I 

109TH CONGRESS 

2D SESSION H. R. 4838 

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 HOUSE OF REPRESENTATIVES 

MARCH 1, 2006 

Mr. SHAW introduced the following bill; which was referred to the Committee 

on the Judiciary, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in 

each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

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 Malpractice 

5 Reform Act of 2006’’. 

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. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

10 The time for the commencement of a health care law11 suit shall be 3 years after the date of manifestation of 

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

13 the use of reasonable diligence should have discovered, the 

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

15 for commencement of a health care lawsuit exceed 3 years 

16 after the date of manifestation of injury unless tolled for 

17 any of the following— 

18 (1) upon proof of fraud; 

19 (2) intentional concealment; or 

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

21 therapeutic or diagnostic purpose or effect, in the 

22 person of the injured person. 

23 Actions by a minor shall be commenced within 3 years 

24 from the date of the alleged manifestation of injury except 

25 that actions by a minor under the full age of 6 years shall 
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1 be commenced within 3 years of manifestation of injury 

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

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

4 minors for any period during which a parent or guardian 

5 and a health care provider or health care organization 

6 have committed fraud or collusion in the failure to bring 

7 an action on behalf of the injured minor. 

8 SEC. 4. 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 a claim12 ant’s recovery of the full amount of the available economic 

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

14 (b) ADDITIONAL NONECONOMIC DAMAGES.—In any 

15 health care lawsuit, the amount of noneconomic damages, 

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

17 the number of parties against whom the action is brought 

18 or the number of separate claims or actions brought with 

19 respect to the same injury. 

20 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

21 DAMAGES.—For purposes of applying the limitation in 

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

23 discounted to present value. The jury shall not be in24 formed about the maximum award for noneconomic dam25 ages. An award for noneconomic damages in excess of 
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1 $250,000 shall be reduced either before the entry of judg2 ment, or by amendment of the judgment after entry of 

3 judgment, and such reduction shall be made before ac4 counting for any other reduction in damages required by 

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

6 noneconomic damages and the combined awards exceed 

7 $250,000, the future noneconomic damages shall be re8 duced first. 

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

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

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

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

13 damages allocated to such party in direct proportion to 

14 such party’s percentage of responsibility. Whenever a 

15 judgment of liability is rendered as to any party, a sepa16 rate judgment shall be rendered against each such party 

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

18 this section, the trier of fact shall determine the propor19 tion of responsibility of each party for the claimant’s 

20 harm. 

21 SEC. 5. 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) 40 percent of the first $50,000 recovered by 

13 the claimant(s). 

(2) 331 14 ⁄3 percent of the next $50,000 recovered 

15 by the claimant(s). 

16 (3) 25 percent of the next $500,000 recovered 

17 by the claimant(s). 

18 (4) 15 percent of any amount by which the re19 covery 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 SEC. 6. ADDITIONAL HEALTH BENEFITS. 

5 In any health care lawsuit involving injury or wrong6 ful death, any party may introduce evidence of collateral 

7 source benefits. If a party elects to introduce such evi8 dence, any opposing party may introduce evidence of any 

9 amount paid or contributed or reasonably likely to be paid 

10 or contributed in the future by or on behalf of the oppos11 ing party to secure the right to such collateral source bene12 fits. No provider of collateral source benefits shall recover 

13 any amount against the claimant or receive any lien or 

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

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

16 care lawsuit involving injury or wrongful death. This sec17 tion shall apply to any health care lawsuit that is settled 

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

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

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

21 1396a(a)(25)) of the Social Security Act. 

