IIB 

115TH CONGRESS 

1ST SESSION H. R. 1215 

IN THE SENATE OF THE UNITED STATES 

JUNE 29, 2017 

Received; read twice and referred to the Committee on the Judiciary 

AN ACT 

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, 


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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

3 ‘‘Protecting Access to Care Act of 2017’’. 

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

5 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Encouraging speedy resolution of claims. 

Sec. 3. Compensating patient injury. 

Sec. 4. Maximizing patient recovery. 

Sec. 5. Authorization of payment of future damages to claimants in health care 

lawsuits. 

Sec. 6. Product liability for health care providers. 

Sec. 7. Definitions. 

Sec. 8. Effect on other laws. 

Sec. 9. Rules of construction. 

Sec. 10. Effective date. 

Sec. 11. Limitation on expert witness testimony. 

Sec. 12. Communications following unanticipated outcome. 

Sec. 13. Expert witness qualifications. 

Sec. 14. Affidavit of merit. 

Sec. 15. Notice of intent to commence lawsuit. 

6 SEC. 2. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

7 (a) STATUTE OF LIMITATIONS.— 

8 (1) IN GENERAL.—Except as provided in para9 graph (2), the time for the commencement of a 

10 health care lawsuit shall be, whichever occurs first of 

11 the following: 

12 (A) 3 years after the date of the occur13 rence of the breach or tort; 

14 (B) 3 years after the date the medical or 

15 health care treatment that is the subject of the 

16 claim is completed; or 


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1 (C) 1 year after the claimant discovers, or 

2 through the use of reasonable diligence should 

3 have discovered, the injury. 

4 (2) TOLLING.—In no event shall the time for 

5 commencement of a health care lawsuit exceed 3 

6 years after the date of the occurrence of the breach 

7 or tort or 3 years after the date the medical or 

8 health care treatment that is the subject of the claim 

9 is completed (whichever occurs first) unless tolled 

10 for any of the following— 

11 (A) upon proof of fraud; 

12 (B) intentional concealment; or 

13 (C) the presence of a foreign body, which 

14 has no therapeutic or diagnostic purpose or ef15 fect, in the person of the injured person. 

16 (3) ACTIONS BY A MINOR.—Actions by a minor 

17 shall be commenced within 3 years after the date of 

18 the occurrence of the breach or tort or 3 years after 

19 the date of the medical or health care treatment that 

20 is the subject of the claim is completed (whichever 

21 occurs first) except that actions by a minor under 

22 the full age of 6 years shall be commenced within 3 

23 years after the date of the occurrence of the breach 

24 or tort, 3 years after the date of the medical or 

25 health care treatment that is the subject of the claim 


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1 is completed, or 1 year after the injury is discovered, 

2 or through the use of reasonable diligence should 

3 have been discovered, or prior to the minor’s 8th 

4 birthday, whichever provides a longer period. Such 

5 time limitation shall be tolled for minors for any pe6 riod during which a parent or guardian and a health 

7 care provider have committed fraud or collusion in 

8 the failure to bring an action on behalf of the in9 jured minor. 

10 (b) STATE FLEXIBILITY.—No provision of subsection 

11 (a) shall be construed to preempt any state law (whether 

12 effective before, on, or after the date of the enactment of 

13 this Act) that— 

14 (1) specifies a time period of less than 3 years 

15 after the date of injury or less than 1 year after the 

16 claimant discovers, or through the use of reasonable 

17 diligence should have discovered, the injury, for the 

18 filing of a health care lawsuit; 

19 (2) that specifies a different time period for the 

20 filing of lawsuits by a minor; 

21 (3) that triggers the time period based on the 

22 date of the alleged negligence; or 

23 (4) establishes a statute of repose for the filing 

24 of health care lawsuit. 


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1 SEC. 3. COMPENSATING PATIENT INJURY. 

