I 

111TH CONGRESS 

1ST SESSION H. R. 1468 

To provide health care liability reform, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 12, 2009 

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

Committee on the Judiciary 

A BILL 

To provide health care liability reform, and for other 

purposes. 

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 ‘‘Medical Justice Act of 2009’’. 

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

7 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Cap on non-economic damages against health care practitioners. 

Sec. 3. Cap on non-economic damages against health care institutions. 

Sec. 4. Cap, in wrongful death cases, on total damages against any single 

health care practitioner. 

Sec. 5. Limitation of insurer liability when insurer rejects certain settlement offers. 

Sec. 6. Mandatory jury instruction on cap on damages. 


wwoods2 on PRODPC68 with BILLS
2 

•HR 1468 IH

Sec. 7. Determination of negligence; mandatory jury instruction. 

Sec. 8. Expert reports required to be served in civil actions. 

Sec. 9. Expert opinions relating to physicians may be provided only by actively 

practicing physicians. 

Sec. 10. Payment of future damages on periodic or accrual basis. 

Sec. 11. Unanimous jury required for punitive or exemplary damages. 

Sec. 12. Proportionate liability. 

Sec. 13. Defense-initiated settlement process. 

Sec. 14. Statute of limitations; statute of repose. 

Sec. 15. Limitation on liability for Good Samaritans providing emergency 

health care. 

Sec. 16. Definitions. 

1 SEC. 2. CAP ON NON-ECONOMIC DAMAGES AGAINST 

2 HEALTH CARE PRACTITIONERS. 

3 When an individual is injured or dies as the result 

4 of health care, a person entitled to non-economic damages 

5 may not recover, from the class of liable health care practi6 tioners (regardless of the theory of liability), more than 

7 $250,000 such damages. 

8 SEC. 3. CAP ON NON-ECONOMIC DAMAGES AGAINST 

9 HEALTH CARE INSTITUTIONS. 

10 When an individual is injured or dies as the result 

11 of health care, a person entitled to non-economic damages 

12 may not recover— 

13 (1) from any single liable health care institution 

14 (regardless of the theory of liability), more than 

15 $250,000 such damages; and 

16 (2) from the class of liable health care institu17 tions (regardless of the theory of liability), more 

18 than $500,000 such damages. 


wwoods2 on PRODPC68 with BILLS
3 

•HR 1468 IH

1 SEC. 4. CAP, IN WRONGFUL DEATH CASES, ON TOTAL DAM2 AGES AGAINST ANY SINGLE HEALTH CARE 

3 PRACTITIONER. 

4 (a) IN GENERAL.—When an individual dies as the 

5 result of health care, a person entitled to damages may 

6 not recover, from any single liable health care practitioner 

7 (regardless of the theory of liability), more than 

8 $1,400,000 in total damages. 

9 (b) TOTAL DAMAGES DEFINED.—In this section, the 

10 term ‘‘total damages’’ includes compensatory damages, 

11 punitive damages, statutory damages, and any other type 

12 of damages. 

13 (c) ADJUSTMENT FOR INFLATION.—For each cal14 endar year after the calendar year of the enactment of 

15 this Act, the dollar amount referred to in subsection (a) 

16 shall be adjusted to reflect changes in the Consumer Price 

17 Index of the Bureau of Labor Statistics of the Department 

18 of Labor. The adjustment shall be based on the relation19 ship between— 

20 (1) the Consumer Price Index data most re21 cently published as of January 1 of the calendar 

22 year of the enactment of this Act; and 

23 (2) the Consumer Price Index data most re24 cently published as of January 1 of the calendar 

25 year concerned. 


wwoods2 on PRODPC68 with BILLS
4 

•HR 1468 IH

1 (d) APPLICABILITY OF ADJUSTMENT.—The dollar 

2 amount that applies to a recovery is the dollar amount 

3 for the calendar year during which the amount of the re4 covery is made final. 

5 SEC. 5. LIMITATION OF INSURER LIABILITY WHEN IN6 SURER REJECTS CERTAIN SETTLEMENT OF7 FERS. 

8 In a civil action, to the extent the civil action seeks 

9 damages for the injury or death of an individual as the 

10 result of health care, when the insurer of a health care 

11 practitioner or health care institution rejects a reasonable 

12 settlement offer within policy limits, the insurer is not, by 

13 reason of that rejection, liable for damages in an amount 

14 that exceeds the liability of the insured. 

