II 

112TH CONGRESS 

1ST SESSION S. 218 

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 27, 2011 

Mr. ENSIGN introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

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; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Help Efficient, Accessible, Low-cost, Timely Healthcare 

6 (HEALTH) Act of 2011’’. 

7 (b) TABLE OF CONTENTS.—The table of contents of 

8 this Act is as follows: 


pwalker on DSKD5P82C1PROD with BILLS
2 

•S 218 IS

Sec. 1. Short title; table of contents. 

Sec. 2. Findings and purpose. 

Sec. 3. Encouraging speedy resolution of claims. 

Sec. 4. Compensating patient injury. 

Sec. 5. Maximizing patient recovery. 

Sec. 6. Additional HEALTH benefits. 

Sec. 7. Punitive damages. 

Sec. 8. Authorization of payment of future damages to claimants in HEALTH 

care lawsuits. 

Sec. 9. Definitions. 

Sec. 10. Effect on other laws. 

Sec. 11. State flexibility and protection of States’ rights. 

Sec. 12. Applicability; effective date. 

1 SEC. 2. FINDINGS AND PURPOSE. 

2 (a) FINDINGS.— 

3 (1) EFFECT ON HEALTH CARE ACCESS AND

4 COSTS.—Congress finds that our current civil justice 

5 system is adversely affecting patient access to health 

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

7 health care, in that the health care liability system 

8 is a costly and ineffective mechanism for resolving 

9 claims of health care liability and compensating in10 jured patients, and is a deterrent to the sharing of 

11 information among health care professionals which 

12 impedes efforts to improve patient safety and quality 

13 of care. 

14 (2) EFFECT ON INTERSTATE COMMERCE.— 

15 Congress finds that the health care and insurance 

16 industries are industries affecting interstate com17 merce and the health care liability litigation systems 

18 existing throughout the United States are activities 

19 that affect interstate commerce by contributing to 


pwalker on DSKD5P82C1PROD with BILLS
3 

•S 218 IS

1 the high costs of health care and premiums for 

2 health care liability insurance purchased by health 

3 care system providers. 

4 (3) EFFECT ON FEDERAL SPENDING.—Con5 gress finds that the health care liability litigation 

6 systems existing throughout the United States have 

7 a significant effect on the amount, distribution, and 

8 use of Federal funds because of— 

9 (A) the large number of individuals who 

10 receive health care benefits under programs op11 erated or financed by the Federal Government; 

12 (B) the large number of individuals who 

13 benefit because of the exclusion from Federal 

14 taxes of the amounts spent to provide them 

15 with health insurance benefits; and 

16 (C) the large number of health care pro17 viders who provide items or services for which 

18 the Federal Government makes payments. 

19 (b) PURPOSE.—It is the purpose of this Act to imple20 ment reasonable, comprehensive, and effective health care 

21 liability reforms designed to— 

22 (1) improve the availability of health care serv23 ices in cases in which health care liability actions 

24 have been shown to be a factor in the decreased 

25 availability of services; 


pwalker on DSKD5P82C1PROD with BILLS
4 

•S 218 IS

1 (2) reduce the incidence of ‘‘defensive medi2 cine’’ and lower the cost of health care liability in3 surance, all of which contribute to the escalation of 

4 health care costs; 

5 (3) ensure that persons with meritorious health 

6 care injury claims receive fair and adequate com7 pensation, including reasonable noneconomic dam8 ages; 

9 (4) improve the fairness and cost-effectiveness 

10 of our current health care liability system to resolve 

11 disputes over, and provide compensation for, health 

12 care liability by reducing uncertainty in the amount 

13 of compensation provided to injured individuals; and 

14 (5) provide an increased sharing of information 

15 in the health care system which will reduce unin16 tended injury and improve patient care. 