2 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

3 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 

4 health care lawsuit, nothing in this Act shall limit a claim5 ant’s recovery of the full amount of the available economic 

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

7 (b) ADDITIONAL NONECONOMIC DAMAGES.—In any 

8 health care lawsuit, the amount of noneconomic damages, 

9 if available, shall not exceed $250,000, regardless of the 

10 number of parties against whom the action is brought or 

11 the number of separate claims or actions brought with re12 spect to the same injury. 

13 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

14 DAMAGES.—For purposes of applying the limitation in 

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

16 discounted to present value. The jury shall not be in17 formed about the maximum award for noneconomic dam18 ages. An award for noneconomic damages in excess of 

19 $250,000 shall be reduced either before the entry of judg20 ment, or by amendment of the judgment after entry of 

21 judgment, and such reduction shall be made before ac22 counting for any other reduction in damages required by 

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

24 noneconomic damages and the combined awards exceed 

25 $250,000, the future noneconomic damages shall be re26 duced first. 


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

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

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

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

5 damages allocated to such party in direct proportion to 

6 such party’s percentage of responsibility. Whenever a 

7 judgment of liability is rendered as to any party, a sepa8 rate judgment shall be rendered against each such party 

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

10 this section, the trier of fact shall determine the propor11 tion of responsibility of each party for the claimant’s 

12 harm. 

13 (e) STATE FLEXIBILITY.—No provision of this sec14 tion shall be construed to preempt any State law (whether 

15 effective before, on, or after the date of the enactment of 

16 this Act) that specifies a particular monetary amount of 

17 economic or noneconomic damages (or the total amount 

18 of damages) that may be awarded in a health care lawsuit, 

19 regardless of whether such monetary amount is greater 

20 or lesser than is provided for under this section. 

21 SEC. 4. MAXIMIZING PATIENT RECOVERY. 

22 (a) COURT SUPERVISION OF SHARE OF DAMAGES

23 ACTUALLY PAID TO CLAIMANTS.—In any health care law24 suit, the court shall supervise the arrangements for pay25 ment of damages to protect against conflicts of interest 


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1 that may have the effect of reducing the amount of dam2 ages awarded that are actually paid to claimants. In par3 ticular, in any health care lawsuit in which the attorney 

4 for a party claims a financial stake in the outcome by vir5 tue of a contingent fee, the court shall have the power 

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

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

8 claimant based upon the interests of justice and principles 

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

10 for representing all claimants in a health care lawsuit ex11 ceed the following limits: 

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

13 by the claimant(s). 

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

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

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

17 recovered by the claimant(s). 

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

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

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

21 shall apply whether the recovery is by judgment, settle22 ment, mediation, arbitration, or any other form of alter23 native dispute resolution. In a health care lawsuit involv24 ing a minor or incompetent person, a court retains the 

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


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1 the maximum permitted under this section. The require2 ment for court supervision in the first two sentences of 

3 subsection (a) applies only in civil actions. 

4 (c) STATE FLEXIBILITY.—No provision of this sec5 tion shall be construed to preempt any State law (whether 

6 effective before, on, or after the date of the enactment of 

7 this Act) that specifies a lesser percentage or lesser total 

8 value of damages which may be claimed by an attorney 

9 representing a claimant in a health care lawsuit. 

10 SEC. 5. AUTHORIZATION OF PAYMENT OF FUTURE DAM11 AGES TO CLAIMANTS IN HEALTH CARE LAW12 SUITS. 

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

14 award of future damages, without reduction to present 

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

16 party with sufficient insurance or other assets to fund a 

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

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

19 the future damages be paid by periodic payments, in ac20 cordance with the Uniform Periodic Payment of Judg21 ments Act promulgated by the National Conference of 

22 Commissioners on Uniform State Laws. 

23 (b) APPLICABILITY.—This section applies to all ac24 tions which have not been first set for trial or retrial be25 fore the effective date of this Act. 


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1 (c) STATE FLEXIBILITY.—No provision of this sec2 tion shall be construed to preempt any State law (whether 

3 effective before, on, or after the date of the enactment of 

4 this Act) that specifies periodic payments for future dam5 ages at any amount other than $50,000 or that mandates 

6 such payments absent the request of either party. 

