I 

116TH CONGRESS 

1ST SESSION H. R. 3656 

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 

JULY 9, 2019 

Mr. HUDSON (for himself, Mr. MARSHALL, and Mr. BUCSHON) 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; TABLE OF CONTENTS. 

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

5 ‘‘Accessible Care by Curbing Excessive lawSuitS Act of 

6 2019’’ or the ‘‘ACCESS Act of 2019’’. 


pamtmann on DSKBFK8HB2PROD with BILLS
2 

•HR 3656 IH

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

2 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings and purpose. 

Sec. 3. Encouraging speedy resolution of claims. 

Sec. 4. Compensating patient injury. 

Sec. 5. Maximizing patient recovery. 

Sec. 6. Additional health benefits. 

Sec. 7. Authorization of payment of future damages to claimants in health care 

lawsuits. 

Sec. 8. Product liability for health care providers. 

Sec. 9. Communications following unanticipated outcome. 

Sec. 10. Notice of intent to commence lawsuit. 

Sec. 11. Affidavit of merit. 

Sec. 12. Expert witness qualifications. 

Sec. 13. Definitions. 

Sec. 14. Effect on other laws. 

Sec. 15. Rules of construction. 

Sec. 16. Effective date. 

3 SEC. 2. FINDINGS AND PURPOSE. 

4 (a) FINDINGS.— 

5 (1) EFFECT ON HEALTH CARE ACCESS AND

6 COSTS.—Congress finds that the current civil justice 

7 system is adversely affecting patient access to health 

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

9 health care, in that the health care liability system 

10 without reform is a costly and inefficient mechanism 

11 for resolving claims of health care liability and com12 pensating injured patients, and is a deterrent to the 

13 sharing of information among health care profes14 sionals which impedes efforts to improve patient 

15 safety and quality of care. 

16 (2) EFFECT ON FEDERAL SPENDING.— 


pamtmann on DSKBFK8HB2PROD with BILLS
3 

•HR 3656 IH

1 (A) Congress finds that the health care li2 ability litigation systems existing throughout 

3 the United States have a significant effect on 

4 the amount, distribution, and use of Federal 

5 funds because of— 

6 (i) the large number of individuals 

7 who receive health care benefits under pro8 grams operated or financed by the Federal 

9 Government; 

10 (ii) the large number of individuals 

11 who benefit because of the exclusion from 

12 Federal taxes of the amounts spent to pro13 vide them with health insurance benefits; 

14 and 

15 (iii) the large number of health care 

16 providers who provide items or services for 

17 which the Federal Government makes pay18 ments. 

19 (B) Congress finds that the Federal deficit 

20 would be reduced by $62 billion over the next 

21 decade if Federal health care liability reforms 

22 were enacted, as verified by the Congressional 

23 Budget Office. 

24 (3) EFFECT ON INTERSTATE COMMERCE.— 

25 Congress finds that the health care and insurance 


pamtmann on DSKBFK8HB2PROD with BILLS
4 

•HR 3656 IH

1 industries are industries affecting interstate com2 merce and the health care liability litigation systems 

3 existing throughout the United States are activities 

4 that affect interstate commerce by contributing to 

5 the high costs of health care and premiums for 

6 health care liability insurance purchased by health 

7 care system providers. 

8 (b) PURPOSE.—It is the purpose of this Act to imple9 ment reasonable, comprehensive, and effective health care 

10 liability reforms designed to— 

11 (1) improve the availability of health care serv12 ices in cases in which health care liability actions 

13 have been shown to be a factor in the decreased 

14 availability of services; 

15 (2) reduce the incidence of ‘‘defensive medi16 cine’’ and lower the cost of health care liability in17 surance, all of which contribute to the escalation of 

18 health care costs; 

19 (3) ensure that persons with meritorious health 

20 care injury claims receive fair and adequate com21 pensation, including reasonable noneconomic dam22 ages; 

23 (4) improve the fairness and cost-effectiveness 

24 of our current health care liability system to resolve 

25 disputes over, and provide compensation for, health 


pamtmann on DSKBFK8HB2PROD with BILLS
5 

•HR 3656 IH

1 care liability by reducing uncertainty in the amount 

2 of compensation provided to injured individuals; and 

3 (5) provide an increased sharing of information 

4 in the health care system which will reduce unin5 tended injury and improve patient care. 

6 SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

7 (a) STATUTE OF LIMITATIONS.—The time for the 

8 commencement of a health care lawsuit shall be 3 years 

9 after the date of injury or 1 year after the claimant dis10 covers, or through the use of reasonable diligence should 

11 have discovered, the injury, whichever occurs first. In no 

12 event shall the time for commencement of a health care 

13 lawsuit exceed 3 years after the date of injury unless tolled 

14 for any of the following— 

15 (1) upon proof of fraud; 

16 (2) intentional concealment; or 

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

18 therapeutic or diagnostic purpose or effect, in the 

19 person of the injured person. 