22 SEC. 7. PUNITIVE DAMAGES. 

23 (a) IN GENERAL.—Punitive damages may, if other24 wise permitted by applicable State or Federal law, be 

25 awarded against any person in a health care lawsuit only 
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1 if it is proven by clear and convincing evidence that such 

2 person acted with malicious intent to injure the claimant, 

3 or that such person deliberately failed to avoid unneces4 sary injury that such person knew the claimant was sub5 stantially certain to suffer. In any health care lawsuit 

6 where no judgment for compensatory damages is rendered 

7 against such person, no punitive damages may be awarded 

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

9 punitive damages shall be included in a health care lawsuit 

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

11 amended pleading for punitive damages only upon a mo12 tion by the claimant and after a finding by the court, upon 

13 review of supporting and opposing affidavits or after a 

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

15 established by a substantial probability that the claimant 

16 will prevail on the claim for punitive damages. At the re17 quest of any party in a health care lawsuit, the trier of 

18 fact shall consider in a separate proceeding— 

19 (1) whether punitive damages are to be award20 ed and the amount of such award; and 

21 (2) the amount of punitive damages following a 

22 determination of punitive liability. 

23 If a separate proceeding is requested, evidence relevant 

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

25 applicable State law, shall be inadmissible in any pro-
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1 ceeding to determine whether compensatory damages are 

2 to be awarded. 

3 (b) DETERMINING AMOUNT OF PUNITIVE DAM4 AGES.— 

5 (1) FACTORS CONSIDERED.—In determining 

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

7 health care lawsuit, the trier of fact shall consider 

8 only the following— 

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

10 conduct of such party; 

11 (B) the duration of the conduct or any 

12 concealment of it by such party; 

13 (C) the profitability of the conduct to such 

14 party; 

15 (D) the number of products sold or med16 ical procedures rendered for compensation, as 

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

18 causing the harm complained of by the claim19 ant; 

20 (E) any criminal penalties imposed on such 

21 party, as a result of the conduct complained of 

22 by the claimant; and 

23 (F) the amount of any civil fines assessed 

24 against such party as a result of the conduct 

25 complained of by the claimant. 
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1 (2) MAXIMUM AWARD.—The amount of punitive 

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

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

4 the amount of economic damages awarded, which5 ever is greater. The jury shall not be informed of 

6 this limitation. 

7 (c) NO PUNITIVE DAMAGES FOR PRODUCTS THAT

8 COMPLY WITH FDA STANDARDS.— 

9 (1) IN GENERAL.— 

10 (A) No punitive damages may be awarded 

11 against the manufacturer or distributor of a 

12 medical product, or a supplier of any compo13 nent or raw material of such medical product, 

14 based on a claim that such product caused the 

15 claimant’s harm where— 

16 (i)(I) such medical product was sub17 ject to premarket approval, clearance, or li18 censure by the Food and Drug Administra19 tion with respect to the safety of the for20 mulation or performance of the aspect of 

21 such medical product which caused the 

22 claimant’s harm or the adequacy of the 

23 packaging or labeling of such medical 

24 product; and 
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1 (II) such medical product was so ap2 proved, cleared, or licensed; or 

3 (ii) such medical product is generally 

4 recognized among qualified experts as safe 

5 and effective pursuant to conditions estab6 lished by the Food and Drug Administra7 tion and applicable Food and Drug Admin8 istration regulations, including without 

9 limitation those related to packaging and 

10 labeling, unless the Food and Drug Admin11 istration has determined that such medical 

12 product was not manufactured or distrib13 uted in substantial compliance with appli14 cable Food and Drug Administration stat15 utes and regulations. 

16 (B) RULE OF CONSTRUCTION.—Subpara17 graph (A) may not be construed as establishing 

18 the obligation of the Food and Drug Adminis19 tration to demonstrate affirmatively that a 

20 manufacturer, distributor, or supplier referred 

21 to in such subparagraph meets any of the con22 ditions described in such subparagraph. 

23 (2) LIABILITY OF HEALTH CARE PROVIDERS.— 

24 A health care provider who prescribes, or who dis25 penses pursuant to a prescription, a medical product 
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1 approved, licensed, or cleared by the Food and Drug 

2 Administration shall not be named as a party to a 

3 product liability lawsuit involving such product and 

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

5 lawsuit against the manufacturer, distributor, or 

6 seller of such product. Nothing in this paragraph 

7 prevents a court from consolidating cases involving 

8 health care providers and cases involving products li9 ability claims against the manufacturer, distributor, 

10 or product seller of such medical product. 