17 SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

18 The time for the commencement of a health care law19 suit shall be 3 years after the date of manifestation of 

20 injury or 1 year after the claimant discovers, or through 

21 the use of reasonable diligence should have discovered, the 

22 injury, whichever occurs first. In no event shall the time 

23 for commencement of a health care lawsuit exceed 3 years 

24 after the date of manifestation of injury unless tolled for 

25 any of the following— 


pwalker on DSKD5P82C1PROD with BILLS
5 

•S 218 IS

1 (1) upon proof of fraud; 

2 (2) intentional concealment; or 

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

4 therapeutic or diagnostic purpose or effect, in the 

5 person of the injured person. 

6 Actions by a minor shall be commenced within 3 years 

7 from the date of the alleged manifestation of injury except 

8 that actions by a minor under the full age of 6 years shall 

9 be commenced within 3 years of manifestation of injury 

10 or prior to the minor’s 8th birthday, whichever provides 

11 a longer period. Such time limitation shall be tolled for 

12 minors for any period during which a parent or guardian 

13 and a health care provider or health care organization 

14 have committed fraud or collusion in the failure to bring 

15 an action on behalf of the injured minor. 

16 SEC. 4. COMPENSATING PATIENT INJURY. 

17 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

18 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 

19 health care lawsuit, nothing in this Act shall limit a claim20 ant’s recovery of the full amount of the available economic 

21 damages, notwithstanding the limitation in subsection (b). 

22 (b) ADDITIONAL NONECONOMIC DAMAGES.—In any 

23 health care lawsuit, the amount of noneconomic damages, 

24 if available, may be as much as $250,000, regardless of 

25 the number of parties against whom the action is brought 


pwalker on DSKD5P82C1PROD with BILLS
6 

•S 218 IS

1 or the number of separate claims or actions brought with 

2 respect to the same injury. 

3 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

4 DAMAGES.—For purposes of applying the limitation in 

5 subsection (b), future noneconomic damages shall not be 

6 discounted to present value. The jury shall not be in7 formed about the maximum award for noneconomic dam8 ages. An award for noneconomic damages in excess of 

9 $250,000 shall be reduced either before the entry of judg10 ment, or by amendment of the judgment after entry of 

11 judgment, and such reduction shall be made before ac12 counting for any other reduction in damages required by 

13 law. If separate awards are rendered for past and future 

14 noneconomic damages and the combined awards exceed 

15 $250,000, the future noneconomic damages shall be re16 duced first. 

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

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

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

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

21 damages allocated to such party in direct proportion to 

22 such party’s percentage of responsibility. Whenever a 

23 judgment of liability is rendered as to any party, a sepa24 rate judgment shall be rendered against each such party 

25 for the amount allocated to such party. For purposes of 


pwalker on DSKD5P82C1PROD with BILLS
7 

•S 218 IS

1 this section, the trier of fact shall determine the propor2 tion of responsibility of each party for the claimant’s 

3 harm. 

4 SEC. 5. MAXIMIZING PATIENT RECOVERY. 

5 (a) COURT SUPERVISION OF SHARE OF DAMAGES

6 ACTUALLY PAID TO CLAIMANTS.—In any health care law7 suit, the court shall supervise the arrangements for pay8 ment of damages to protect against conflicts of interest 

9 that may have the effect of reducing the amount of dam10 ages awarded that are actually paid to claimants. In par11 ticular, in any health care lawsuit in which the attorney 

12 for a party claims a financial stake in the outcome by vir13 tue of a contingent fee, the court shall have the power 

14 to restrict the payment of a claimant’s damage recovery 

15 to such attorney, and to redirect such damages to the 

16 claimant based upon the interests of justice and principles 

17 of equity. In no event shall the total of all contingent fees 

18 for representing all claimants in a health care lawsuit ex19 ceed the following limits: 

20 (1) Forty percent of the first $50,000 recovered 

21 by the claimant(s). 

22 (2) Thirty-three and one-third percent of the 

23 next $50,000 recovered by the claimant(s). 

24 (3) Twenty-five percent of the next $500,000 

25 recovered by the claimant(s). 


pwalker on DSKD5P82C1PROD with BILLS
8 

•S 218 IS

1 (4) Fifteen percent of any amount by which the 

2 recovery by the claimant(s) is in excess of $600,000. 