20 Actions by a minor shall be commenced within 3 years 

21 from the date of the injury except that actions by a minor 

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

23 3 years of injury, or 1 year after the injury is discovered, 

24 or through the use of reasonable diligence should have 

25 been discovered, or prior to the minor’s 8th birthday, 


pamtmann on DSKBFK8HB2PROD with BILLS
6 

•HR 3656 IH

1 whichever provides a longer period. Such time limitation 

2 shall be tolled for minors for any period during which a 

3 parent or guardian and a health care provider have com4 mitted fraud or collusion in the failure to bring an action 

5 on behalf of the injured minor. 

6 (b) STATE FLEXIBILITY.—No provision of Sub7 section (a) shall be construed to preempt any state law 

8 (whether effective before, on, or after the date of the en9 actment of this Act) that— 

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

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

12 claimant discovers, or through the use of reasonable 

13 diligence should have discovered, the injury, for the 

14 filing of a health care lawsuit; 

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

16 filing of lawsuits by a minor; 

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

18 date of the alleged negligence; or 

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

20 of health care lawsuit. 

21 SEC. 4. COMPENSATING PATIENT INJURY. 

22 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

23 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 

24 health care lawsuit, nothing in this Act shall limit a claimVerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656

pamtmann on DSKBFK8HB2PROD with BILLS
7 

•HR 3656 IH

1 ant’s recovery of the full amount of the available economic 

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

3 (b) ADDITIONAL NONECONOMIC DAMAGES.—In any 

4 health care lawsuit, the amount of noneconomic damages, 

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

6 number of parties against whom the action is brought or 

7 the number of separate claims or actions brought with re8 spect to the same injury. 

9 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

10 DAMAGES.—For purposes of applying the limitation in 

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

12 discounted to present value. The jury shall not be in13 formed about the maximum award for noneconomic dam14 ages. An award for noneconomic damages in excess of 

15 $250,000 shall be reduced either before the entry of judg16 ment, or by amendment of the judgment after entry of 

17 judgment, and such reduction shall be made before ac18 counting for any other reduction in damages required by 

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

20 noneconomic damages and the combined awards exceed 

21 $250,000, the future noneconomic damages shall be re22 duced first. 

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

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

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


pamtmann on DSKBFK8HB2PROD with BILLS
8 

•HR 3656 IH

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

2 damages allocated to such party in direct proportion to 

3 such party’s percentage of responsibility. Whenever a 

4 judgment of liability is rendered as to any party, a sepa5 rate judgment shall be rendered against each such party 

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

7 this section, the trier of fact shall determine the propor8 tion of responsibility of each party for the claimant’s 

9 harm. 

10 (e) STATE FLEXIBILITY.—No provision of this sec11 tion 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 specifies a particular monetary amount of 

14 economic or noneconomic damages (or the total amount 

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

16 regardless of whether such monetary amount is greater 

17 or lesser than is provided for under this section. 

18 SEC. 5. MAXIMIZING PATIENT RECOVERY. 

19 (a) COURT SUPERVISION OF SHARE OF DAMAGES

20 ACTUALLY PAID TO CLAIMANTS.—In any health care law21 suit, the court shall supervise the arrangements for pay22 ment of damages to protect against conflicts of interest 

23 that may have the effect of reducing the amount of dam24 ages awarded that are actually paid to claimants. In par25 ticular, in any health care lawsuit in which the attorney 


pamtmann on DSKBFK8HB2PROD with BILLS
9 

•HR 3656 IH

1 for a party claims a financial stake in the outcome by vir2 tue of a contingent fee, the court shall have the power 

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

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

5 claimant based upon the interests of justice and principles 

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

7 for representing all claimants in a health care lawsuit ex8 ceed the following limits: 

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

10 by the claimant(s). 

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

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

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

14 recovered by the claimant(s). 

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

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

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

18 shall apply whether the recovery is by judgment, settle19 ment, mediation, arbitration, or any other form of alter20 native dispute resolution. In a health care lawsuit involv21 ing a minor or incompetent person, a court retains the 

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

23 the maximum permitted under this section. The require24 ment for court supervision in the first two sentences of 

25 subsection (a) applies only in civil actions. 


pamtmann on DSKBFK8HB2PROD with BILLS
10 

•HR 3656 IH

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 a lesser percentage or lesser total 

5 value of damages which may be claimed by an attorney 

6 representing a claimant in a health care lawsuit. 

