II 

112TH CONGRESS 

1ST SESSION S. 197 

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 

JANUARY 26, 2011 

Mr. ENSIGN (for himself, Mr. INHOFE, Mr. VITTER, Mr. BURR, Mr. CORNYN, 

and Mr. ALEXANDER) 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 ‘‘Medical Care Access 

5 Protection Act of 2011’’ or the ‘‘MCAP Act’’. 

6 SEC. 2. FINDINGS AND PURPOSE. 

7 (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 GOODS OR SERVICES.—The 

4 term ‘‘health care goods or services’’ means any 

5 goods or services provided by a health care institu6 tion, provider, or by any individual working under 

7 the supervision of a health care provider, that relates 

8 to the diagnosis, prevention, care, or treatment of 

9 any human disease or impairment, or the assessment 

10 of the health of human beings. 

11 (8) HEALTH CARE INSTITUTION.—The term 

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

13 under Federal or State law to provide health care 

14 services (including but not limited to ambulatory 

15 surgical centers, assisted living facilities, emergency 

16 medical services providers, hospices, hospitals and 

17 hospital systems, nursing homes, or other entities li18 censed to provide such services). 

19 (9) HEALTH CARE LAWSUIT.—The term 

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

21 claim concerning the provision of health care goods 

22 or services affecting interstate commerce, or any 

23 health care liability action concerning the provision 

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

25 services affecting interstate commerce, brought in a 


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1 State or Federal court or pursuant to an alternative 

2 dispute resolution system, against a health care pro3 vider or a health care institution regardless of the 

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

5 number of claimants, plaintiffs, defendants, or other 

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

7 in which the claimant alleges a health care liability 

8 claim. 

9 (10) HEALTH CARE LIABILITY ACTION.—The 

10 term ‘‘health care liability action’’ means a civil ac11 tion brought in a State or Federal Court or pursu12 ant to an alternative dispute resolution system, 

13 against a health care provider or a health care insti14 tution regardless of the theory of liability on which 

15 the claim is based, or the number of plaintiffs, de16 fendants, or other parties, or the number of causes 

17 of action, in which the claimant alleges a health care 

18 liability claim. 

19 (11) HEALTH CARE LIABILITY CLAIM.—The 

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

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

22 against a health care provider or health care institu23 tion, including third-party claims, cross-claims, 

24 counter-claims, or contribution claims, which are 

25 based upon the provision of, use of, or payment for 


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1 (or the failure to provide, use, or pay for) health 

2 care services, regardless of the theory of liability on 

3 which the claim is based, or the number of plaintiffs, 

4 defendants, or other parties, or the number of 

5 causes of action. 

6 (12) HEALTH CARE PROVIDER.— 

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

8 provider’’ means any person (including but not 

9 limited to a physician (as defined by section 

10 1861(r) of the Social Security Act (42 U.S.C. 

11 1395x(r)), registered nurse, dentist, podiatrist, 

12 pharmacist, chiropractor, or optometrist) re13 quired by State or Federal law to be licensed, 

14 registered, or certified to provide health care 

15 services, and being either so licensed, reg16 istered, or certified, or exempted from such re17 quirement by other statute or regulation. 

18 (B) TREATMENT OF CERTAIN PROFES19 SIONAL ASSOCIATIONS.—For purposes of this 

20 Act, a professional association that is organized 

21 under State law by an individual physician or 

22 group of physicians, a partnership or limited li23 ability partnership formed by a group of physi24 cians, a nonprofit health corporation certified 

25 under State law, or a company formed by a 


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1 group of physicians under State law shall be 

2 treated as a health care provider under sub3 paragraph (A). 

4 (13) MALICIOUS INTENT TO INJURE.—The 

5 term ‘‘malicious intent to injure’’ means inten6 tionally causing or attempting to cause physical in7 jury other than providing health care goods or serv8 ices. 

9 (14) NONECONOMIC DAMAGES.—The term 

10 ‘‘noneconomic damages’’ means damages for phys11 ical and emotional pain, suffering, inconvenience, 

12 physical impairment, mental anguish, disfigurement, 

13 loss of enjoyment of life, loss of society and compan14 ionship, loss of consortium (other than loss of do15 mestic service), hedonic damages, injury to reputa16 tion, and all other nonpecuniary losses of any kind 

17 or nature. 

