malpractice insurers to contribute 2 percent of 

their savings derived from the provisions of this Act, to the State 

Impaired Physicians Fund. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 26

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. McGovern. 

Summary of motion: To make in order the amendment offered by 

Representative Hoeffel which allows for court to exceed $250,000 

damages cap in cases where it finds a severe or permanent loss or 

impairment of a bodily function or substantial disfigurement or 

other special circumstances. In such cases, the cap could be exceedVerDate Jan 31 2003 04:38 Mar 13, 2003 Jkt 085573 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR034.XXX HR034
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ed if failing to do so would deprive the claimant of just compensation for the injuries sustained. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay.

Rules Committee record vote No. 27

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. McGovern. 

Summary of motion: To make in order the amendment offered by 

Representative Nadler which indexes the $250,000 cap on non-economic and punitive damages in the bill for inflation. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 28

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. McGovern. 

Summary of motion: To make in order the amendment offered by 

Representative Nadler which prohibits secret settlements in medical malpractice cases unless a judge finds that doing so would not 

harm the public health and safety. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 29

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. McGovern. 

Summary of motion: To make in order the amendment offered by 

Representative Jackson-Lee which strikes the non-economic damage cap. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay.

Rules Committee record vote No. 30

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. McGovern. 

Summary of motion: To make in order the amendment offered by 

Representative Jackson-Lee which prohibits any malpractice insurer from increasing rates during the 12 months following enactment of this Act. 

Results: Defeated 3 to 8. 

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Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 31

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Hastings of Florida. 

Summary of motion: To make in order the amendment offered by 

Representative Jackson-Lee which requires that all medical malpractice insurers make a reasonable estimate of their annual savings achieved as a result of this Act. Requires the insurers to develop and implement a plan to dedicate at least 50 percent of those 

savings to reduction of premiums for covered physicians. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 32

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Hastings of Florida. 

Summary of motion: To make in order the amendment offered by 

Representative Stupak which adds a section removing the antitrust 

exemption for health care liability insurance companies. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay.

Rules Committee record vote No. 33

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Hastings of Florida. 

Summary of motion: To make in order the amendment offered by 

Representative Scott of Virginia which removes section 6 from the 

bill. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 34

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Hastings of Florida. 

Summary of motion: To make in order the amendment offered by 

Representative Scott of Virginia which deletes subsection ‘‘(D)’’ on 

page 20 of the bill, the so-called ‘‘Fair Share Rule.’’

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

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Rules Committee record vote No. 35

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Hastings of Florida. 

Summary of motion: To make in order the amendment offered by 

Representative Stupak which allows the non-economic damages cap 

to rise with the rate of inflation. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay.

Rules Committee record vote No. 36

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Hastings of Florida. 

Summary of motion: To make in order the amendment offered by 

Representative Berkley which provides a Sense of the Congress to 

express that medical malpractice liability reform should be accompanied by insurance reform. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

Rules Committee record vote No. 37

Date: March 12, 2003. 

Measure: H.R. 5. 

Motion by: Mr. Frost. 

Summary of motion: To make in order an en bloc amendment. 

Results: Defeated 3 to 8. 

Vote by Members: Goss—Nay; Linder—Nay; Pryce—Nay; DiazBalart—Nay; Myrick—Nay; Sessions—Nay; Reynolds—Nay; 

Frost—Yea; McGovern—Yea; Hastings (FL)—Yea; Dreier—Nay. 

SUMMARY OF AMENDMENT TO BE CONSIDERED AS ADOPTED

(Summary derived from information provided by the sponsor.) 

