I 

111TH CONGRESS 

2D SESSION H. R. 5690 

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, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 1, 2010 

Mr. GINGREY of Georgia (for himself, Mr. FLEMING, Mr. SMITH of Texas, Mr. 

KLINE of Minnesota, Mr. HALL of Texas, Mr. BILBRAY, Mr. MARCHANT, 

Mr. BISHOP of Utah, Mr. FRANKS of Arizona, Mr. ROONEY, Mr. SHADEGG, Mr. LEE of New York, Mrs. MCMORRIS RODGERS, Mrs. 

BLACKBURN, Mr. ROE of Tennessee, Mr. KINGSTON, Mr. COLE, Mr. 

CASSIDY, Mr. PITTS, Mr. WESTMORELAND, Mr. LATTA, Mr. BONNER, 

Mr. LINDER, Mr. BOUSTANY, Mr. GRIFFITH, Mr. TIM MURPHY of Pennsylvania, Mr. BARTLETT, and Mr. DENT) 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, 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, 


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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

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

3 ‘‘Meaningful End to Defensive Medicine & Aimless Law4 suits (MedMal) Act of 2010’’. 

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

6 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings; purpose. 

Sec. 3. Health care lawsuit statute of limitations. 

Sec. 4. Early offer. 

Sec. 5. Collateral source benefits. 

Sec. 6. Benevolent gesture or admission of fault by a health care provider. 

Sec. 7. Fair share rule. 

Sec. 8. Punitive damages. 

Sec. 9. Authorization of payment of future damages to claimants in health care 

lawsuits. 

Sec. 10. Liability of health care providers for FDA-approved products. 

Sec. 11. Expert Witness Standards. 

Sec. 12. Protection of States’ rights and effect on other laws. 

Sec. 13. Definitions. 

Sec. 14. Applicability. 

7 SEC. 2. FINDINGS; PURPOSE. 

8 (a) FINDINGS.— 

9 (1) EFFECT ON HEALTH CARE ACCESS AND

10 COSTS.—Congress finds that the United States civil 

11 justice system adversely affects patient access to 

12 health care services, the quality of patient care, and 

13 the cost-efficiency of health care because the health 

14 care liability system is costly, ineffective, and a de15 terrent to the sharing of information among health 

16 care professionals, which impedes efforts to improve 

17 patient safety and quality of care. 


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1 (2) EFFECT ON INTERSTATE COMMERCE.— 

2 Congress finds that— 

3 (A) the health care and insurance indus4 tries affect interstate commerce; and 

5 (B) the health care liability litigation sys6 tems throughout the United States affect inter7 state commerce by contributing to the high cost 

8 of health care and premiums for health care li9 ability insurance purchased by health care sys10 tem providers. 

11 (3) EFFECT ON FEDERAL SPENDING.—Con12 gress finds that the health care liability litigation 

13 systems throughout the United States have a signifi14 cant effect on the amount, distribution, and use of 

15 Federal funds because of— 

16 (A) the large number of individuals who 

17 receive health care benefits under programs op18 erated or financed by the Federal Government; 

19 (B) the large number of individuals who 

20 benefit because of the exclusion from Federal 

21 taxes of the amounts spent to provide them 

22 with health insurance benefits; and 

23 (C) the large number of health care pro24 viders who provide items or services for which 

25 the Federal Government makes payments. 


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1 (b) PURPOSE.—It is the purpose of this Act to imple2 ment reasonable, comprehensive, and effective health care 

3 liability reforms designed to— 

4 (1) improve the availability of health care serv5 ices in cases in which health care lawsuits have been 

6 shown to be a factor in the decreased availability of 

7 services; 

8 (2) reduce the incidence of ‘‘defensive medi9 cine’’ and lower the cost of health care liability in10 surance, all of which contribute to the escalation of 

11 health care costs; 

12 (3) ensure that persons with meritorious health 

13 care injury claims receive fair and adequate com14 pensation, including reasonable noneconomic dam15 ages; 

16 (4) improve the fairness and cost-effectiveness 

17 of our current health care liability system to resolve 

18 disputes over health care liability by reducing uncer19 tainty in the amount of compensation provided to in20 jured individuals; and 

21 (5) increase the sharing of information in the 

22 health care system to reduce unintended injury and 

23 improve patient care. 