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

12 harm which is alleged to relate to the adequacy of 

13 the packaging or labeling of a drug which is required 

14 to have tamper-resistant packaging under regula15 tions of the Secretary of Health and Human Serv16 ices (including labeling regulations related to such 

17 packaging), the manufacturer or product seller of 

18 the drug shall not be held liable for punitive dam19 ages unless such packaging or labeling is found by 

20 the trier of fact by clear and convincing evidence to 

21 be substantially out of compliance with such regula22 tions. 

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

24 apply in any health care lawsuit in which— 
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1 (A) a person, before or after premarket ap2 proval, clearance, or licensure of such medical 

3 product, knowingly misrepresented to or with4 held from the Food and Drug Administration 

5 information that is required to be submitted 

6 under the Federal Food, Drug, and Cosmetic 

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

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

9 that is material and is causally related to the 

10 harm which the claimant allegedly suffered; or 

11 (B) a person made an illegal payment to 

12 an official of the Food and Drug Administra13 tion for the purpose of either securing or main14 taining approval, clearance, or licensure of such 

15 medical product. 

16 SEC. 8. AUTHORIZATION OF PAYMENT OF FUTURE DAM17 AGES TO CLAIMANTS IN HEALTH CARE LAW18 SUITS. 

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

20 award of future damages, without reduction to present 

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

22 party with sufficient insurance or other assets to fund a 

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

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

25 the future damages be paid by periodic payments. In any 
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1 health care lawsuit, the court may be guided by the Uni2 form Periodic Payment of Judgments Act promulgated by 

3 the National Conference of Commissioners on Uniform 

4 State Laws. 

5 (b) APPLICABILITY.—This section applies to all ac6 tions which have not been first set for trial or retrial be7 fore the effective date of this Act. 

8 SEC. 9. DEFINITIONS. 

9 In this Act: 

10 (1) ALTERNATIVE DISPUTE RESOLUTION SYS11 TEM; ADR.—The term ‘‘alternative dispute resolution 

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

13 for the resolution of health care lawsuits in a man14 ner other than through a civil action brought in a 

15 State or Federal court. 

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

17 any person who brings a health care lawsuit, includ18 ing a person who asserts or claims a right to legal 

19 or equitable contribution, indemnity or subrogation, 

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

21 and any person on whose behalf such a claim is as22 serted or such an action is brought, whether de23 ceased, incompetent, or a minor. 

24 (3) COLLATERAL SOURCE BENEFITS.—The 

25 term ‘‘collateral source benefits’’ means any amount 
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1 paid or reasonably likely to be paid in the future to 

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

3 or other benefit provided or reasonably likely to be 

4 provided in the future to or on behalf of the claim5 ant, as a result of the injury or wrongful death, pur6 suant to— 

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

8 income-disability, accident, or workers’ com9 pensation law; 

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

11 or accident insurance that provides health bene12 fits or income-disability coverage; 

13 (C) any contract or agreement of any 

14 group, organization, partnership, or corporation 

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

16 medical, hospital, dental, or income disability 

17 benefits; and 

18 (D) any other publicly or privately funded 

19 program. 

20 (4) COMPENSATORY DAMAGES.—The term 

21 ‘‘compensatory damages’’ means objectively 

22 verifiable monetary losses incurred as a result of the 

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

24 provide, use, or pay for) health care services or med25 ical products, such as past and future medical ex-
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1 penses, loss of past and future earnings, cost of ob2 taining domestic services, loss of employment, and 

3 loss of business or employment opportunities, dam4 ages for physical and emotional pain, suffering, in5 convenience, physical impairment, mental anguish, 

6 disfigurement, loss of enjoyment of life, loss of soci7 ety and companionship, loss of consortium (other 

8 than loss of domestic service), hedonic damages, in9 jury to reputation, and all other nonpecuniary losses 

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

11 damages’’ includes economic damages and non12 economic damages, as such terms are defined in this 

13 section. 