3 (b) APPLICABILITY.—The limitations in this section 

4 shall apply whether the recovery is by judgment, settle5 ment, mediation, arbitration, or any other form of alter6 native dispute resolution. In a health care lawsuit involv7 ing a minor or incompetent person, a court retains the 

8 authority to authorize or approve a fee that is less than 

9 the maximum permitted under this section. The require10 ment for court supervision in the first two sentences of 

11 subsection (a) applies only in civil actions. 

12 SEC. 6. ADDITIONAL HEALTH BENEFITS. 

13 In any health care lawsuit involving injury or wrong14 ful death, any party may introduce evidence of collateral 

15 source benefits. If a party elects to introduce such evi16 dence, any opposing party may introduce evidence of any 

17 amount paid or contributed or reasonably likely to be paid 

18 or contributed in the future by or on behalf of the oppos19 ing party to secure the right to such collateral source bene20 fits. No provider of collateral source benefits shall recover 

21 any amount against the claimant or receive any lien or 

22 credit against the claimant’s recovery or be equitably or 

23 legally subrogated to the right of the claimant in a health 

24 care lawsuit involving injury or wrongful death. This sec25 tion shall apply to any health care lawsuit that is settled 


pwalker on DSKD5P82C1PROD with BILLS
9 

•S 218 IS

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

2 finder. This section shall not apply to section 1862(b) (42 

3 U.S.C. 1395y(b)) or section 1902(a)(25) (42 U.S.C. 

4 1396a(a)(25)) of the Social Security Act. 

5 SEC. 7. PUNITIVE DAMAGES. 

6 (a) IN GENERAL.—Punitive damages may, if other7 wise permitted by applicable State or Federal law, be 

8 awarded against any person in a health care lawsuit only 

9 if it is proven by clear and convincing evidence that such 

10 person acted with malicious intent to injure the claimant, 

11 or that such person deliberately failed to avoid unneces12 sary injury that such person knew the claimant was sub13 stantially certain to suffer. In any health care lawsuit 

14 where no judgment for compensatory damages is rendered 

15 against such person, no punitive damages may be awarded 

16 with respect to the claim in such lawsuit. No demand for 

17 punitive damages shall be included in a health care lawsuit 

18 as initially filed. A court may allow a claimant to file an 

19 amended pleading for punitive damages only upon a mo20 tion by the claimant and after a finding by the court, upon 

21 review of supporting and opposing affidavits or after a 

22 hearing, after weighing the evidence, that the claimant has 

23 established by a substantial probability that the claimant 

24 will prevail on the claim for punitive damages. At the reVerDate Mar 15 2010 00:29 Feb 02, 2011 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S218.IS S218

pwalker on DSKD5P82C1PROD with BILLS
10 

•S 218 IS

1 quest of any party in a health care lawsuit, the trier of 

2 fact shall consider in a separate proceeding— 

3 (1) whether punitive damages are to be award4 ed and the amount of such award; and 

5 (2) the amount of punitive damages following a 

6 determination of punitive liability. 

7 If a separate proceeding is requested, evidence relevant 

8 only to the claim for punitive damages, as determined by 

9 applicable State law, shall be inadmissible in any pro10 ceeding to determine whether compensatory damages are 

11 to be awarded. 

12 (b) DETERMINING AMOUNT OF PUNITIVE DAM13 AGES.— 

14 (1) FACTORS CONSIDERED.—In determining 

15 the amount of punitive damages, if awarded, in a 

16 health care lawsuit, the trier of fact shall consider 

17 only the following— 

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

19 conduct of such party; 

20 (B) the duration of the conduct or any 

21 concealment of it by such party; 

22 (C) the profitability of the conduct to such 

23 party; 

24 (D) the number of products sold or med25 ical procedures rendered for compensation, as 


pwalker on DSKD5P82C1PROD with BILLS
11 

•S 218 IS

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

2 causing the harm complained of by the claim3 ant; 

4 (E) any criminal penalties imposed on such 

5 party, as a result of the conduct complained of 

6 by the claimant; and 

7 (F) the amount of any civil fines assessed 

8 against such party as a result of the conduct 

9 complained of by the claimant. 