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

19 damages’’ means damages awarded, for the purpose 

20 of punishment or deterrence, and not solely for com21 pensatory purposes, against a health care provider 

22 or health care institution. Punitive damages are nei23 ther economic nor noneconomic damages. 

24 (16) RECOVERY.—The term ‘‘recovery’’ means 

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1 ments or costs incurred in connection with prosecu2 tion or settlement of the claim, including all costs 

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

4 incurred by the plaintiff and the attorneys’ office 

5 overhead costs or charges for legal services are not 

6 deductible disbursements or costs for such purpose. 

7 (17) STATE.—The term ‘‘State’’ means each of 

8 the several States, the District of Columbia, the 

9 Commonwealth of Puerto Rico, the Virgin Islands, 

10 Guam, American Samoa, the Northern Mariana Is11 lands, the Trust Territory of the Pacific Islands, and 

12 any other territory or possession of the United 

13 States, or any political subdivision thereof. 

14 SEC. 4. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

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

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

17 care lawsuit shall be 3 years after the date of manifesta18 tion of injury or 1 year after the claimant discovers, or 

19 through the use of reasonable diligence should have discov20 ered, the injury, whichever occurs first. 

21 (b) GENERAL EXCEPTION.—The time for the com22 mencement of a health care lawsuit shall not exceed 3 

23 years after the date of manifestation of injury unless the 

24 tolling of time was delayed as a result of— 

25 (1) fraud; 


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1 (2) intentional concealment; or 

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

3 therapeutic or diagnostic purpose or effect, in the 

4 person of the injured person. 

5 (c) MINORS.—An action by a minor shall be com6 menced within 3 years from the date of the alleged mani7 festation of injury except that if such minor is under the 

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

9 3 years of the manifestation of injury, or prior to the 

10 eighth birthday of the minor, whichever provides a longer 

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

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

13 care provider or health care institution have committed 

14 fraud or collusion in the failure to bring an action on be15 half of the injured minor. 

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

17 State court determines (whether by motion of the parties 

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

19 a violation of Rule 11 of the Federal Rules of Civil Proce20 dure (or a similar violation of applicable State court rules) 

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

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

23 pro se litigants that have violated Rule 11 or are respon24 sible for the violation, an appropriate sanction, which shall 

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


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1 reasonable expenses incurred as a direct result of the filing 

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

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

4 Such sanction shall be sufficient to deter repetition of such 

5 conduct or comparable conduct by others similarly situ6 ated, and to compensate the party or parties injured by 

7 such conduct. 

8 SEC. 5. COMPENSATING PATIENT INJURY. 

9 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

10 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 

11 health care lawsuit, nothing in this Act shall limit the re12 covery by a claimant of the full amount of the available 

13 economic damages, notwithstanding the limitation con14 tained in subsection (b). 

15 (b) ADDITIONAL NONECONOMIC DAMAGES.— 

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

17 care lawsuit where final judgment is rendered 

18 against a health care provider, the amount of non19 economic damages recovered from the provider, if 

20 otherwise available under applicable Federal or State 

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

22 number of parties other than a health care institu23 tion against whom the action is brought or the num24 ber of separate claims or actions brought with re25 spect to the same occurrence. 


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1 (2) HEALTH CARE INSTITUTIONS.— 

2 (A) SINGLE INSTITUTION.—In any health 

3 care lawsuit where final judgment is rendered 

4 against a single health care institution, the 

5 amount of noneconomic damages recovered 

6 from the institution, if otherwise available 

7 under applicable Federal or State law, may be 

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

9 of parties against whom the action is brought 

10 or the number of separate claims or actions 

11 brought with respect to the same occurrence. 

12 (B) MULTIPLE INSTITUTIONS.—In any 

13 health care lawsuit where final judgment is ren14 dered against more than one health care insti15 tution, the amount of noneconomic damages re16 covered from each institution, if otherwise avail17 able under applicable Federal or State law, may 

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

19 number of parties against whom the action is 

20 brought or the number of separate claims or ac21 tions brought with respect to the same occur22 rence, except that the total amount recovered 

23 from all such institutions in such lawsuit shall 

24 not exceed $500,000. 