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1 SEC. 3. HEALTH CARE LAWSUIT STATUTE OF LIMITATIONS. 

2 (a) STATUTE OF LIMITATIONS FOR HEALTH CARE

3 LAWSUIT.—Except as provided under subsection (b), a 

4 health care lawsuit is barred unless it is commenced before 

5 the earlier of— 

6 (1) the expiration of the 3-year period begin7 ning on the date of manifestation of injury; or 

8 (2) the expiration of the 1-year period begin9 ning on the date on which the claimant discovers, or 

10 through the use of reasonable diligence should have 

11 discovered, the injury. 

12 (b) TOLLING OF STATUTE OF LIMITATIONS.—The 

13 statute of limitations under subsection (a) may be tolled 

14 for any of the following: 

15 (1) Proof of fraud. 

16 (2) Intentional concealment of information nec17 essary for a claimant to file a health care lawsuit. 

18 (3) The presence of a foreign body, which has 

19 no therapeutic or diagnostic purpose or effect, in the 

20 person of the injured person that is related to the 

21 health care liability claim. 

22 (c) APPLICABILITY.—This section shall not apply to 

23 any health care lawsuit arising from an injury occurring 

24 before the date of the enactment of this Act. 


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1 SEC. 4. EARLY OFFER. 

2 (a) IN GENERAL.—If a claimant rejects a qualified 

3 early offer from a defendant in a health care lawsuit, the 

4 amount of noneconomic damages that may be awarded 

5 against that defendant in the lawsuit may not exceed 

6 $350,000. 

7 (b) QUALIFIED EARLY OFFER.—In this section, the 

8 term ‘‘qualified early offer’’ means, with respect to a 

9 health care lawsuit, a reasonable offer that— 

10 (1) is made by a defendant to a claimant in 

11 order to settle the health care liability claim which 

12 is the subject of the lawsuit; 

13 (2) provides for the periodic payment to the 

14 claimant of net economic damages as such damages 

15 accrue, for which the defendant is responsible, to the 

16 claimant, to the extent that such damages are not 

17 already covered by a collateral source; 

18 (3) provides for payment of the reasonable at19 torney’s fees of the claimant; 

20 (4) is made to the claimant not later than 180 

21 days after the date such lawsuit is commenced; and 

22 (5) allows the claimant to accept or reject such 

23 offer within 30 days after the date on which such 

24 offer is made. 


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1 (c) CALCULATION OF AWARD.—If a claimant rejects 

2 a qualified early offer from a defendant in a health care 

3 lawsuit— 

4 (1) an award for noneconomic damages in ex5 cess of $350,000 shall be reduced to such amount ei6 ther before the entry of judgment, or by amendment 

7 of the judgment after entry of judgment, and such 

8 reduction shall be made before accounting for any 

9 other reduction in damages required by law; and 

10 (2) in a case in which separate awards are ren11 dered for past and future noneconomic damages, the 

12 future noneconomic damages shall be reduced first. 

13 (d) ATTORNEY’S FEES.—If a qualified early offer is 

14 rejected and a judgment is subsequently entered against 

15 the offeree in that health care lawsuit, the offeree shall 

16 be liable for the attorney’s fees of the offeror. 

17 (e) NO JURY NOTIFICATION.—If a claimant rejects 

18 a qualified early offer, the jury shall not be informed about 

19 the maximum award for noneconomic damages. 

20 (f) EARLY OFFER EVIDENCE INADMISSIBLE.—In 

21 any health care lawsuit, a qualified early offer shall be 

22 inadmissible as evidence of admission of liability or as evi23 dence of an admission against interest. 


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1 SEC. 5. COLLATERAL SOURCE BENEFITS. 

2 (a) EVIDENCE OF COLLATERAL SOURCE BENEFITS

3 ADMISSIBLE.—In any health care lawsuit involving injury 

4 or wrongful death, a party may introduce evidence of col5 lateral source benefits. 