7 SEC. 6. PRODUCT LIABILITY FOR HEALTH CARE PRO8 VIDERS. 

9 A health care provider who prescribes, or who dis10 penses pursuant to a prescription, a medical product ap11 proved, licensed, or cleared by the Food and Drug Admin12 istration shall not be named as a party to a product liabil13 ity lawsuit involving such product and shall not be liable 

14 to a claimant in a class action lawsuit against the manu15 facturer, distributor, or seller of such product. 

16 SEC. 7. DEFINITIONS. 

17 In this Act: 

18 (1) ALTERNATIVE DISPUTE RESOLUTION SYS19 TEM; ADR.—The term ‘‘alternative dispute resolution 

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

21 for the resolution of health care lawsuits in a man22 ner other than through a civil action brought in a 

23 State or Federal court. 

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

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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 


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1 (D) any other publicly or privately funded 

2 program. 

3 (4) CONTINGENT FEE.—The term ‘‘contingent 

4 fee’’ includes all compensation to any person or per5 sons which is payable only if a recovery is effected 

6 on behalf of one or more claimants. 

7 (5) ECONOMIC DAMAGES.—The term ‘‘economic 

8 damages’’ means objectively verifiable monetary 

9 losses incurred as a result of the provision or use of 

10 (or failure to provide or use) health care services or 

11 medical products, such as past and future medical 

12 expenses, loss of past and future earnings, cost of 

13 obtaining domestic services, loss of employment, and 

14 loss of business or employment opportunities, unless 

15 otherwise defined under applicable state law. In no 

16 circumstances shall damages for health care services 

17 or medical products exceed the amount actually paid 

18 or incurred by or on behalf of the claimant. 

19 (6) FUTURE DAMAGES.—The term ‘‘future 

20 damages’’ means any damages that are incurred 

21 after the date of judgment, settlement, or other reso22 lution (including mediation, or any other form of al23 ternative dispute resolution). 

24 (7) HEALTH CARE LAWSUIT.—The term 

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


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1 claim concerning the provision of goods or services 

2 for which coverage was provided in whole or in part 

3 via a Federal program, subsidy or tax benefit, or 

4 any health care liability action concerning the provi5 sion of goods or services for which coverage was pro6 vided in whole or in part via a Federal program, 

7 subsidy or tax benefit, brought in a State or Federal 

8 court or pursuant to an alternative dispute resolu9 tion system, against a health care provider regard10 less of the theory of liability on which the claim is 

11 based, or the number of claimants, plaintiffs, de12 fendants, or other parties, or the number of claims 

13 or causes of action, in which the claimant alleges a 

14 health care liability claim. Such term does not in15 clude a claim or action which is based on criminal 

16 liability; which seeks civil fines or penalties paid to 

17 Federal, State, or local government; or which is 

18 grounded in antitrust. 

19 (8) HEALTH CARE LIABILITY ACTION.—The 

20 term ‘‘health care liability action’’ means a civil ac21 tion brought in a State or Federal court or pursuant 

22 to an alternative dispute resolution system, against 

23 a health care provider regardless of the theory of li24 ability on which the claim is based, or the number 

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


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1 number of causes of action, in which the claimant al2 leges a health care liability claim. 

3 (9) HEALTH CARE LIABILITY CLAIM.—The 

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

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

6 against a health care provider, including, but not 

7 limited to, third-party claims, cross-claims, counter8 claims, or contribution claims, which are based upon 

9 the provision or use of (or the failure to provide or 

10 use) health care services or medical products, re11 gardless of the theory of liability on which the claim 

12 is based, or the number of plaintiffs, defendants, or 

13 other parties, or the number of causes of action. 

14 (10) HEALTH CARE PROVIDER.—The term 

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

16 required by State or Federal laws or regulations to 

17 be licensed, registered, or certified to provide health 

18 care services, and being either so licensed, reg19 istered, or certified, or exempted from such require20 ment by other statute or regulation, as well as any 

21 other individual or entity defined as a health care 

22 provider, health care professional, or health care in23 stitution under state law. 