Sensenbrenner/Tauzin: Amendment in the Nature of a Substitute. Includes a 3 year statute of limitations with certain exceptions for minors, fraud, intentional concealment and the presence 

of a foreign body; a $250,000 cap on non-economic damages and a 

‘‘fair share’’ rule, by which damages are allocated fairly, in direct 

proportion to fault; sliding scale limits on the contingency fees lawyers can charge; authorization for defendants to introduce evidence 

showing the plaintiff received compensation for losses from outside 

sources (to prevent double recoveries); guidelines for the award of 

punitive damages, including guidelines for punitive damages award 

not to exceed the greater of $250,000 or twice economic damages; 

a safe harbor from punitive damages for products that meet applicable FDA safety requirements, with exceptions for cases in which 

information required to be given to the FDA was withheld and 

cases in which illegal payments were made to the FDA; protections 

of pharmacists and doctors from being named in lawsuits for 

forum-shopping purposes; authorization for courts to require periVerDate Jan 31 2003 05:58 Mar 13, 2003 Jkt 085573 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\HR034.XXX HR034
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odic payments for future damages; except as provided in the Act 

nothing in the Act shall affect any defense available to a defendant 

in a health care lawsuit or action under any other provision of federal law; a savings clause that saves from preemption state laws 

that limit damages to specific amounts. 

TEXT OF AMENDMENT CONSIDERED AS ADOPTED

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Help Efficient, Accessible, Lowcost, Timely Healthcare (HEALTH) Act of 2003’’. 

SEC. 2. FINDINGS AND PURPOSE. 

(a) FINDINGS.—

(1) EFFECT ON HEALTH CARE ACCESS AND COSTS.—Congress 

finds that our current civil justice system is adversely affecting 

patient access to health care services, better patient care, and 

cost-efficient health care, in that the health care liability system is a costly and ineffective mechanism for resolving claims 

of health care liability and compensating injured patients, and 

is a deterrent to the sharing of information among health care 

professionals which impedes efforts to improve patient safety 

and quality of care. 

(2) EFFECT ON INTERSTATE COMMERCE.—Congress finds that 

the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation 

systems existing throughout the United States are activities 

that affect interstate commerce by contributing to the high 

costs of health care and premiums for health care liability insurance purchased by health care system providers. 

(3) EFFECT ON FEDERAL SPENDING.—Congress finds that the 

health care liability litigation systems existing throughout the 

United States have a significant effect on the amount, distribution, and use of Federal funds because of—

(A) the large number of individuals who receive health 

care benefits under programs operated or financed by the 

Federal Government; 

(B) the large number of individuals who benefit because 

of the exclusion from Federal taxes of the amounts spent 

to provide them with health insurance benefits; and 

(C) the large number of health care providers who provide items or services for which the Federal Government 

makes payments. 

(b) PURPOSE.—It is the purpose of this Act to implement reasonable, comprehensive, and effective health care liability reforms designed to—

(1) improve the availability of health care services in cases 

in which health care liability actions have been shown to be a 

factor in the decreased availability of services; 

(2) reduce the incidence of ‘‘defensive medicine’’ and lower 

the cost of health care liability insurance, all of which contribute to the escalation of health care costs;

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(3) ensure that persons with meritorious health care injury 

claims receive fair and adequate compensation, including reasonable noneconomic damages; 

(4) improve the fairness and cost-effectiveness of our current 

health care liability system to resolve disputes over, and provide compensation for, health care liability by reducing uncertainty in the amount of compensation provided to injured individuals; and 

(5) provide an increased sharing of information in the health 

care system which will reduce unintended injury and improve 

patient care. 

SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

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

3 years after the date of manifestation of injury or 1 year after the 

claimant discovers, or through the use of reasonable diligence 

should have discovered, the injury, whichever occurs first. In no 

event shall the time for commencement of a health care lawsuit exceed 3 years after the date of manifestation of injury unless tolled 

for any of the following: 

(1) Upon proof of fraud; 

(2) Intentional concealment; or 

(3) The presence of a foreign body, which has no therapeutic 

or diagnostic purpose or effect, in the person of the injured person. 

Actions by a minor shall be commenced within 3 years from the 

date of the alleged manifestation of injury except that actions by 

a minor under the full age of 6 years shall be commenced within 

3 years of manifestation of injury 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 or health care organization have 

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

SEC. 4. COMPENSATING PATIENT INJURY. 