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1 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

2 DAMAGES.—In any health care lawsuit— 

3 (1) an award for future noneconomic damages 

4 shall not be discounted to present value; 

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

6 maximum award for noneconomic damages under 

7 subsection (b); 

8 (3) an award for noneconomic damages in ex9 cess of the limitations provided for in subsection (b) 

10 shall be reduced either before the entry of judgment, 

11 or by amendment of the judgment after entry of 

12 judgment, and such reduction shall be made before 

13 accounting for any other reduction in damages re14 quired by law; and 

15 (4) if separate awards are rendered for past 

16 and future noneconomic damages and the combined 

17 awards exceed the limitations described in subsection 

18 (b), the future noneconomic damages shall be re19 duced first. 

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

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

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

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

24 damages allocated to such party in direct proportion to 

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1 ment shall be rendered against each such party for the 

2 amount allocated to such party. For purposes of this sec3 tion, the trier of fact shall determine the proportion of 

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

5 SEC. 6. MAXIMIZING PATIENT RECOVERY. 

6 (a) COURT SUPERVISION OF SHARE OF DAMAGES

7 ACTUALLY PAID TO CLAIMANTS.— 

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

9 the court shall supervise the arrangements for pay10 ment of damages to protect against conflicts of in11 terest that may have the effect of reducing the 

12 amount of damages awarded that are actually paid 

13 to claimants. 

14 (2) CONTINGENCY FEES.— 

15 (A) IN GENERAL.—In any health care law16 suit in which the attorney for a party claims a 

17 financial stake in the outcome by virtue of a 

18 contingent fee, the court shall have the power 

19 to restrict the payment of a claimant’s damage 

20 recovery to such attorney, and to redirect such 

21 damages to the claimant based upon the inter22 ests of justice and principles of equity. 

23 (B) LIMITATION.—The total of all contin24 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) Forty percent of the first $50,000 

4 recovered by the claimant(s). 

5 (ii) Thirty-three and one-third percent 

6 of the next $50,000 recovered by the 

7 claimant(s). 

8 (iii) Twenty-five percent of the next 

9 $500,000 recovered by the claimant(s). 

10 (iv) Fifteen percent of any amount by 

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

12 excess of $600,000. 

13 (b) APPLICABILITY.— 

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

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

16 settlement, mediation, arbitration, or any other form 

17 of alternative dispute resolution. 

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

19 a minor or incompetent person, a court retains the 

20 authority to authorize or approve a fee that is less 

21 than the maximum permitted under this section. 

22 (c) EXPERT WITNESSES.— 

23 (1) REQUIREMENT.—No individual shall be 

24 qualified to testify as an expert witness concerning 


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1 issues of negligence in any health care lawsuit 

2 against a defendant unless such individual— 

3 (A) except as required under paragraph 

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

5 (i) is appropriately credentialed or li6 censed in 1 or more States to deliver 

7 health care services; and 

8 (ii) typically treats the diagnosis or 

9 condition or provides the type of treatment 

10 under review; and 

11 (B) can demonstrate by competent evi12 dence that, as a result of training, education, 

13 knowledge, and experience in the evaluation, di14 agnosis, and treatment of the disease or injury 

15 which is the subject matter of the lawsuit 

16 against the defendant, the individual was sub17 stantially familiar with applicable standards of 

18 care and practice as they relate to the act or 

19 omission which is the subject of the lawsuit on 

20 the date of the incident. 

21 (2) PHYSICIAN REVIEW.—In a health care law22 suit, if the claim of the plaintiff involved treatment 

23 that is recommended or provided by a physician 

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

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1 section with respect to issues of negligence con2 cerning such treatment unless such individual is a 

3 physician. 

4 (3) SPECIALTIES AND SUBSPECIALTIES.—With 

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

6 court shall not permit an expert in one medical spe7 cialty or subspecialty to testify against a defendant 

8 in another medical specialty or subspecialty unless, 

9 in addition to a showing of substantial familiarity in 

10 accordance with paragraph (1)(B), there is a show11 ing that the standards of care and practice in the 

12 two specialty or subspecialty fields are similar. 