24 (11) HEALTH CARE SERVICES.—The term 

25 ‘‘health care services’’ means the provision of any 


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1 goods or services (including safety, professional, or 

2 administrative services directly related to health 

3 care) by a health care provider, or by any individual 

4 working under the supervision of a health care pro5 vider, that relates to the diagnosis, prevention, or 

6 treatment of any human disease or impairment, or 

7 the assessment or care of the health of human 

8 beings. 

9 (12) MEDICAL PRODUCT.—The term ‘‘medical 

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

11 intended for humans, and the terms ‘‘drug’’, ‘‘de12 vice’’, and ‘‘biological product’’ have the meanings 

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

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

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

16 Public Health Service Act (42 U.S.C. 262(a)), re17 spectively, including any component or raw material 

18 used therein, but excluding health care services. 

19 (13) NONECONOMIC DAMAGES.—The term 

20 ‘‘noneconomic damages’’ means damages for phys21 ical and emotional pain, suffering, inconvenience, 

22 physical impairment, mental anguish, disfigurement, 

23 loss of enjoyment of life, loss of society and compan24 ionship, loss of consortium (other than loss of do25 mestic service), hedonic damages, injury to reputaVerDate Sep 11 2014 02:54 Jun 30, 2017 Jkt 069200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\H1215.RFS H1215

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1 tion, and all other nonpecuniary losses of any kind 

2 or nature incurred as a result of the provision or use 

3 of (or failure to provide or use) health care services 

4 or medical products, unless otherwise defined under 

5 applicable state law. 

6 (14) RECOVERY.—The term ‘‘recovery’’ means 

7 the net sum recovered after deducting any disburse8 ments or costs incurred in connection with prosecu9 tion or settlement of the claim, including all costs 

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

11 incurred by the plaintiff and the attorneys’ office 

12 overhead costs or charges for legal services are not 

13 deductible disbursements or costs for such purpose. 

14 (15) REPRESENTATIVE.—The term ‘‘represent15 ative’’ means a legal guardian, attorney, person des16 ignated to make decisions on behalf of a patient 

17 under a medical power of attorney, or any person 

18 recognized in law or custom as a patient’s agent. 

19 (16) 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. 


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1 SEC. 8. 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. 9. RULES OF CONSTRUCTION. 

24 (a) HEALTH CARE LAWSUITS.—Unless otherwise 

25 specified in this Act, the provisions governing health care 

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1 sections (b) and (c), State law to the extent that State 

2 law prevents the application of any provisions of law estab3 lished by or under this Act. The provisions governing 

4 health care lawsuits set forth in this Act supersede chapter 

5 171 of title 28, United States Code, to the extent that 

6 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.—Any issue that is not governed by any provision 

18 of law established by or under this Act (including State 

19 standards of negligence) shall be governed by otherwise 

20 applicable State or Federal law. 

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

22 shall be construed to preempt any defense available to a 

23 party in a health care lawsuit under any other provision 

24 of State or Federal law. 


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1 SEC. 10. EFFECTIVE DATE. 

2 This Act shall apply to any health care lawsuit 

3 brought in a Federal or State court, or subject to an alter4 native dispute resolution system, that is initiated on or 

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

6 any health care lawsuit arising from an injury occurring 

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

8 governed by the applicable statute of limitations provisions 

9 in effect at the time the cause of action accrued. 