(a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL ECONOMIC

LOSSES IN HEALTH CARE LAWSUITS.—In any health care lawsuit, 

nothing in this Act shall limit a claimant’s recovery of the full 

amount of the available economic damages, notwithstanding the 

limitation in subsection (b). 

(b) ADDITIONAL NONECONOMIC DAMAGES.—In any health care 

lawsuit, the amount of noneconomic damages, if available, may be 

as much as $250,000, regardless of the number of parties against 

whom the action is brought or the number of separate claims or actions brought with respect to the same injury. 

(c) NO DISCOUNT OF AWARD FOR NONECONOMIC DAMAGES.—For 

purposes of applying the limitation in subsection (b), future noneconomic damages shall not be discounted to present value. The 

jury shall not be informed about the maximum award for noneconomic damages. An award for noneconomic damages in excess 

of $250,000 shall be reduced either before the entry of judgment, 

or by amendment of the judgment after entry of judgment, and 

such reduction shall be made before accounting for any other reduction in damages required by law. If separate awards are rendered for past and future noneconomic damages and the combined 

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awards exceed $250,000, the future noneconomic damages shall be 

reduced first. 

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

shall be liable for that party’s several share of any damages only 

and not for the share of any other person. Each party shall be liable only for the amount of damages allocated to such party in direct 

proportion to such party’s percentage of responsibility. Whenever a 

judgment of liability is rendered as to any party, a separate judgment shall be rendered against each such party for the amount allocated to such party. For purposes of this section, the trier of fact 

shall determine the proportion of responsibility of each party for 

the claimant’s harm. 

SEC. 5. MAXIMIZING PATIENT RECOVERY. 

(a) COURT SUPERVISION OF SHARE OF DAMAGES ACTUALLY PAID

TO CLAIMANTS.—In any health care lawsuit, the court shall supervise the arrangements for payment of damages to protect against 

conflicts of interest that may have the effect of reducing the 

amount of damages awarded that are actually paid to claimants. In 

particular, in any health care lawsuit in which the attorney for a 

party claims a financial stake in the outcome by virtue of a contingent fee, the court shall have the power to restrict the payment of 

a claimant’s damage recovery to such attorney, and to redirect such 

damages to the claimant based upon the interests of justice and 

principles of equity. In no event shall the total of all contingent 

fees for representing all claimants in a health care lawsuit exceed 

the following limits: 

(1) 40 percent of the first $50,000 recovered by the claimant(s). 

(2) 331⁄3 percent of the next $50,000 recovered by the claimant(s). 

(3) 25 percent of the next $500,000 recovered by the claimant(s). 

(4) 15 percent of any amount by which the recovery by the 

claimant(s) is in excess of $600,000. 

(b) APPLICABILITY.—The limitations in this section shall apply 

whether the recovery is by judgment, settlement, mediation, arbitration, or any other form of alternative dispute resolution. In a 

health care lawsuit involving a minor or incompetent person, a 

court retains the authority to authorize or approve a fee that is less 

than the maximum permitted under this section. The requirement 

for court supervision in the first two sentences of subsection (a) applies only in civil actions. 

SEC. 6. ADDITIONAL HEALTH BENEFITS. 

In any health care lawsuit involving injury or wrongful death, 

any party may introduce evidence of collateral source benefits. If 

a party elects to introduce such evidence, any opposing party may 

introduce evidence of any amount paid or contributed or reasonably 

likely to be paid or contributed in the future by or on behalf of the 

opposing party to secure the right to such collateral source benefits. 

No provider of collateral source benefits shall recover any amount 

against the claimant or receive any lien or credit against the claimant’s recovery or be equitably or legally subrogated to the right of 

the claimant in a health care lawsuit involving injury or wrongful 

death. This section shall apply to any health care lawsuit that is 

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settled as well as a health care lawsuit that is resolved by a fact 

finder. This section shall not apply to section 1862(b) (42 U.S.C. 

1395y(b)) or section 1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social Security Act. 

SEC. 7. PUNITIVE DAMAGES. 