6 (b) COLLATERAL SOURCE BENEFITS INTRO7 DUCED.—If a party elects to introduce evidence of collat8 eral source benefits, an opposing party may introduce evi9 dence of an amount paid or contributed or reasonably like10 ly to be paid or contributed in the future by or on behalf 

11 of the opposing party in order to secure such collateral 

12 source benefits. 

13 (c) PROVIDERS OF COLLATERAL SOURCE BENEFITS

14 BARRED FROM RECOVERY.—In any health care lawsuit 

15 involving injury or wrongful death, a provider of collateral 

16 source benefits may not— 

17 (1) recover an amount against the claimant; 

18 (2) receive a lien or credit against the claim19 ant’s recovery; or 

20 (3) be equitably or legally subrogated to the 

21 rights of the claimant. 

22 (d) RECOVERY DEFINED.—In this section, the term 

23 ‘‘recovery’’ means, with respect to a health care liability 

24 claim, the net sum recovered by a claimant after deducting 

25 any disbursements or costs incurred in connection with 

26 prosecution or settlement of the claim, including all costs 


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1 paid or advanced by any person, but does not include costs 

2 of health care incurred by the claimant or the charges for 

3 legal services of the claimant’s attorney. 

4 (e) APPLICABILITY.—Subsection (c) shall not apply 

5 in the case of a collateral source benefit for which the Sec6 retary of Health and Human Services or a State or local 

7 agency administering a State Medicaid plan may recover 

8 (or expect to recover) any payment made for such benefit 

9 pursuant to section 1862(b) (42 U.S.C. 1395y(b)) or sec10 tion 1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social 

11 Security Act. 

12 SEC. 6. BENEVOLENT GESTURE OR ADMISSION OF FAULT 

13 BY A HEALTH CARE PROVIDER. 

14 (a) EVIDENCE INADMISSIBLE.—In any health care 

15 lawsuit, a benevolent gesture or admission of fault that 

16 is made by a health care provider, or an employee of a 

17 health care provider, to the claimant, a relative of the 

18 claimant, or a representative of the claimant shall be inad19 missible as evidence of admission of liability or as evidence 

20 of an admission against interest. 

21 (b) APPLICATION OF RULE.—The rule established 

22 under subsection (a) applies to a benevolent gesture or ad23 mission of fault by a health care provider to a claimant 

24 or the claimant’s relative or representative (including any 

25 such gesture or admission made before the commencement 


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1 of the health care lawsuit) regarding the claimant’s dis2 comfort, pain, suffering, injury, or death, regardless of the 

3 cause, including the unanticipated outcome of any treat4 ment, consultation, care, or service provided by such pro5 vider (or by the employees, agents, or contractors of such 

6 provider) or the omission of such treatment, consultation, 

7 care, or service. 

8 (c) APPLICABILITY.—This section shall apply in all 

9 judicial proceedings commenced after the date of the en10 actment of this Act and, insofar as is just and practicable, 

11 in all judicial proceedings pending on such date of enact12 ment. 

13 (d) DEFINITIONS.—In this section: 

14 (1) BENEVOLENT GESTURE.—The term ‘‘benev15 olent gesture’’ means any statement, affirmation, 

16 gesture, or conduct, including subsequent remedial 

17 or preventative measures, expressing apology, sym18 pathy, commiseration, condolence, compassion, or a 

19 general sense of benevolence that relates solely to 

20 discomfort, pain, suffering, injury, or death as the 

21 result of the unanticipated outcome of medical care. 

22 (2) RELATIVE.—The term ‘‘relative’’ means, 

23 with respect to a claimant, the claimant’s spouse, 

24 parent, stepparent, grandparent, child, stepchild, 

25 grandchild, brother, sister, half-brother, half-sister, 


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1 spouse’s parents, or any other person who has a 

2 family-type relationship with the claimant. 

3 (3) REPRESENTATIVE.—The term ‘‘representa4 tive’’ means a legal guardian, attorney, or an agent 

5 designated to make medical decisions under a power 

6 of attorney over health care matters, a health care 

7 representative who is authorized to make health care 

8 decisions for a principal under applicable law, a sur9 rogate designated in an advance directive for health 

10 care, or any person recognized in law or custom as 

11 an agent. 