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

11 damages, if awarded, in a health care lawsuit may 

12 be as much as $250,000 or as much as two times 

13 the amount of economic damages awarded, which14 ever is greater. The jury shall not be informed of 

15 this limitation. 

16 (c) NO PUNITIVE DAMAGES FOR PRODUCTS THAT

17 COMPLY WITH FDA STANDARDS.— 

18 (1) IN GENERAL.— 

19 (A) No punitive damages may be awarded 

20 against the manufacturer or distributor of a 

21 medical product, or a supplier of any compo22 nent or raw material of such medical product, 

23 based on a claim that such product caused the 

24 claimant’s harm where— 


pwalker on DSKD5P82C1PROD with BILLS
12 

•S 218 IS

1 (i)(I) such medical product was sub2 ject to premarket approval, clearance, or li3 censure by the Food and Drug Administra4 tion with respect to the safety of the for5 mulation or performance of the aspect of 

6 such medical product which caused the 

7 claimant’s harm or the adequacy of the 

8 packaging or labeling of such medical 

9 product; and 

10 (II) such medical product was so ap11 proved, cleared, or licensed; or 

12 (ii) such medical product is generally 

13 recognized among qualified experts as safe 

14 and effective pursuant to conditions estab15 lished by the Food and Drug Administra16 tion and applicable Food and Drug Admin17 istration regulations, including without 

18 limitation those related to packaging and 

19 labeling, unless the Food and Drug Admin20 istration has determined that such medical 

21 product was not manufactured or distrib22 uted in substantial compliance with appli23 cable Food and Drug Administration stat24 utes and regulations. 


pwalker on DSKD5P82C1PROD with BILLS
13 

•S 218 IS

1 (B) RULE OF CONSTRUCTION.—Subpara2 graph (A) may not be construed as establishing 

3 the obligation of the Food and Drug Adminis4 tration to demonstrate affirmatively that a 

5 manufacturer, distributor, or supplier referred 

6 to in such subparagraph meets any of the con7 ditions described in such subparagraph. 

8 (2) LIABILITY OF HEALTH CARE PROVIDERS.— 

9 A health care provider who prescribes, or who dis10 penses pursuant to a prescription, a medical product 

11 approved, licensed, or cleared by the Food and Drug 

12 Administration shall not be named as a party to a 

13 product liability lawsuit involving such product and 

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

15 lawsuit against the manufacturer, distributor, or 

16 seller of such product. Nothing in this paragraph 

17 prevents a court from consolidating cases involving 

18 health care providers and cases involving products li19 ability claims against the manufacturer, distributor, 

20 or product seller of such medical product. 

21 (3) PACKAGING.—In a health care lawsuit for 

22 harm which is alleged to relate to the adequacy of 

23 the packaging or labeling of a drug which is required 

24 to have tamper-resistant packaging under regula25 tions of the Secretary of Health and Human ServVerDate Mar 15 2010 00:29 Feb 02, 2011 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S218.IS S218

pwalker on DSKD5P82C1PROD with BILLS
14 

•S 218 IS

1 ices (including labeling regulations related to such 

2 packaging), the manufacturer or product seller of 

3 the drug shall not be held liable for punitive dam4 ages unless such packaging or labeling is found by 

5 the trier of fact by clear and convincing evidence to 

6 be substantially out of compliance with such regula7 tions. 