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

15 fee’’ includes all compensation to any person or per16 sons which is payable only if a recovery is effected 

17 on behalf of one or more claimants. 

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

19 damages’’ means objectively verifiable monetary 

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

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

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

23 past and future medical expenses, loss of past and 

24 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 LAWSUIT.—The term 

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

5 claim concerning the provision of health care goods 

6 or services or any medical product affecting inter7 state commerce, or any health care liability action 

8 concerning the provision of health care goods or 

9 services or any medical product affecting interstate 

10 commerce, brought in a State or Federal court or 

11 pursuant to an alternative dispute resolution system, 

12 against a health care provider, a health care organi13 zation, or the manufacturer, distributor, supplier, 

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

15 regardless of the theory of liability on which the 

16 claim is based, or the number of claimants, plain17 tiffs, defendants, or other parties, or the number of 

18 claims or causes of action, in which the claimant al19 leges a health care liability claim. Such term does 

20 not include a claim or action which is based on 

21 criminal liability; which seeks civil fines or penalties 

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

23 is grounded in antitrust. 

24 (8) HEALTH CARE LIABILITY ACTION.—The 

25 term ‘‘health care liability action’’ means a civil ac-
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1 tion brought in a State or Federal Court or pursu2 ant to an alternative dispute resolution system, 

3 against a health care provider, a health care organi4 zation, or the manufacturer, distributor, supplier, 

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

6 regardless of the theory of liability on which the 

7 claim is based, or the number of plaintiffs, defend8 ants, or other parties, or the number of causes of ac9 tion, in which the claimant alleges a health care li10 ability claim. 

11 (9) HEALTH CARE LIABILITY CLAIM.—The 

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

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

14 against a health care provider, health care organiza15 tion, or the manufacturer, distributor, supplier, mar16 keter, promoter, or seller of a medical product, in17 cluding, but not limited to, third-party claims, cross18 claims, counter-claims, or contribution claims, which 

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

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

21 care services or medical products, regardless of the 

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

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

24 the number of causes of action. 
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1 (10) HEALTH CARE ORGANIZATION.—The term 

2 ‘‘health care organization’’ means any person or en3 tity which is obligated to provide or pay for health 

4 benefits under any health plan, including any person 

5 or entity acting under a contract or arrangement 

6 with a health care organization to provide or admin7 ister any health benefit. 

8 (11) HEALTH CARE PROVIDER.—The term 

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

10 required by State or Federal laws or regulations to 

11 be licensed, registered, or certified to provide health 

12 care services, and being either so licensed, reg13 istered, or certified, or exempted from such require14 ment by other statute or regulation. 

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

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

17 goods or services provided by a health care organiza18 tion, provider, or by any individual working under 

19 the supervision of a health care provider, that relates 

20 to the diagnosis, prevention, or treatment of any 

21 human disease or impairment, or the assessment or 

22 care of the health of human beings. 

23 (13) MALICIOUS INTENT TO INJURE.—The 

24 term ‘‘malicious intent to injure’’ means inten25 tionally causing or attempting to cause physical in-
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1 jury other than providing health care goods or serv2 ices. 

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

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

5 intended for humans, and the terms ‘‘drug’’, ‘‘de6 vice’’, and ‘‘biological product’’ have the meanings 

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

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

9 U.S.C. 321) and section 351(a) of the Public Health 

10 Service Act (42 U.S.C. 262(a)), respectively, includ11 ing any component or raw material used therein, but 

12 excluding health care services. 

13 (15) NONECONOMIC DAMAGES.—The term 

14 ‘‘noneconomic damages’’ means damages for phys15 ical and emotional pain, suffering, inconvenience, 

16 physical impairment, mental anguish, disfigurement, 

17 loss of enjoyment of life, loss of society and compan18 ionship, loss of consortium (other than loss of do19 mestic service), hedonic damages, injury to reputa20 tion, and all other nonpecuniary losses of any kind 

21 or nature. 