10 SEC. 11. LIMITATION ON EXPERT WITNESS TESTIMONY. 

11 (a) IN GENERAL.—No person in a health care profes12 sion requiring licensure under the laws of a State shall 

13 be competent to testify in any court of law to establish 

14 the following facts— 

15 (1) the recognized standard of acceptable pro16 fessional practice and the specialty thereof, if any, 

17 that the defendant practices, which shall be the type 

18 of acceptable professional practice recognized in the 

19 defendant’s community or in a community similar to 

20 the defendant’s community that was in place at the 

21 time the alleged injury or wrongful action occurred; 

22 (2) that the defendant acted with less than or 

23 failed to act with ordinary and reasonable care in ac24 cordance with the recognized standard; and 

25 (3) that as a proximate result of the defend26 ant’s negligent act or omission, the claimant sufVerDate Sep 11 2014 02:54 Jun 30, 2017 Jkt 069200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\H1215.RFS H1215

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1 fered injuries which would not otherwise have oc2 curred, 

3 unless the person was licensed to practice, in the State 

4 or a contiguous bordering State, a profession or specialty 

5 which would make the person’s expert testimony relevant 

6 to the issues in the case and had practiced this profession 

7 or specialty in one of these States during the year pre8 ceding the date that the alleged injury or wrongful act 

9 occurred. 

10 (b) APPLICABILITY.—The requirements set forth in 

11 subsection (a) shall also apply to expert witnesses testi12 fying for the defendant as rebuttal witnesses. 

13 (c) WAIVER AUTHORITY.—The court may waive the 

14 requirements in this subsection if it determines that the 

15 appropriate witnesses otherwise would not be available. 

16 SEC. 12. COMMUNICATIONS FOLLOWING UNANTICIPATED 

17 OUTCOME. 

18 (a) PROVIDER COMMUNICATIONS.—In any health 

19 care liability action, any and all statements, affirmations, 

20 gestures, or conduct expressing apology, fault, sympathy, 

21 commiseration, condolence, compassion, or a general sense 

22 of benevolence which are made by a health care provider 

23 or an employee of a health care provider to the patient, 

24 a relative of the patient, or a representative of the patient 

25 and which relate to the discomfort, pain, suffering, injury, 


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1 or death of the patient as the result of the unanticipated 

2 outcome of medical care shall be inadmissible for any pur3 pose as evidence of an admission of liability or as evidence 

4 of an admission against interest. 

5 (b) STATE FLEXIBILITY.—No provision of this sec6 tion shall be construed to preempt any State law (whether 

7 effective before, on, or after the date of the enactment of 

8 this Act) that makes additional communications inadmis9 sible as evidence of an admission of liability or as evidence 

10 of an admission against interest. 

11 SEC. 13. EXPERT WITNESS QUALIFICATIONS. 

12 (a) IN GENERAL.—In any health care lawsuit, an in13 dividual shall not give expert testimony on the appropriate 

14 standard of practice or care involved unless the individual 

15 is licensed as a health professional in one or more States 

16 and the individual meets the following criteria: 

17 (1) If the party against whom or on whose be18 half the testimony is to be offered is or claims to be 

19 a specialist, the expert witness shall specialize at the 

20 time of the occurrence that is the basis for the law21 suit in the same specialty or claimed specialty as the 

22 party against whom or on whose behalf the testi23 mony is to be offered. If the party against whom or 

24 on whose behalf the testimony is to be offered is or 

25 claims to be a specialist who is board certified, the 


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1 expert witness shall be a specialist who is board cer2 tified in that specialty or claimed specialty. 

3 (2) During the 1-year period immediately pre4 ceding the occurrence of the action that gave rise to 

5 the lawsuit, the expert witness shall have devoted a 

6 majority of the individual’s professional time to one 

7 or more of the following: 

8 (A) The active clinical practice of the same 

9 health profession as the defendant and, if the 

10 defendant is or claims to be a specialist, in the 

11 same specialty or claimed specialty. 

12 (B) The instruction of students in an ac13 credited health professional school or accredited 

14 residency or clinical research program in the 

15 same health profession as the defendant and, if 

16 the defendant is or claims to be a specialist, in 

17 an accredited health professional school or ac18 credited residency or clinical research program 

19 in the same specialty or claimed specialty. 

20 (3) If the defendant is a general practitioner, 

21 the expert witness shall have devoted a majority of 

22 the witness’s professional time in the 1-year period 

23 preceding the occurrence of the action giving rise to 

24 the lawsuit to one or more of the following: 


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1 (A) Active clinical practice as a general 

2 practitioner. 