8 (4) EXCEPTION.—Paragraph (1) shall not 

9 apply in any health care lawsuit in which— 

10 (A) a person, before or after premarket ap11 proval, clearance, or licensure of such medical 

12 product, knowingly misrepresented to or with13 held from the Food and Drug Administration 

14 information that is required to be submitted 

15 under the Federal Food, Drug, and Cosmetic 

16 Act (21 U.S.C. 301 et seq.) or section 351 of 

17 the Public Health Service Act (42 U.S.C. 262) 

18 that is material and is causally related to the 

19 harm which the claimant allegedly suffered; or 

20 (B) a person made an illegal payment to 

21 an official of the Food and Drug Administra22 tion for the purpose of either securing or main23 taining approval, clearance, or licensure of such 

24 medical product. 


pwalker on DSKD5P82C1PROD with BILLS
15 

•S 218 IS

1 SEC. 8. 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. 9. DEFINITIONS. 

18 In this Act: 

19 (1) ALTERNATIVE DISPUTE RESOLUTION SYS20 TEM; ADR.—The term ‘‘alternative dispute resolution 

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

22 for the resolution of health care lawsuits in a man23 ner other than through a civil action brought in a 

24 State or Federal court. 

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

26 any person who brings a health care lawsuit, includVerDate Mar 15 2010 00:29 Feb 02, 2011 Jkt 099200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\S218.IS S218

pwalker on DSKD5P82C1PROD with BILLS
16 

•S 218 IS

1 ing a person who asserts or claims a right to legal 

2 or equitable contribution, indemnity, or subrogation, 

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

4 and any person on whose behalf such a claim is as5 serted or such an action is brought, whether de6 ceased, incompetent, or a minor. 

7 (3) COLLATERAL SOURCE BENEFITS.—The 

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

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

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

11 or other benefit provided or reasonably likely to be 

12 provided in the future to or on behalf of the claim13 ant, as a result of the injury or wrongful death, pur14 suant to— 

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

16 income-disability, accident, or workers’ com17 pensation law; 

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

19 or accident insurance that provides health bene20 fits or income-disability coverage; 

21 (C) any contract or agreement of any 

22 group, organization, partnership, or corporation 

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

24 medical, hospital, dental, or income-disability 

25 benefits; and 


pwalker on DSKD5P82C1PROD with BILLS
17 

•S 218 IS

1 (D) any other publicly or privately funded 

2 program. 

3 (4) COMPENSATORY DAMAGES.—The term 

4 ‘‘compensatory damages’’ means objectively 

5 verifiable monetary losses incurred as a result of the 

6 provision of, use of, or payment for (or failure to 

7 provide, use, or pay for) health care services or med8 ical products, such as past and future medical ex9 penses, loss of past and future earnings, cost of ob10 taining domestic services, loss of employment, and 

11 loss of business or employment opportunities, dam12 ages for physical and emotional pain, suffering, in13 convenience, physical impairment, mental anguish, 

14 disfigurement, loss of enjoyment of life, loss of soci15 ety and companionship, loss of consortium (other 

16 than loss of domestic service), hedonic damages, in17 jury to reputation, and all other nonpecuniary losses 

18 of any kind or nature. The term ‘‘compensatory 

19 damages’’ includes economic damages and non20 economic damages, as such terms are defined in this 

21 section. 

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

23 fee’’ includes all compensation to any person or per24 sons which is payable only if a recovery is effected 

25 on behalf of one or more claimants. 


pwalker on DSKD5P82C1PROD with BILLS
18 

•S 218 IS

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

2 damages’’ means objectively verifiable monetary 

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

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

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

6 past and future medical expenses, loss of past and 

7 future earnings, cost of obtaining domestic services, 

8 loss of employment, and loss of business or employ9 ment opportunities. 