12 (4) UNANTICIPATED OUTCOME.—The term 

13 ‘‘unanticipated outcome’’ means an outcome of a 

14 medical treatment or procedure, care, or service that 

15 differs from the expected or anticipated result. 

16 SEC. 7. FAIR SHARE RULE. 

17 (a) LIABILITY.—In any health care lawsuit, each 

18 party shall be liable for that party’s several share of any 

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

20 (b) ALLOCATION OF DAMAGES.—Each party shall be 

21 liable only for the amount of damages allocated to such 

22 party in direct proportion to such party’s percentage of 

23 responsibility. 

24 (c) DETERMINATION OF RESPONSIBILITY.—For pur25 poses of this section, the trier of fact shall determine the 


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1 proportion of responsibility of each party for the claim2 ant’s harm. 

3 SEC. 8. PUNITIVE DAMAGES. 

4 (a) PUNITIVE DAMAGES AWARD.—Punitive damages 

5 may be awarded against a defendant in a health care law6 suit for a health care liability claim only if— 

7 (1) otherwise permitted by applicable State or 

8 Federal law; 

9 (2) it is proven by clear and convincing evidence 

10 that such defendant acted with malicious intent to 

11 injure the claimant, or that such defendant delib12 erately failed to avoid unnecessary injury that such 

13 defendant knew the claimant was substantially cer14 tain to suffer; and 

15 (3) compensatory damages are awarded for 

16 such claim. 

17 (b) DEMAND FOR PUNITIVE DAMAGES.— 

18 (1) COMPLAINT.—A claimant may not file a de19 mand for punitive damages in the original complaint 

20 for a health care lawsuit. 

21 (2) AMENDED COMPLAINT.—A claimant may 

22 file an amended complaint for punitive damages if 

23 the court finds, after reviewing supporting and op24 posing affidavits or after a hearing, that the claim25 ant has established by a substantial probability that 


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1 the claimant will prevail on the claim for punitive 

2 damages. 

3 (3) HEARING.— 

4 (A) REQUEST FOR PUNITIVE DAMAGES

5 HEARING.—At the request of any party in a 

6 health care lawsuit, the trier of fact shall con7 sider in a separate hearing whether punitive 

8 damages are to be awarded and the amount of 

9 such award, using the factors listed under sub10 section (c). 

11 (B) EVIDENCE INADMISSIBLE.—If a sepa12 rate punitive damages hearing is requested, any 

13 evidence introduced at such hearing that is rel14 evant only to the claim for punitive damages, as 

15 determined by applicable State law, shall be in16 admissible in any proceeding to determine 

17 whether compensatory damages are to be 

18 awarded. 

19 (c) AMOUNT OF PUNITIVE DAMAGES.— 

20 (1) FACTORS CONSIDERED.—In determining 

21 the amount of punitive damages against a party in 

22 a health care lawsuit, the trier of fact shall consider, 

23 where applicable, only the following: 

24 (A) The severity of the harm caused by the 

25 conduct of such party. 


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1 (B) The duration of the conduct or any 

2 concealment of conduct by such party. 

3 (C) The profitability of the conduct to such 

4 party. 

5 (D) The number of products sold or med6 ical procedures rendered for compensation by 

7 such party that caused the harm complained of 

8 by the claimant. 

9 (E) Any criminal penalties imposed on 

10 such party, as a result of the conduct com11 plained of by the claimant. 

12 (F) The amount of any civil fines assessed 

13 against such party as a result of the conduct 

14 complained of by the claimant. 

15 (2) MAXIMUM AWARD.—The maximum amount 

16 of punitive damages that may be awarded in a 

17 health care lawsuit is $350,000 or two times the 

18 amount of economic damages awarded, whichever is 

19 greater. 

20 (3) NO JURY NOTIFICATION.—The jury shall 

21 not be informed about the maximum award for puni22 tive damages under paragraph (2). 

23 (d) MALICIOUS INTENT TO INJURE.—In this section, 

24 the term ‘‘malicious intent to injure’’ means intentionally 


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1 causing or attempting to cause physical injury other than 

2 providing health care goods or services. 