(a) IN GENERAL.—Punitive damages may, if otherwise permitted 

by applicable State or Federal law, be awarded against any person 

in a health care lawsuit only if it is proven by clear and convincing 

evidence that such person acted with malicious intent to injure the 

claimant, or that such person deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially 

certain to suffer. In any health care lawsuit where no judgment for 

compensatory damages is rendered against such person, no punitive damages may be awarded with respect to the claim in such 

lawsuit. No demand for punitive damages shall be included in a 

health care lawsuit as initially filed. A court may allow a claimant 

to file an amended pleading for punitive damages only upon a motion by the claimant and after a finding by the court, upon review 

of supporting and opposing affidavits or after a hearing, after 

weighing the evidence, that the claimant has established by a substantial probability that the claimant will prevail on the claim for 

punitive damages. At the request of any party in a health care lawsuit, the trier of fact shall consider in a separate proceeding—

(1) whether punitive damages are to be awarded and the 

amount of such award; and 

(2) the amount of punitive damages following a determination of punitive liability. 

If a separate proceeding is requested, evidence relevant only to the 

claim for punitive damages, as determined by applicable State law, 

shall be inadmissible in any proceeding to determine whether compensatory damages are to be awarded. 

(b) DETERMINING AMOUNT OF PUNITIVE DAMAGES.—

(1) FACTORS CONSIDERED.—In determining the amount of punitive damages, if awarded, in a health care lawsuit, the trier 

of fact shall consider only the following:

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

such party; 

(B) the duration of the conduct or any concealment of it 

by such party; 

(C) the profitability of the conduct to such party; 

(D) the number of products sold or medical procedures 

rendered for compensation, as the case may be, by such 

party, of the kind causing the harm complained of by the 

claimant; 

(E) any criminal penalties imposed on such party, as a 

result of the conduct complained of by the claimant; and 

(F) the amount of any civil fines assessed against such 

party as a result of the conduct complained of by the 

claimant. 

(2) MAXIMUM AWARD.—The amount of punitive damages, if 

awarded, in a health care lawsuit may be as much as $250,000 

or as much as two times the amount of economic damages 

awarded, whichever is greater. The jury shall not be informed 

of this limitation. 

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(c) NO PUNITIVE DAMAGES FOR PRODUCTS THAT COMPLY WITH

FDA STANDARDS.—

(1) IN GENERAL.—

(A) No punitive damages may be awarded against the 

manufacturer or distributor of a medical product, or a supplier of any component or raw material of such medical 

product, based on a claim that such product caused the 

claimant’s harm where—

(i)(I) such medical product was subject to premarket 

approval, clearance, or licensure by the Food and Drug 

Administration with respect to the safety of the formulation or performance of the aspect of such medical 

product which caused the claimant’s harm or the adequacy of the packaging or labeling of such medical 

product; and 

(II) such medical product was so approved, cleared, 

or licensed; or 

(ii) such medical product is generally recognized 

among qualified experts as safe and effective pursuant 

to conditions established by the Food and Drug Administration and applicable Food and Drug Administration regulations, including without limitation those 

related to packaging and labeling, unless the Food and 

Drug Administration has determined that such medical product was not manufactured or distributed in 

substantial compliance with applicable Food and Drug 

Administration statutes and regulations. 

(B) RULE OF CONSTRUCTION.—Subparagraph (A) may not 

be construed as establishing the obligation of the Food and 

Drug Administration to demonstrate affirmatively that a 

manufacturer, distributor, or supplier referred to in such 

subparagraph meets any of the conditions described in 

such subparagraph. 

(2) LIABILITY OF HEALTH CARE PROVIDERS.—A health care 

provider who prescribes, or who dispenses pursuant to a prescription, a medical product approved, licensed, or cleared by 

the Food and Drug Administration shall not be named as a 

party to a product liability lawsuit involving such product and 

shall not be liable to a claimant in a class action lawsuit 

against the manufacturer, distributor, or seller of such product. 

Nothing in this paragraph prevents a court from consolidating 

cases involving health care providers and cases involving products liability claims against the manufacturer, distributor, or 

product seller of such medical product. 