13 (4) LIMITATION.—The limitations in this sub14 section shall not apply to expert witnesses testifying 

15 as to the degree or permanency of medical or phys16 ical impairment. 

17 SEC. 7. ADDITIONAL HEALTH BENEFITS. 

18 (a) IN GENERAL.—The amount of any damages re19 ceived by a claimant in any health care lawsuit shall be 

20 reduced by the court by the amount of any collateral 

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

22 insurance premiums or other payments made by the claim23 ant (or by the spouse, parent, child, or legal guardian of 

24 the claimant) to obtain or secure such benefits. 


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

2 payor of collateral source benefits has a right of recovery 

3 by reimbursement or subrogation and such right is per4 mitted under Federal or State law, subsection (a) shall 

5 not apply. 

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

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

8 by a fact finder. 

9 SEC. 8. PUNITIVE DAMAGES. 

10 (a) PUNITIVE DAMAGES PERMITTED.— 

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

12 otherwise available under applicable State or Federal 

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

14 lawsuit only if it is proven by clear and convincing 

15 evidence that such person acted with malicious in16 tent to injure the claimant, or that such person de17 liberately failed to avoid unnecessary injury that 

18 such person knew the claimant was substantially 

19 certain to suffer. 

20 (2) FILING OF LAWSUIT.—No demand for puni21 tive damages shall be included in a health care law22 suit as initially filed. A court may allow a claimant 

23 to file an amended pleading for punitive damages 

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1 posing affidavits or after a hearing, after weighing 

2 the evidence, that the claimant has established by a 

3 substantial probability that the claimant will prevail 

4 on the claim for punitive damages. 

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

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

7 shall consider in a separate proceeding— 

8 (A) whether punitive damages are to be 

9 awarded and the amount of such award; and 

10 (B) the amount of punitive damages fol11 lowing a determination of punitive liability. 

12 If a separate proceeding is requested, evidence rel13 evant only to the claim for punitive damages, as de14 termined by applicable State law, shall be inadmis15 sible in any proceeding to determine whether com16 pensatory damages are to be awarded. 

17 (4) LIMITATION WHERE NO COMPENSATORY

18 DAMAGES ARE AWARDED.—In any health care law19 suit where no judgment for compensatory damages 

20 is rendered against a person, no punitive damages 

21 may be awarded with respect to the claim in such 

22 lawsuit against such person. 

23 (b) DETERMINING AMOUNT OF PUNITIVE DAM24 AGES.— 


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1 (1) FACTORS CONSIDERED.—In determining 

2 the amount of punitive damages under this section, 

3 the trier of fact shall consider only the following: 

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

5 conduct of such party; 

6 (B) the duration of the conduct or any 

7 concealment of it by such party; 

8 (C) the profitability of the conduct to such 

9 party; 

10 (D) the number of products sold or med11 ical procedures rendered for compensation, as 

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

13 causing the harm complained of by the claim14 ant; 

15 (E) any criminal penalties imposed on such 

16 party, as a result of the conduct complained of 

17 by the claimant; and 

18 (F) the amount of any civil fines assessed 

19 against such party as a result of the conduct 

20 complained of by the claimant. 

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

22 damages awarded in a health care lawsuit may not 

23 exceed an amount equal to two times the amount of 

24 economic damages awarded in the lawsuit or 

25 $250,000, whichever is greater. The jury shall not 


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1 be informed of the limitation under the preceding 

2 sentence. 

3 (c) LIABILITY OF HEALTH CARE PROVIDERS.— 

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

5 prescribes, or who dispenses pursuant to a prescrip6 tion, a drug, biological product, or medical device 

7 approved by the Food and Drug Administration, for 

8 an approved indication of the drug, biological prod9 uct, or medical device, shall not be named as a party 

10 to a product liability lawsuit invoking such drug, bi11 ological product, or medical device and shall not be 

12 liable to a claimant in a class action lawsuit against 

13 the manufacturer, distributor, or product seller of 

14 such drug, biological product, or medical device. 

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

16 product’’ means a drug or device intended for hu17 mans. The terms ‘‘drug’’ and ‘‘device’’ have the 

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

19 201(h) of the Federal Food, Drug and Cosmetic Act 

20 (21 U.S.C. 321), respectively, including any compo21 nent or raw material used therein, but excluding 

22 health care services. 