3 SEC. 9. AUTHORIZATION OF PAYMENT OF FUTURE DAM4 AGES TO CLAIMANTS IN HEALTH CARE LAW5 SUITS. 

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

7 award of future damages, without reduction to present 

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

9 party with sufficient insurance or other assets to fund a 

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

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

12 the future damages be paid by periodic payments. 

13 (b) COURT GUIDANCE.—In any health care lawsuit, 

14 the court may be guided by the Uniform Periodic Payment 

15 of Judgments Act promulgated by the National Con16 ference of Commissioners on Uniform State Laws. 

17 (c) APPLICABILITY.—This section applies to all ac18 tions that have not been first set for trial or retrial before 

19 the effective date of this Act. 

20 SEC. 10. LIABILITY OF HEALTH CARE PROVIDERS FOR FDA21 APPROVED PRODUCTS. 

22 (a) IN GENERAL.—Except as provided in subsection 

23 (b), a health care provider who prescribes, or who dis24 penses pursuant to a prescription, a medical product ap25 proved, licensed, or cleared by the Food and Drug AdminVerDate Mar 15 2010 02:09 Jul 03, 2010 Jkt 089200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H5690.IH H5690

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1 istration may not be named as a party to a product liabil2 ity lawsuit involving such product and shall not be liable 

3 to a claimant in a class action involving such product that 

4 is brought against the manufacturer, distributor, or seller 

5 of such product. 

6 (b) CONSOLIDATION OF CASES.—Nothing in sub7 section (a) prevents a court from consolidating cases in8 volving health care providers and cases involving product 

9 liability claims against the manufacturer, distributor, or 

10 seller of a medical product. 

11 SEC. 11. EXPERT WITNESS STANDARDS. 

12 (a) REQUIREMENTS.—No individual shall be qualified 

13 to testify as an expert witness concerning issues of neg14 ligence in any health care lawsuit against a defendant un15 less such individual— 

16 (1) except as required under subsection (b), is 

17 a health care professional who— 

18 (A) is appropriately credentialed or li19 censed in 1 or more States to deliver health 

20 care services; and 

21 (B) typically treats the diagnosis or condi22 tion or provides the type of treatment under re23 view; and 

24 (2) can demonstrate by competent evidence 

25 that, as a result of training, education, knowledge, 


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1 and experience in the evaluation, diagnosis, and 

2 treatment of the disease or injury which is the sub3 ject matter of the lawsuit against the defendant, the 

4 individual was substantially familiar with applicable 

5 standards of care and practice as they relate to the 

6 act or omission which is the subject of the lawsuit 

7 on the date of the incident. 

8 (b) PHYSICIAN REVIEW.—In a health care lawsuit, 

9 if the claim of the plaintiff involved treatment that is rec10 ommended or provided by a physician (allopathic or osteo11 pathic), an individual shall not be qualified to be an expert 

12 witness under this subsection with respect to issues of neg13 ligence concerning such treatment unless such individual 

14 is a physician. 

15 (c) SPECIALTIES AND SUBSPECIALTIES.—With re16 spect to a lawsuit described in subsection (a), a court shall 

17 not permit an expert in one medical specialty or sub18 specialty to testify against a defendant in another medical 

19 specialty or subspecialty unless, in addition to a showing 

20 of substantial familiarity in accordance with subsection 

21 (a)(2), there is a showing that the standards of care and 

22 practice in the two specialty or subspecialty fields are simi23 lar. 


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1 (d) LIMITATION.—The limitations in this subsection 

2 shall not apply to expert witnesses testifying as to the de3 gree or permanency of medical or physical impairment. 

4 SEC. 12. PROTECTION OF STATES’ RIGHTS AND EFFECT ON 

5 OTHER LAWS. 

6 (a) PREEMPTION OF STATE LAW.—The provisions 

7 governing health care lawsuits set forth in this Act pre8 empt, subject to subsections (c) and (d), State law to the 

9 extent that State law prevents the application of any pro10 visions of law established by this Act. 

11 (b) PREEMPTION OF FEDERAL LAW.—The provisions 

12 governing health care lawsuits set forth in this Act super13 sede chapters 161 and 171 of title 28, United States Code, 

14 to the extent that such chapters— 

15 (1) provide for a greater amount of damages, a 

16 longer period in which a health care lawsuit may be 

17 commenced, or a reduced applicability or scope of 

18 periodic payment of future damages, than provided 

19 in this Act; or 

20 (2) prohibit the introduction of evidence regard21 ing collateral source benefits, or mandate or permit 

22 subrogation or a lien on collateral source benefits. 