(3) PACKAGING.—In a health care lawsuit for harm which is 

alleged to relate to the adequacy of the packaging or labeling 

of a drug which is required to have tamper-resistant packaging 

under regulations of the Secretary of Health and Human Services (including labeling regulations related to such packaging), 

the manufacturer or product seller of the drug shall not be 

held liable for punitive damages unless such packaging or labeling is found by the trier of fact by clear and convincing evidence to be substantially out of compliance with such regulations. 

13

(4) EXCEPTION.—Paragraph (1) shall not apply in any health 

care lawsuit in which—

(A) a person, before or after premarket approval, clearance, or licensure of such medical product, knowingly misrepresented to or withheld from the Food and Drug Administration information that is required to be submitted 

under the Federal Food, Drug, and Cosmetic Act (21 

U.S.C. 301 et seq.) or section 351 of the Public Health 

Service Act (42 U.S.C. 262) that is material and is causally 

related to the harm which the claimant allegedly suffered; 

or 

(B) a person made an illegal payment to an official of the 

Food and Drug Administration for the purpose of either securing or maintaining approval, clearance, or licensure of 

such medical product. 

SEC. 8. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO 

CLAIMANTS IN HEALTH CARE LAWSUITS. 

(a) IN GENERAL.—In any health care lawsuit, if an award of future damages, without reduction to present value, equaling or exceeding $50,000 is made against a party with sufficient insurance 

or other assets to fund a periodic payment of such a judgment, the 

court shall, at the request of any party, enter a judgment ordering 

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

health care lawsuit, the court may be guided by the Uniform Periodic Payment of Judgments Act promulgated by the National Conference of Commissioners on Uniform State Laws. 

(b) APPLICABILITY.—This section applies to all actions which have 

not been first set for trial or retrial before the effective date of this 

Act.

SEC. 9. DEFINITIONS. 

In this Act: 

(1) ALTERNATIVE DISPUTE RESOLUTION SYSTEM; ADR.—The 

term ‘‘alternative dispute resolution system’’ or ‘‘ADR’’ means 

a system that provides for the resolution of health care lawsuits in a manner other than through a civil action brought in 

a State or Federal court. 

(2) CLAIMANT.—The term ‘‘claimant’’ means any person who 

brings a health care lawsuit, including a person who asserts or 

claims a right to legal or equitable contribution, indemnity or 

subrogation, arising out of a health care liability claim or action, and any person on whose behalf such a claim is asserted 

or such an action is brought, whether deceased, incompetent, 

or a minor. 

(3) COLLATERAL SOURCE BENEFITS.—The term ‘‘collateral 

source benefits’’ means any amount paid or reasonably likely 

to be paid in the future to or on behalf of the claimant, or any 

service, product or other benefit provided or reasonably likely 

to be provided in the future to or on behalf of the claimant, as 

a result of the injury or wrongful death, pursuant to— (A) any State or Federal health, sickness, income-disability, accident, or workers’ compensation law; 

(B) any health, sickness, income-disability, or accident 

insurance that provides health benefits or income-disability coverage; 

14

(C) any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or income 

disability benefits; and 

(D) any other publicly or privately funded program. 

(4) COMPENSATORY DAMAGES.—The term ‘‘compensatory damages’’ means objectively verifiable monetary losses incurred as 

a result of the provision of, use of, or payment for (or failure 

to provide, use, or pay for) health care services or medical 

products, such as past and future medical expenses, loss of 

past and future earnings, cost of obtaining domestic services, 

loss of employment, and loss of business or employment opportunities, damages for physical and emotional pain, suffering, 

inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), 

hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind or nature. The term ‘‘compensatory 

damages’’ includes economic damages and noneconomic damages, as such terms are defined in this section. 

(5) CONTINGENT FEE.—The term ‘‘contingent fee’’ includes all 

compensation to any person or persons which is payable only 

if a recovery is effected on behalf of one or more claimants. 

(6) ECONOMIC DAMAGES.—The term ‘‘economic damages’’

means objectively verifiable monetary losses incurred as a result of the provision of, use of, or payment for (or failure to 

provide, use, or pay for) health care services or medical products, such as past and future medical expenses, loss of past 

and future earnings, cost of obtaining domestic services, loss of 

employment, and loss of business or employment opportunities. 