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

23 damages’’ means damages awarded, for the purpose 

24 of punishment or deterrence, and not solely for com25 pensatory purposes, against a health care provider, 
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1 health care organization, or a manufacturer, dis2 tributor, or supplier of a medical product. Punitive 

3 damages are neither economic nor noneconomic 

4 damages. 

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

6 the net sum recovered after deducting any disburse7 ments or costs incurred in connection with prosecu8 tion or settlement of the claim, including all costs 

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

10 incurred by the plaintiff and the attorneys’ office 

11 overhead costs or charges for legal services are not 

12 deductible disbursements or costs for such purpose. 

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

14 the several States, the District of Columbia, the 

15 Commonwealth of Puerto Rico, the Virgin Islands, 

16 Guam, American Samoa, the Northern Mariana Is17 lands, the Trust Territory of the Pacific Islands, and 

18 any other territory or possession of the United 

19 States, or any political subdivision thereof. 

20 SEC. 10. EFFECT ON OTHER LAWS. 

21 (a) VACCINE INJURY.— 

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

23 Health Service Act establishes a Federal rule of law 

24 applicable to a civil action brought for a vaccine-re25 lated injury or death— 
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1 (A) this Act does not affect the application 

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

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

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

5 shall not apply to such action. 

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

7 brought for a vaccine-related injury or death to 

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

9 Public Health Service Act does not apply, then this 

10 Act or otherwise applicable law (as determined 

11 under this Act) will apply to such aspect of such ac12 tion. 

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

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

15 any defense available to a defendant in a health care law16 suit or action under any other provision of Federal law. 

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

18 RIGHTS. 

19 (a) HEALTH CARE LAWSUITS.—The provisions gov20 erning health care lawsuits set forth in this Act preempt, 

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

22 that State law prevents the application of any provisions 

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

24 governing health care lawsuits set forth in this Act super-
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1 sede chapter 171 of title 28, United States Code, to the 

2 extent that such chapter— 

3 (1) provides for a greater amount of damages 

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

5 care lawsuit may be commenced, or a reduced appli6 cability or scope of periodic payment of future dam7 ages, than provided in this Act; or 

8 (2) prohibits the introduction of evidence re9 garding collateral source benefits, or mandates or 

10 permits subrogation or a lien on collateral source 

11 benefits. 

12 (b) PROTECTION OF STATES’ RIGHTS AND OTHER

13 LAWS.—(1) Any issue that is not governed by any provi14 sion of law established by or under this Act (including 

15 State standards of negligence) shall be governed by other16 wise applicable State or Federal law. 

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

18 law or provision that, in regards to attorney contingency 

19 fees, mandates that a greater portion of the damage recov20 ery go to the claimant. 

21 (3) 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. 
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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 in a monetary amount that is lesser than is pro9 vided for under this Act, notwithstanding section 

10 4(a); or 

11 (2) any State law in effect on or before the date 

12 of the enactment of this Act that specifies the total 

13 amount of all compensatory damages (both economic 

14 and noneconomic) that may be awarded in a health 

15 care lawsuit; or 

16 (3) any defense available to a party in a health 

17 care lawsuit under any other provision of State or 

18 Federal law. 

19 SEC. 12. APPLICABILITY; EFFECTIVE DATE. 

20 This Act shall apply to any health care lawsuit 

21 brought in a Federal or State court, or subject to an alter22 native dispute resolution system, that is initiated on or 

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

24 any health care lawsuit arising from an injury occurring 

25 prior to the date of the enactment of this Act shall be 
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1 governed by the applicable statute of limitations provisions 

2 in effect at the time the injury occurred. 

3 SEC. 13. SENSE OF CONGRESS. 

4 It is the sense of Congress that a health insurer 

5 should be liable for damages for harm caused when it 

6 makes a decision as to what care is medically necessary 

7 and appropriate. 

Æ