23 (c) PROTECTION OF STATES’ RIGHTS AND OTHER

24 LAWS.— 


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1 (1) IN GENERAL.—This Act shall not preempt 

2 or supersede any State or Federal law that imposes 

3 greater procedural or substantive protections (in4 cluding any statute of limitations that expires sooner 

5 than statutes of limitations imposed in this Act) for 

6 health care providers and health care organizations 

7 from liability, loss, or damages than those provided 

8 by this Act, except as provided for under subsection 

9 (d)(1). 

10 (2) APPLICABLE LAW.—Any issue that is not 

11 governed by any provision of law established by this 

12 Act shall be governed by otherwise applicable State 

13 or Federal law. 

14 (d) STATE FLEXIBILITY AND FEDERAL LAW.—The 

15 provisions of this Act shall not be construed to preempt— 

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

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

18 specifies a particular monetary amount of compen19 satory or punitive damages (or the total amount of 

20 damages) that may be awarded in a health care law21 suit, regardless of whether such monetary amount is 

22 greater or lesser than is provided for by this Act; 

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

24 care lawsuit under any other provision of State or 

25 Federal law; or 


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1 (3) any State law that provides for an alter2 native dispute resolution system. 

3 (e) VACCINE INJURY.— 

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

5 of the Public Health Service Act establishes a Fed6 eral rule of law applicable to a civil action brought 

7 for a vaccine-related injury or death— 

8 (A) this Act does not affect the application 

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

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

11 that is in conflict with a rule of law of such title 

12 XXI shall not apply to such action. 

13 (2) APPLICABLE PROVISIONS.—If there is an 

14 aspect of a civil action brought for a vaccine-related 

15 injury or death to which a Federal rule of law under 

16 title XXI of the Public Health Service Act does not 

17 apply, then this Act shall apply to such aspect of 

18 such action. 

19 SEC. 13. DEFINITIONS. 

20 In this Act: 

21 (1) ALTERNATIVE DISPUTE RESOLUTION SYS22 TEM.—The term ‘‘alternative dispute resolution sys23 tem’’ means a system that provides for the resolu24 tion of health care lawsuits in a manner other than 


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1 through a civil action brought in a State or Federal 

2 court. 

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

4 any person who brings a health care lawsuit, includ5 ing a person who asserts or claims a right to legal 

6 or equitable contribution, indemnity, or subrogation, 

7 arising out of a health care liability claim, and any 

8 person on whose behalf such a claim is asserted, 

9 whether such person is deceased, incompetent, or a 

10 minor. 

11 (3) COLLATERAL SOURCE BENEFITS.—The 

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

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

14 or on behalf of a claimant, or any service, product, 

15 or other benefit provided or reasonably likely to be 

16 provided in the future to or on behalf of a claimant, 

17 as a result of the injury or wrongful death, pursuant 

18 to— 

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

20 income-disability, accident, or workers’ com21 pensation law; 

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

23 or accident insurance that provides health bene24 fits or income-disability coverage; 


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1 (C) any contract or agreement of any 

2 group, organization, partnership, or corporation 

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

4 medical, hospital, dental, or income-disability 

5 benefits; or 

6 (D) any other publicly or privately funded 

7 program. 

8 (4) COMPENSATORY DAMAGES.—The term 

9 ‘‘compensatory damages’’ means economic damages 

10 and noneconomic damages. 

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

12 damages’’ means objectively verifiable monetary 

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

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

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

16 past and future medical expenses, loss of past and 

17 future earnings, cost of obtaining domestic services, 

18 loss of employment, and loss of business or employ19 ment opportunities. 

20 (6) 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, a health care provider, or an individual working 

24 under the supervision of a health care provider, that 

25 relate to the diagnosis, prevention, or treatment of 


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1 any human disease or impairment, or the assessment 

2 or care of the health of human beings. 