(7) HEALTH CARE LAWSUIT.—The term ‘‘health care lawsuit’’

means any health care liability claim concerning the provision 

of health care goods or services or any medical product affecting interstate commerce, or any health care liability action concerning the provision of health care goods or services or any 

medical product affecting interstate commerce, brought in a 

State or Federal court or pursuant to an alternative dispute 

resolution system, against a health care provider, a health care 

organization, or the manufacturer, distributor, supplier, marketer, promoter, or seller of a medical product, regardless of 

the theory of liability on which the claim is based, or the number of claimants, plaintiffs, defendants, or other parties, or the 

number of claims or causes of action, in which the claimant alleges a health care liability claim. Such term does not include 

a claim or action which is based on criminal liability; which 

seeks civil fines or penalties paid to Federal, State, or local 

government; or which is grounded in antitrust. 

(8) HEALTH CARE LIABILITY ACTION.—The term ‘‘health care 

liability action’’ means a civil action brought in a State or Federal Court or pursuant to an alternative dispute resolution system, against a health care provider, a health care organization, 

or the manufacturer, distributor, supplier, marketer, promoter, 

or seller of a medical product, regardless of the theory of liability on which the claim is based, or the number of plaintiffs, deVerDate Jan 31 2003 04:38 Mar 13, 2003 Jkt 085573 PO 00000 Frm 00014 Fmt 6659 Sfmt 6602 E:\HR\OC\HR034.XXX HR034
15

fendants, or other parties, or the number of causes of action, 

in which the claimant alleges a health care liability claim. 

(9) HEALTH CARE LIABILITY CLAIM.—The term ‘‘health care liability claim’’ means a demand by any person, whether or not 

pursuant to ADR, against a health care provider, health care 

organization, or the manufacturer, distributor, supplier, marketer, promoter, or seller of a medical product, including, but 

not limited to, third-party claims, cross-claims, counter-claims, 

or contribution claims, which are based upon the provision of, 

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

for) health care services or medical products, regardless of the 

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

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

causes of action. 

(10) HEALTH CARE ORGANIZATION.—The term ‘‘health care organization’’ means any person or entity which is obligated to 

provide or pay for health benefits under any health plan, including any person or entity acting under a contract or arrangement with a health care organization to provide or administer any health benefit. 

(11) HEALTH CARE PROVIDER.—The term ‘‘health care provider’’ means any person or entity required by State or Federal 

laws or regulations to be licensed, registered, or certified to 

provide health care services, and being either so licensed, registered, or certified, or exempted from such requirement by 

other statute or regulation. 

(12) HEALTH CARE GOODS OR SERVICES.—The term ‘‘health 

care goods or services’’ means any goods or services provided 

by a health care organization, provider, or by any individual 

working under the supervision of a health care provider, that 

relates to the diagnosis, prevention, or treatment of any 

human disease or impairment, or the assessment or care of the 

health of human beings. 

(13) MALICIOUS INTENT TO INJURE.—The term ‘‘malicious intent to injure’’ means intentionally causing or attempting to 

cause physical injury other than providing health care goods or 

services. 

(14) MEDICAL PRODUCT.—The term ‘‘medical product’’ means 

a drug, device, or biological product intended for humans, and 

the terms ‘‘drug’’, ‘‘device’’, and ‘‘biological product’’ have the 

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

the Federal Food, Drug and Cosmetic Act (21 U.S.C. 321) and 

section 351(a) of the Public Health Service Act (42 U.S.C. 

262(a)), respectively, including any component or raw material 

used therein, but excluding health care services. 

(15) NONECONOMIC DAMAGES.—The term ‘‘noneconomic damages’’ means damages for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, 

disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic 

service), hedonic damages, injury to reputation, and all other 

nonpecuniary losses of any kind or nature. 