3 (B) Instruction of students in an accred4 ited health professional school or accredited 

5 residency or clinical research program in the 

6 same health profession as the defendant. 

7 (b) LAWSUITS AGAINST ENTITIES.—If the defendant 

8 in a health care lawsuit is an entity that employs a person 

9 against whom or on whose behalf the testimony is offered, 

10 the provisions of subsection (a) apply as if the person were 

11 the party or defendant against whom or on whose behalf 

12 the testimony is offered. 

13 (c) POWER OF COURT.—Nothing in this subsection 

14 shall limit the power of the trial court in a health care 

15 lawsuit to disqualify an expert witness on grounds other 

16 than the qualifications set forth under this subsection. 

17 (d) LIMITATION.—An expert witness in a health care 

18 lawsuit shall not be permitted to testify if the fee of the 

19 witness is in any way contingent on the outcome of the 

20 lawsuit. 

21 (e) STATE FLEXIBILITY.—No provision of this sec22 tion shall be construed to preempt any State law (whether 

23 effective before, on, or after the date of the enactment of 

24 this Act) that places additional qualification requirements 

25 upon any individual testifying as an expert witness. 


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1 SEC. 14. AFFIDAVIT OF MERIT. 

2 (a) REQUIRED FILING.—Subject to subsection (b), 

3 the plaintiff in a health care lawsuit alleging negligence 

4 or, if the plaintiff is represented by an attorney, the plain5 tiff’s attorney shall file simultaneously with the health 

6 care lawsuit an affidavit of merit signed by a health pro7 fessional who meets the requirements for an expert wit8 ness under section 14 of this Act. The affidavit of merit 

9 shall certify that the health professional has reviewed the 

10 notice and all medical records supplied to him or her by 

11 the plaintiff’s attorney concerning the allegations con12 tained in the notice and shall contain a statement of each 

13 of the following: 

14 (1) The applicable standard of practice or care. 

15 (2) The health professional’s opinion that the 

16 applicable standard of practice or care was breached 

17 by the health professional or health facility receiving 

18 the notice. 

19 (3) The actions that should have been taken or 

20 omitted by the health professional or health facility 

21 in order to have complied with the applicable stand22 ard of practice or care. 

23 (4) The manner in which the breach of the 

24 standard of practice or care was the proximate cause 

25 of the injury alleged in the notice. 

26 (5) A listing of the medical records reviewed. 


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1 (b) FILING EXTENSION.—Upon motion of a party for 

2 good cause shown, the court in which the complaint is filed 

3 may grant the plaintiff or, if the plaintiff is represented 

4 by an attorney, the plaintiff’s attorney an additional 28 

5 days in which to file the affidavit required under sub6 section (a). 

7 (c) STATE FLEXIBILITY.—No provision of this sec8 tion shall be construed to preempt any State law (whether 

9 effective before, on, or after the date of the enactment of 

10 this Act) that establishes additional requirements for the 

11 filing of an affidavit of merit or similar pre-litigation docu12 mentation. 

13 SEC. 15. NOTICE OF INTENT TO COMMENCE LAWSUIT. 

14 (a) ADVANCE NOTICE.—A person shall not com15 mence a health care lawsuit against a health care provider 

16 unless the person has given the health care provider 90 

17 days written notice before the action is commenced. 

18 (b) EXCEPTIONS.—A health care lawsuit against a 

19 health care provider filed within 6 months of the statute 

20 of limitations expiring as to any claimant, or within 1 year 

21 of the statute of repose expiring as to any claimant, shall 

22 be exempt from compliance with this section. 

23 (c) STATE FLEXIBILITY.—No provision of this sec24 tion shall be construed to preempt any State law (whether 

25 effective before, on, or after the date of the enactment of 


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HR 1215 RFS 

1 this Act) that establishes a different time period for the 

2 filing of written notice. 

Passed the House of Representatives June 28, 2017. 

Attest: KAREN L. HAAS, 

Clerk. 


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