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1 SEC. 9. AUTHORIZATION OF PAYMENT OF FUTURE DAM2 AGES TO CLAIMANTS IN HEALTH CARE LAW3 SUITS. 

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

5 award of future damages, without reduction to present 

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

7 party with sufficient insurance or other assets to fund a 

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

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

10 the future damages be paid by periodic payments in ac11 cordance with the Uniform Periodic Payment of Judg12 ments Act promulgated by the National Conference of 

13 Commissioners on Uniform State Laws. 

14 (b) APPLICABILITY.—This section applies to all ac15 tions which have not been first set for trial or retrial be16 fore the effective date of this Act. 

17 SEC. 10. EFFECT ON OTHER LAWS. 

18 (a) GENERAL VACCINE INJURY.— 

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

20 of the Public Health Service Act establishes a Fed21 eral rule of law applicable to a civil action brought 

22 for a vaccine-related injury or death— 

23 (A) this Act shall not affect the application 

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


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

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

3 shall not apply to such action. 

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

5 action brought for a vaccine-related injury or death 

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

7 the Public Health Service Act does not apply, then 

8 this Act or otherwise applicable law (as determined 

9 under this Act) will apply to such aspect of such ac10 tion. 

11 (b) SMALLPOX VACCINE INJURY.— 

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

13 title II of the Public Health Service Act establishes 

14 a Federal rule of law applicable to a civil action 

15 brought for a smallpox vaccine-related injury or 

16 death— 

17 (A) this Act shall not affect the application 

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

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

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

21 shall not apply to such action. 

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

23 action brought for a smallpox vaccine-related injury 

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

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


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•S 197 IS

1 not apply, then this Act or otherwise applicable law 

2 (as determined under this Act) will apply to such as3 pect of such action. 

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

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

6 any defense available, or any limitation on liability that 

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

8 under any other provision of Federal law. 

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

10 RIGHTS. 

11 (a) HEALTH CARE LAWSUITS.—The provisions gov12 erning health care lawsuits set forth in this Act shall pre13 empt, subject to subsections (b) and (c), State law to the 

14 extent that State law prevents the application of any pro15 visions of law established by or under this Act. The provi16 sions governing health care lawsuits set forth in this Act 

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

18 the extent that such chapter— 

19 (1) provides for a greater amount of damages 

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

21 care lawsuit may be commenced, or a reduced appli22 cability or scope of periodic payment of future dam23 ages, than provided in this Act; or 

24 (2) prohibits the introduction of evidence re25 garding collateral source benefits. 


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

2 provision of this Act shall be construed to preempt any 

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

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

5 monetary amount of compensatory or punitive damages 

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

7 in a health care lawsuit, regardless of whether such mone8 tary amount is greater or lesser than is provided for under 

9 this Act, notwithstanding section 5(a). 

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

11 LAWS.— 

12 (1) IN GENERAL.—Any issue that is not gov13 erned by a provision of law established by or under 

14 this Act (including the State standards of neg15 ligence) shall be governed by otherwise applicable 

16 Federal or State law. 

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

18 Act shall be construed to— 

19 (A) preempt or supersede any Federal or 

20 State law that imposes greater procedural or 

21 substantive protections (such as a shorter stat22 ute of limitations) for a health care provider or 

23 health care institution from liability, loss, or 

24 damages than those provided by this Act; 


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1 (B) preempt or supercede any State law 

2 that permits and provides for the enforcement 

3 of any arbitration agreement related to a health 

4 care liability claim whether enacted prior to or 

5 after the date of enactment of this Act; 

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

7 otherwise available under Federal or State law; 

8 or 

9 (D) affect the scope of preemption of any 

10 other Federal law. 

11 SEC. 12. APPLICABILITY; EFFECTIVE DATE. 

12 This Act shall apply to any health care lawsuit 

13 brought in a Federal or State court, or subject to an alter14 native dispute resolution system, that is initiated on or 

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

16 any health care lawsuit arising from an injury occurring 

17 prior to the date of enactment of this Act shall be gov18 erned by the applicable statute of limitations provisions 

19 in effect at the time the injury occurred. 

Æ 


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