15 SEC. 6. MANDATORY JURY INSTRUCTION ON CAP ON DAM16 AGES. 

17 In a civil action tried to a jury, to the extent the civil 

18 action seeks damages for the injury or death of an indi19 vidual as the result of health care, the court shall instruct 

20 the jury that the jury is not to consider whether, or to 

21 what extent, a limitation on damages applies. 


wwoods2 on PRODPC68 with BILLS
5 

•HR 1468 IH

1 SEC. 7. DETERMINATION OF NEGLIGENCE; MANDATORY 

2 JURY INSTRUCTION. 

3 (a) IN GENERAL.—When an individual is injured or 

4 dies as the result of health care, liability for negligence 

5 may not be based solely on a bad result. 

6 (b) MANDATORY JURY INSTRUCTION.—In a civil ac7 tion tried to a jury, to the extent the civil action seeks 

8 damages for the injury or death of an individual as the 

9 result of health care and alleges liability for negligence, 

10 the court shall instruct the jury as provided in subsection 

11 (a). 

12 SEC. 8. EXPERT REPORTS REQUIRED TO BE SERVED IN 

13 CIVIL ACTIONS. 

14 (a) SERVICE REQUIRED.—To the extent a pleading 

15 filed in a civil action seeks damages against a health care 

16 practitioner for the injury or death of an individual as the 

17 result of health care, the party filing the pleading shall, 

18 not later than 120 days after the date on which the plead19 ing was filed, serve on each party against whom such dam20 ages are sought a qualified expert report. 

21 (b) QUALIFIED EXPERT REPORT.—As used in sub22 section (a), a qualified expert report is a written report 

23 of a qualified health care expert that— 

24 (1) includes a curriculum vitae for that expert; 

25 and 


wwoods2 on PRODPC68 with BILLS
6 

•HR 1468 IH

1 (2) sets forth a summary of the expert opinion 

2 of that expert as to— 

3 (A) the standard of care applicable to that 

4 practitioner; 

5 (B) how that practitioner failed to meet 

6 that standard of care; and 

7 (C) the causal relationship between that 

8 failure and the injury or death of the individual. 

9 (c) MOTION TO ENFORCE.—A party not served as 

10 required by subsection (a) may move the court to enforce 

11 that subsection. On such a motion, the court— 

12 (1) shall dismiss, with prejudice, the pleading 

13 as it relates to that party; and 

14 (2) shall award to that party the attorney fees 

15 reasonably incurred by that party to respond to that 

16 pleading. 

17 (d) USE OF EXPERT REPORT.— 

18 (1) IN GENERAL.—Except as otherwise pro19 vided in this section, a qualified expert report served 

20 under subsection (a) may not, in that civil action— 

21 (A) be offered by any party as evidence; 

22 (B) be used by any party in discovery or 

23 any other pretrial proceeding; or 

24 (C) be referred to by any party at trial. 

25 (2) VIOLATIONS.— 


wwoods2 on PRODPC68 with BILLS
7 

•HR 1468 IH

1 (A) BY OTHER PARTY.—If paragraph (1) 

2 is violated by a party other than the party who 

3 served the report, the court shall, on motion of 

4 any party or on its own motion, take such 

5 measures as the court considers appropriate, 

6 which may include the imposition of sanctions. 

7 (B) BY SERVING PARTY.—If paragraph (1) 

8 is violated by the party who served the report, 

9 paragraph (1) shall no longer apply to any 

10 party. 

11 SEC. 9. EXPERT OPINIONS RELATING TO PHYSICIANS MAY 

12 BE PROVIDED ONLY BY ACTIVELY PRAC13 TICING PHYSICIANS. 

14 (a) IN GENERAL.—A physician-related opinion may 

15 be provided only by an actively practicing physician who 

16 is determined by the court to be qualified on the basis 

17 of training and experience to render that opinion. 

18 (b) CONSIDERATIONS REQUIRED.—In determining 

19 whether an actively practicing physician is qualified under 

20 subsection (a), the court shall, except on good cause 

21 shown, consider whether that physician is board-certified, 

22 or has other substantial training, in an area of medical 

23 practice relevant to the health care to which the opinion 

24 relates. 