10 (7) HEALTH CARE LAWSUIT.—The term 

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

12 claim concerning the provision of health care goods 

13 or services or any medical product affecting inter14 state commerce, or any health care liability action 

15 concerning the provision of health care goods or 

16 services or any medical product affecting interstate 

17 commerce, brought in a State or Federal court or 

18 pursuant to an alternative dispute resolution system, 

19 against a health care provider, a health care organi20 zation, or the manufacturer, distributor, supplier, 

21 marketer, promoter, or seller of a medical product, 

22 regardless of the theory of liability on which the 

23 claim is based, or the number of claimants, plain24 tiffs, defendants, or other parties, or the number of 

25 claims or causes of action, in which the claimant alVerDate Mar 15 2010 00:29 Feb 02, 2011 Jkt 099200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S218.IS S218

pwalker on DSKD5P82C1PROD with BILLS
19 

•S 218 IS

1 leges a health care liability claim. Such term does 

2 not include a claim or action which is based on 

3 criminal liability; which seeks civil fines or penalties 

4 paid to Federal, State, or local government; or which 

5 is grounded in antitrust. 

6 (8) HEALTH CARE LIABILITY ACTION.—The 

7 term ‘‘health care liability action’’ means a civil ac8 tion brought in a State or Federal court or pursuant 

9 to an alternative dispute resolution system, against 

10 a health care provider, a health care organization, or 

11 the manufacturer, distributor, supplier, marketer, 

12 promoter, or seller of a medical product, regardless 

13 of the theory of liability on which the claim is based, 

14 or the number of plaintiffs, defendants, or other par15 ties, or the number of causes of action, in which the 

16 claimant alleges a health care liability claim. 

17 (9) HEALTH CARE LIABILITY CLAIM.—The 

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

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

20 against a health care provider, health care organiza21 tion, or the manufacturer, distributor, supplier, mar22 keter, promoter, or seller of a medical product, in23 cluding, but not limited to, third-party claims, cross24 claims, counter-claims, or contribution claims, which 

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


pwalker on DSKD5P82C1PROD with BILLS
20 

•S 218 IS

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

2 care services or medical products, regardless of the 

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

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

5 the number of causes of action. 

6 (10) HEALTH CARE ORGANIZATION.—The term 

7 ‘‘health care organization’’ means any person or en8 tity which is obligated to provide or pay for health 

9 benefits under any health plan, including any person 

10 or entity acting under a contract or arrangement 

11 with a health care organization to provide or admin12 ister any health benefit. 

13 (11) HEALTH CARE PROVIDER.—The term 

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

15 required by State or Federal laws or regulations to 

16 be licensed, registered, or certified to provide health 

17 care services, and being either so licensed, reg18 istered, or certified, or exempted from such require19 ment by other statute or regulation. 

20 (12) HEALTH CARE GOODS OR SERVICES.—The 

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

22 goods or services provided by a health care organiza23 tion, provider, or by any individual working under 

24 the supervision of a health care provider, that relates 

25 to the diagnosis, prevention, or treatment of any 


pwalker on DSKD5P82C1PROD with BILLS
21 

•S 218 IS

1 human disease or impairment, or the assessment or 

2 care of the health of human beings. 

3 (13) MALICIOUS INTENT TO INJURE.—The 

4 term ‘‘malicious intent to injure’’ means inten5 tionally causing or attempting to cause physical in6 jury other than providing health care goods or serv7 ices. 

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

9 product’’ means a drug, device, or biological product 

10 intended for humans, and the terms ‘‘drug’’, ‘‘de11 vice’’, and ‘‘biological product’’ have the meanings 

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

13 of the Federal Food, Drug and Cosmetic Act (21 

14 U.S.C. 321(g)(1) and (h)) and section 351(a) of the 

15 Public Health Service Act (42 U.S.C. 262(a)), re16 spectively, including any component or raw material 

17 used therein, but excluding health care services. 

18 (15) NONECONOMIC DAMAGES.—The term 

19 ‘‘noneconomic damages’’ means damages for phys20 ical and emotional pain, suffering, inconvenience, 

21 physical impairment, mental anguish, disfigurement, 

22 loss of enjoyment of life, loss of society and compan23 ionship, loss of consortium (other than loss of do24 mestic service), hedonic damages, injury to reputaVerDate Mar 15 2010 00:29 Feb 02, 2011 Jkt 099200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S218.IS S218

pwalker on DSKD5P82C1PROD with BILLS
22 

•S 218 IS

1 tion, and all other nonpecuniary losses of any kind 

2 or nature. 