(16) PUNITIVE DAMAGES.—The term ‘‘punitive damages’’

means damages awarded, for the purpose of punishment or deterrence, and not solely for compensatory purposes, against a 

16

health care provider, health care organization, or a manufacturer, distributor, or supplier of a medical product. Punitive 

damages are neither economic nor noneconomic damages. 

(17) RECOVERY.—The term ‘‘recovery’’ means the net sum recovered after deducting any disbursements or costs incurred in 

connection with prosecution or settlement of the claim, including all costs paid or advanced by any person. Costs of health 

care incurred by the plaintiff and the attorneys’ office overhead 

costs or charges for legal services are not deductible disbursements or costs for such purpose. 

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

States, the District of Columbia, the Commonwealth of Puerto 

Rico, the Virgin Islands, Guam, American Samoa, the Northern Mariana Islands, the Trust Territory of the Pacific Islands, 

and any other territory or possession of the United States, or 

any political subdivision thereof. 

SEC. 10. EFFECT ON OTHER LAWS. 

(a) VACCINE INJURY.—

(1) To the extent that title XXI of the Public Health Service 

Act establishes a Federal rule of law applicable to a civil action 

brought for a vaccine-related injury or death—

(A) this Act does not affect the application of the rule of 

law to such an action; and 

(B) any rule of law prescribed by this Act in conflict with 

a rule of law of such title XXI shall not apply to such action. 

(2) If there is an aspect of a civil action brought for a vaccine-related injury or death to which a Federal rule of law 

under title XXI of the Public Health Service Act does not 

apply, then this Act or otherwise applicable law (as determined 

under this Act) will apply to such aspect of such action. 

(b) OTHER FEDERAL LAW.—Except as provided in this section, 

nothing in this Act shall be deemed to affect any defense available 

to a defendant in a health care lawsuit or action under any other 

provision of Federal law. 

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

(a) HEALTH CARE LAWSUITS.—The provisions governing health 

care lawsuits set forth in this Act preempt, subject to subsections 

(b) and (c), State law to the extent that State law prevents the application of any provisions of law established by or under this Act. 

The provisions governing health care lawsuits set forth in this Act 

supersede chapter 171 of title 28, United States Code, to the extent 

that such chapter—

(1) provides for a greater amount of damages or contingent 

fees, a longer period in which a health care lawsuit may be 

commenced, or a reduced applicability or scope of periodic payment of future damages, than provided in this Act; or 

(2) prohibits the introduction of evidence regarding collateral 

source benefits, or mandates or permits subrogation or a lien 

on collateral source benefits. 

(b) PROTECTION OF STATES’ RIGHTS AND OTHER LAWS.—(1) Any 

issue that is not governed by any provision of law established by 

or under this Act (including State standards of negligence) shall be 

governed by otherwise applicable State or Federal law. 

17

(2) This Act shall not preempt or supersede any State or Federal 

law that imposes greater procedural or substantive protections for 

health care providers and health care organizations from liability, 

loss, or damages than those provided by this Act or create a cause 

of action. 

(c) STATE FLEXIBILITY.—No provision of this Act shall be construed to preempt— (1) any State law (whether effective before, on, or after the 

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

monetary amount of compensatory or punitive damages (or the 

total amount of damages) that may be awarded in a health 

care lawsuit, regardless of whether such monetary amount is 

greater or lesser than is provided for under this Act, notwithstanding section 4(a); or 

(2) any defense available to a party in a health care lawsuit 

under any other provision of State or Federal law. 

SEC. 12. APPLICABILITY; EFFECTIVE DATE. 

This Act shall apply to any health care lawsuit brought in a Federal or State court, or subject to an alternative dispute resolution 

system, that is initiated on or after the date of the enactment of 

this Act, except that any health care lawsuit arising from an injury 

occurring prior to the date of the enactment of this Act shall be 

governed by the applicable statute of limitations provisions in effect 

at the time the injury occurred. 

SEC. 13. SENSE OF CONGRESS. 

It is the sense of Congress that a health insurer should be liable 

for damages for harm caused when it makes a decision as to what 

care is medically necessary and appropriate.

Æ