25 (c) DEFINITIONS.—In this section: 


wwoods2 on PRODPC68 with BILLS
8 

•HR 1468 IH

1 (1) The term ‘‘actively practicing physician’’ 

2 means an individual who— 

3 (A) is licensed to practice medicine in the 

4 United States or, if the individual is a defend5 ant providing a physician-related opinion with 

6 respect to the health care provided by that de7 fendant, is a graduate of a medical school ac8 credited by the Liaison Committee on Medical 

9 Education or the American Osteopathic Asso10 ciation; 

11 (B) is practicing medicine when the opin12 ion is rendered, or was practicing medicine 

13 when the health care was provided; and 

14 (C) has knowledge of the accepted stand15 ards of care for the health care to which the 

16 opinion relates. 

17 (2) The term ‘‘physician-related opinion’’ means 

18 an expert opinion as to any one or more of the fol19 lowing: 

20 (A) The standard of care applicable to a 

21 physician. 

22 (B) Whether a physician failed to meet 

23 such a standard of care. 


wwoods2 on PRODPC68 with BILLS
9 

•HR 1468 IH

1 (C) Whether there was a causal relation2 ship between such a failure by a physician and 

3 the injury or death of an individual. 

4 (3) The term ‘‘practicing medicine’’ includes 

5 training residents or students at an accredited 

6 school of medicine or osteopathy, and serving as a 

7 consulting physician to other physicians who provide 

8 direct patient care. 

9 SEC. 10. PAYMENT OF FUTURE DAMAGES ON PERIODIC OR 

10 ACCRUAL BASIS. 

11 (a) IN GENERAL.—When future damages are award12 ed against a health care practitioner to a person for the 

13 injury or death of an individual as a result of health care, 

14 and the present value of those future damages is $100,000 

15 or more, that health care practitioner may move that the 

16 court order payment on a periodic or accrual basis of those 

17 damages. On such a motion, the court— 

18 (1) shall order that payment be made on an ac19 crual basis of future damages described in sub20 section (b)(1); and 

21 (2) may order that payment be made on a peri22 odic or accrual basis of any other future damages 

23 that the court considers appropriate. 

24 (b) FUTURE DAMAGES DEFINED.—In this section, 

25 the term ‘‘future damages’’ means— 


wwoods2 on PRODPC68 with BILLS
10 

•HR 1468 IH

1 (1) the future costs of medical, health care, or 

2 custodial services; 

3 (2) noneconomic damages, such as pain and 

4 suffering or loss of consortium; 

5 (3) loss of future earnings; and 

6 (4) any other damages incurred after the award 

7 is made. 

8 SEC. 11. UNANIMOUS JURY REQUIRED FOR PUNITIVE OR 

9 EXEMPLARY DAMAGES. 

10 When an individual is injured or dies as the result 

11 of health care, a jury may not award punitive or exemplary 

12 damages against a health care practitioner or health care 

13 institution unless the jury is unanimous with regard to 

14 both the liability of that party for such damages and the 

15 amount of the award of such damages. 

16 SEC. 12. PROPORTIONATE LIABILITY. 

17 When an individual is injured or dies as the result 

18 of health care and a person is entitled to damages for that 

19 injury or death, each person responsible is liable only for 

20 a proportionate share of the total damages that directly 

21 corresponds to that person’s proportionate share of the 

22 total responsibility. 

23 SEC. 13. DEFENSE-INITIATED SETTLEMENT PROCESS. 

24 (a) IN GENERAL.—In a civil action, to the extent the 

25 civil action seeks damages for the injury or death of an 


wwoods2 on PRODPC68 with BILLS
11 

•HR 1468 IH

1 individual as the result of health care, a health care practi2 tioner or health care institution against which such dam3 ages are sought may serve one or more qualified settle4 ment offers under this section to a person seeking such 

5 damages. If the person seeking such damages does not ac6 cept such an offer, that person may thereafter serve one 

7 or more qualified settlement offers under this section to 

8 the party whose offer was not accepted. 

9 (b) QUALIFIED SETTLEMENT OFFER.—A qualified 

10 settlement offer under this section is an offer, in writing, 

11 to settle the matter as between the offeror and the offeree, 

12 which— 

13 (1) specifies that it is made under this section; 

14 (2) states the terms of settlement; and 

15 (3) states the deadline within which the offer 

16 must be accepted. 