7 SEC. 6. ADDITIONAL HEALTH BENEFITS. 

8 (a) COLLATERAL SOURCE BENEFITS.—In any health 

9 care lawsuit involving injury or wrongful death, any party 

10 may introduce evidence of collateral source benefits. If a 

11 party elects to introduce such evidence, any opposing party 

12 may introduce evidence of any amount paid or contributed 

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

14 by or on behalf of the opposing party to secure the right 

15 to such collateral source benefits. 

16 (b) SUBROGATION.—No provider of collateral source 

17 benefits shall recover any amount against the claimant or 

18 receive any lien or credit against the claimant’s recovery 

19 or be equitably or legally subrogated to the right of the 

20 claimant in a health care lawsuit involving injury or 

21 wrongful death. 

22 (c) APPLICABILITY.—This section shall apply to any 

23 health care lawsuit that is settled as well as a health care 

24 lawsuit that is resolved by a fact finder. This section shall 

25 not apply to section 1862(b) (42 U.S.C. 1395y(b)) or secVerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656

pamtmann on DSKBFK8HB2PROD with BILLS
11 

•HR 3656 IH

1 tion 1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social 

2 Security Act. 

3 (d) STATE FLEXIBILITY.—No provision of subsection 

4 (a) shall be construed to preempt any State law (whether 

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

6 this Act) that specifies a mandatory offset of collateral 

7 source benefits against an award in a health care liability 

8 lawsuit. 

9 SEC. 7. AUTHORIZATION OF PAYMENT OF FUTURE DAM10 AGES TO CLAIMANTS IN HEALTH CARE LAW11 SUITS. 

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

13 award of future damages, without reduction to present 

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

15 party with sufficient insurance or other assets to fund a 

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

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

18 the future damages be paid by periodic payments, in ac19 cordance with the Uniform Periodic Payment of Judg20 ments Act promulgated by the National Conference of 

21 Commissioners on Uniform State Laws. 

22 (b) APPLICABILITY.—This section applies to all ac23 tions which have not been first set for trial or retrial be24 fore the effective date of this Act. 


pamtmann on DSKBFK8HB2PROD with BILLS
12 

•HR 3656 IH

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. 8. 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. 9. 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, 


pamtmann on DSKBFK8HB2PROD with BILLS
13 

•HR 3656 IH

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. 10. NOTICE OF INTENT TO COMMENCE LAWSUIT. 

12 (a) ADVANCE NOTICE.—A person shall not com13 mence an action against a health care provider unless the 

14 person has given the health care provider 90 days written 

15 notice before the action is commenced. 

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

17 provider filed within 6 months of the statute of limitations 

18 expiring as to any claimant, or within 1 year of the statute 

19 of repose expiring as to any claimant, shall be exempt 

20 from compliance with this section. 

21 (c) 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 establishes a different time period for the 

25 filing of written notice. 


pamtmann on DSKBFK8HB2PROD with BILLS
14 

•HR 3656 IH

1 SEC. 11. AFFIDAVIT OF MERIT. 

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

3 the plaintiff in an action alleging medical negligence or, 

4 if the plaintiff is represented by an attorney, the plaintiff’s 

5 attorney shall file simultaneously with the health care law6 suit an affidavit of merit signed by a health professional 

7 who meets the requirements for an expert witness under 

8 Sec. 12 of this Act. The affidavit of merit shall certify 

9 that the health professional has reviewed the notice and 

10 all medical records supplied to him or her by the plaintiff’s 

11 attorney concerning the allegations contained in the notice 

12 and shall contain a statement of each of the following: 

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

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

15 applicable standard of practice or care was breached 

16 by the health professional or health facility receiving 

17 the notice. 

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

19 omitted by the health professional or health facility 

20 in order to have complied with the applicable stand21 ard of practice or care. 

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

23 standard of practice or care was the proximate cause 

24 of the injury alleged in the notice. 

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


pamtmann on DSKBFK8HB2PROD with BILLS
15 

•HR 3656 IH

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 (1). 

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. 12. EXPERT WITNESS QUALIFICATIONS. 

14 (a) IN GENERAL.—In any health care lawsuit, an in15 dividual shall not give expert testimony on the appropriate 

16 standard of practice or care involved unless the individual 

17 is licensed as a health professional in 1 or more States 

18 and the individual meets the following criteria: 

19 (1) If the party against whom or on whose be20 half the testimony is to be offered is or claims to be 

21 a specialist, the expert witness shall specialize at the 

22 time of the occurrence that is the basis for the law23 suit in the same specialty or claimed specialty as the 

24 party against whom or on whose behalf the testi25 mony is to be offered. If the party against whom or 


pamtmann on DSKBFK8HB2PROD with BILLS
16 

•HR 3656 IH

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

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

3 expert witness shall be a specialist who is board cer4 tified in that specialty or claimed specialty. 