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

4 damages’’ means damages awarded, for the purpose 

5 of punishment or deterrence, and not solely for com6 pensatory purposes, against a health care provider, 

7 health care organization, or a manufacturer, dis8 tributor, or supplier of a medical product. Punitive 

9 damages are neither economic nor noneconomic 

10 damages. 

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

12 the net sum recovered after deducting any disburse13 ments or costs incurred in connection with prosecu14 tion or settlement of the claim, including all costs 

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

16 incurred by the plaintiff and the attorneys’ office 

17 overhead costs or charges for legal services are not 

18 deductible disbursements or costs for such purpose. 

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

20 the several States, the District of Columbia, the 

21 Commonwealth of Puerto Rico, the Virgin Islands, 

22 Guam, American Samoa, the Northern Mariana Is23 lands, the Trust Territory of the Pacific Islands, and 

24 any other territory or possession of the United 

25 States, or any political subdivision thereof. 


pwalker on DSKD5P82C1PROD with BILLS
23 

•S 218 IS

1 SEC. 10. EFFECT ON OTHER LAWS. 

2 (a) VACCINE INJURY.— 

3 (1) To the extent that title XXI of the Public 

4 Health Service Act establishes a Federal rule of law 

5 applicable to a civil action brought for a vaccine-re6 lated injury or death— 

7 (A) this Act does not affect the application 

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

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

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

11 shall not apply to such action. 

12 (2) If there is an aspect of a civil action 

13 brought for a vaccine-related injury or death to 

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

15 Public Health Service Act does not apply, then this 

16 Act or otherwise applicable law (as determined 

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

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

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

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

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

24 RIGHTS. 

25 (a) HEALTH CARE LAWSUITS.—The provisions gov26 erning health care lawsuits set forth in this Act preempt, 


pwalker on DSKD5P82C1PROD with BILLS
24 

•S 218 IS

1 subject to subsections (b) and (c), State law to the extent 

2 that State law prevents the application of any provisions 

3 of law established by or under this Act. The provisions 

4 governing health care lawsuits set forth in this Act super5 sede chapter 171 of title 28, United States Code, to the 

6 extent that such chapter— 

7 (1) provides for a greater amount of damages 

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

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

12 (2) prohibits the introduction of evidence re13 garding collateral source benefits, or mandates or 

14 permits subrogation or a lien on collateral source 

15 benefits. 

16 (b) PROTECTION OF STATES’ RIGHTS AND OTHER

17 LAWS.—(1) Any issue that is not governed by any provi18 sion of law established by or under this Act (including 

19 State standards of negligence) shall be governed by other20 wise applicable State or Federal law. 

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

22 or Federal law that imposes greater procedural or sub23 stantive protections for health care providers and health 

24 care organizations from liability, loss, or damages than 

25 those provided by this Act or create a cause of action. 


pwalker on DSKD5P82C1PROD with BILLS
25 

•S 218 IS

1 (c) STATE FLEXIBILITY.—No provision of this Act 

2 shall be construed to preempt— 

3 (1) any State law (whether effective before, on, 

4 or after the date of the enactment of this Act) that 

5 specifies a particular monetary amount of compen6 satory or punitive damages (or the total amount of 

7 damages) that may be awarded in a health care law8 suit, regardless of whether such monetary amount is 

9 greater or lesser than is provided for under this Act, 

10 notwithstanding section 4(a); or 

11 (2) any defense available to a party in a health 

12 care lawsuit under any other provision of State or 

13 Federal law. 

14 SEC. 12. APPLICABILITY; EFFECTIVE DATE. 

15 This Act shall apply to any health care lawsuit 

16 brought in a Federal or State court, or subject to an alter17 native dispute resolution system, that is initiated on or 

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

19 any health care lawsuit arising from an injury occurring 

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

21 governed by the applicable statute of limitations provisions 

22 in effect at the time the injury occurred. 

Æ 


pwalker on DSKD5P82C1PROD with BILLS