3 (7) HEALTH CARE LAWSUIT.—The term 

4 ‘‘health care lawsuit’’— 

5 (A) means any health care liability claim 

6 affecting interstate commerce that is brought in 

7 a State or Federal court or pursuant to an al8 ternative dispute resolution system; and 

9 (B) does not include a claim or action that 

10 is based on criminal liability, that seeks civil 

11 fines or penalties paid to Federal, State, or 

12 local government, or that is grounded in anti13 trust. 

14 (8) HEALTH CARE LIABILITY CLAIM.—The 

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

16 by any person, whether or not pursuant to an alter17 native dispute resolution system, against a health 

18 care provider, health care organization, or the manu19 facturer, distributor, supplier, marketer, promoter, 

20 or seller of a medical product, including third-party 

21 claims, cross-claims, counterclaims, or contribution 

22 claims, that is based upon the provision of, use of, 

23 or payment for (or the failure to provide, use, or pay 

24 for) health care goods or services or any medical 

25 product, for injury or wrongful death, regardless of 


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1 the number of plaintiffs, defendants, or other par2 ties, or the number of causes of action. 

3 (9) HEALTH CARE ORGANIZATION.—The term 

4 ‘‘health care organization’’— 

5 (A) means any person or entity that is ob6 ligated to provide or pay for health care goods 

7 or services under any health insurance plan; 

8 and 

9 (B) includes any person or entity acting 

10 under a contract or arrangement with a health 

11 care organization to provide or administer any 

12 healthcare goods or services. 

13 (10) 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, or exempted from such requirement by 

18 other law or regulation. 

19 (11) MEDICAL PRODUCT.— 

20 (A) IN GENERAL.—The term ‘‘medical 

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

22 product intended for humans. 

23 (B) ADDITIONAL DEFINITIONS.—For pur24 poses of subparagraph (A): 


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1 (i) DRUG.—The term ‘‘drug’’ has the 

2 meaning given such term in section 

3 201(g)(1) of the Federal Food, Drug, and 

4 Cosmetic Act (21 U.S.C. 321(g)(1)). 

5 (ii) DEVICE.—The term ‘‘device’’ has 

6 the meaning given such term in section 

7 201(h) of the Federal Food, Drug, and 

8 Cosmetic Act (21 U.S.C. 321(h)). 

9 (iii) BIOLOGICAL PRODUCT.—The 

10 term ‘‘biological product’’ has the meaning 

11 given such term in section 351(i) of the 

12 Public Health Service Act (42 U.S.C. 

13 262(i)). 

14 (12) MINOR.—The term ‘‘minor’’ means an in15 dividual who is less than 18 years of age. 

16 (13) NONECONOMIC DAMAGES.—The term 

17 ‘‘noneconomic damages’’ means damages for phys18 ical and emotional pain, suffering, inconvenience, 

19 physical impairment, mental anguish, disfigurement, 

20 loss of enjoyment of life, loss of society and compan21 ionship, loss of consortium (other than loss of do22 mestic service), hedonic damages, injury to reputa23 tion, and all other nonpecuniary losses of any kind 

24 or nature. 


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1 (14) PUNITIVE DAMAGES.—The term ‘‘punitive 

2 damages’’— 

3 (A) means damages awarded, for the pur4 pose of punishment or deterrence, and not sole5 ly for compensatory purposes, against a health 

6 care provider, health care organization, or a 

7 manufacturer, distributor, or supplier of a med8 ical product; and 

9 (B) does not include economic damages or 

10 noneconomic damages. 

11 (15) STATE.—The term ‘‘State’’ means each of 

12 the several States, the District of Columbia, the 

13 Commonwealth of Puerto Rico, the United States 

14 Virgin Islands, Guam, American Samoa, the Com15 monwealth of the Northern Mariana Islands, the 

16 Trust Territory of the Pacific Islands, and any other 

17 territory or possession of the United States, or any 

18 political subdivision thereof. 

19 SEC. 14. APPLICABILITY. 

20 Except as otherwise provided, this Act shall apply to 

21 any health care lawsuit brought in a Federal or State 

22 court, or subject to an alternative dispute resolution sys23 tem, that is initiated on or after the date of the enactment 

24 of this Act. 

Æ 


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