17 (c) EFFECT OF OFFER.—If the offeree of a qualified 

18 settlement offer does not accept that offer, and thereafter 

19 receives a judgment at trial that, as between the offeror 

20 and the offeree, is significantly less favorable than the 

21 terms of settlement in that offer, that offeree is respon22 sible for those litigation costs reasonably incurred, after 

23 the deadline stated in the offer, by the offeror to respond 

24 to the claims of the offeree. 


wwoods2 on PRODPC68 with BILLS
12 

•HR 1468 IH

1 (d) LITIGATION COSTS DEFINED.—In this section, 

2 the term ‘‘litigation costs’’ include court costs, filing fees, 

3 expert witness fees, attorney fees, and any other costs di4 rectly related to carrying out the litigation. 

5 (e) SIGNIFICANTLY LESS FAVORABLE DEFINED.— 

6 For purposes of this section, a judgment is significantly 

7 less favorable than the terms of settlement if— 

8 (1) in the case of an offeree seeking damages, 

9 the offeree’s award at trial is less than 80 percent 

10 of the value of the terms of settlement; and 

11 (2) in the case of an offeree against whom dam12 ages are sought, the offeror’s award at trial is more 

13 than 120 percent of the value of the terms of settle14 ment. 

15 SEC. 14. STATUTE OF LIMITATIONS; STATUTE OF REPOSE. 

16 (a) STATUTE OF LIMITATIONS.—When an individual 

17 is injured or dies as the result of health care, the statute 

18 of limitations shall be as follows: 

19 (1) INDIVIDUALS OF AGE 12 AND OVER.—If the 

20 individual has attained the age of 12 years, the 

21 claim must be brought either— 

22 (A) within 2 years after the negligence oc23 curred; or 

24 (B) within 2 years after the health care on 

25 which the claim is based is completed. 


wwoods2 on PRODPC68 with BILLS
13 

•HR 1468 IH

1 (2) INDIVIDUALS UNDER AGE 12.—If the indi2 vidual has not attained the age of 12 years, the 

3 claim must be brought before the individual attains 

4 the age of 14 years. 

5 (b) STATUTE OF REPOSE.—When an individual is in6 jured or dies as the result of health care, the statute of 

7 repose shall be as follows: The claim must be brought 

8 within 10 years after the act or omission on which the 

9 claim is based is completed. 

10 (c) TOLLING.— 

11 (1) STATUTE OF LIMITATIONS.—The statute of 

12 limitations required by subsection (a) may be tolled 

13 if applicable law so provides, except that it may not 

14 be tolled on the basis of minority. 

15 (2) STATUTE OF REPOSE.—The statute of 

16 repose required by subsection (b) may not be tolled 

17 for any reason. 

18 SEC. 15. LIMITATION ON LIABILITY FOR GOOD SAMARI19 TANS PROVIDING EMERGENCY HEALTH 

20 CARE. 

21 (a) WILLFUL OR WANTON NEGLIGENCE RE22 QUIRED.—A health care practitioner or health care insti23 tution that provides emergency health care on a Good Sa24 maritan basis is not liable for damages caused by that care 


wwoods2 on PRODPC68 with BILLS
14 

•HR 1468 IH

1 except for willful or wanton negligence or more culpable 

2 misconduct. 

3 (b) GOOD SAMARITAN BASIS.—For purposes of this 

4 section, care is provided on a Good Samaritan basis if it 

5 is not provided for or in expectation of remuneration. 

6 Being entitled to remuneration is relevant to, but is not 

7 determinative of, whether it is provided for or in expecta8 tion of remuneration. 

9 SEC. 16. DEFINITIONS. 

10 In this Act: 

11 (1) HEALTH CARE INSTITUTION.—The term 

12 ‘‘health care institution’’ includes institutions such 

13 as— 

14 (A) an ambulatory surgical center; 

15 (B) an assisted living facility; 

16 (C) an emergency medical services pro17 vider; 

18 (D) a home health agency; 

19 (E) a hospice; 

20 (F) a hospital; 

21 (G) a hospital system; 

22 (H) an intermediate care facility for the 

23 mentally retarded; 

24 (I) a nursing home; and 

25 (J) an end stage renal disease facility. 


wwoods2 on PRODPC68 with BILLS
15 

•HR 1468 IH

1 (2) HEALTH CARE PRACTITIONER.—The term 

2 ‘‘health care practitioner’’ includes a physician and 

3 a physician entity. 

4 (3) PHYSICIAN ENTITY.—The term ‘‘physician 

5 entity’’ includes— 

6 (A) a partnership or limited liability part7 nership created by a group of physicians; 

8 (B) a company created by physicians; and 

9 (C) a nonprofit health corporation whose 

10 board is composed of physicians. 

Æ 


wwoods2 on PRODPC68 with BILLS