5 (2) During the 1-year period immediately pre6 ceding the occurrence of the action that gave rise to 

7 the lawsuit, the expert witness shall have devoted a 

8 majority of the individual’s professional time to one 

9 or more of the following: 

10 (A) The active clinical practice of the same 

11 health profession as the defendant and, if the 

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

13 same specialty or claimed specialty. 

14 (B) The instruction of students in an ac15 credited health professional school or accredited 

16 residency or clinical research program in the 

17 same health profession as the defendant and, if 

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

19 an accredited health professional school or ac20 credited residency or clinical research program 

21 in the same specialty or claimed specialty. 

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

23 the expert witness shall have devoted a majority of 

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


pamtmann on DSKBFK8HB2PROD with BILLS
17 

•HR 3656 IH

1 preceding the occurrence of the action giving rise to 

2 the lawsuit to one or more of the following: 

3 (A) Active clinical practice as a general 

4 practitioner. 

5 (B) Instruction of students in an accred6 ited health professional school or accredited 

7 residency or clinical research program in the 

8 same health profession as the defendant. 

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

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

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

12 the provisions of paragraph (1) apply as if the person were 

13 the party or defendant against whom or on whose behalf 

14 the testimony is offered. 

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

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

17 lawsuit to disqualify an expert witness on grounds other 

18 than the qualifications set forth under this subsection. 

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

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

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

22 lawsuit. 

23 (e) 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 


pamtmann on DSKBFK8HB2PROD with BILLS
18 

•HR 3656 IH

1 this Act) that places additional qualification requirements 

2 upon any individual testifying as an expert witness. 

3 SEC. 13. DEFINITIONS. 

4 In this Act: 

5 (1) ALTERNATIVE DISPUTE RESOLUTION SYS6 TEM; ADR.—The term ‘‘alternative dispute resolution 

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

8 for the resolution of health care lawsuits in a man9 ner other than through a civil action brought in a 

10 State or Federal court. 

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

12 any person who brings a health care lawsuit, includ13 ing a person who asserts or claims a right to legal 

14 or equitable contribution, indemnity, or subrogation, 

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

16 and any person on whose behalf such a claim is as17 serted or such an action is brought, whether de18 ceased, incompetent, or a minor. 

19 (3) COLLATERAL SOURCE BENEFITS.—The 

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

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

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

23 or other benefit provided or reasonably likely to be 

24 provided in the future to or on behalf of the claimVerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656

pamtmann on DSKBFK8HB2PROD with BILLS
19 

•HR 3656 IH

1 ant, as a result of the injury or wrongful death, pur2 suant to— 

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

4 income-disability, accident, or workers’ com5 pensation law; 

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

7 or accident insurance that provides health bene8 fits or income-disability coverage; 

9 (C) any contract or agreement of any 

10 group, organization, partnership, or corporation 

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

12 medical, hospital, dental, or income-disability 

13 benefits; and 

14 (D) any other publicly or privately funded 

15 program. 

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

17 fee’’ includes all compensation to any person or per18 sons which is payable only if a recovery is effected 

19 on behalf of one or more claimants. 

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

21 damages’’ means objectively verifiable monetary 

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

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

24 medical products, such as past and future medical 

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


pamtmann on DSKBFK8HB2PROD with BILLS
20 

•HR 3656 IH

1 obtaining domestic services, loss of employment, and 

2 loss of business or employment opportunities, unless 

3 otherwise defined under applicable state law. In no 

4 circumstances shall damages for health care services 

5 or medical products exceed the amount actually paid 

6 or incurred by or on behalf of the claimant. 

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

8 damages’’ means any damages that are incurred 

9 after the date of judgment, settlement, or other reso10 lution (including mediation, or any other form of al11 ternative dispute resolution). 

12 (7) HEALTH CARE LAWSUIT.—The term 

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

14 claim concerning the provision of goods or services 

15 for which coverage was provided in whole or in part 

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

17 any health care liability action concerning the provi18 sion of goods or services for which coverage was pro19 vided in whole or in part via a Federal program, 

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

21 court or pursuant to an alternative dispute resolu22 tion system, against a health care provider regard23 less of the theory of liability on which the claim is 

24 based, or the number of claimants, plaintiffs, de25 fendants, or other parties, or the number of claims 


pamtmann on DSKBFK8HB2PROD with BILLS
21 

•HR 3656 IH

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

2 health care liability claim. Such term does not in3 clude a claim or action which is based on criminal 

4 liability; which seeks civil fines or penalties paid to 

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

6 grounded in antitrust. 

7 (8) HEALTH CARE LIABILITY ACTION.—The 

8 term ‘‘health care liability action’’ means a civil ac9 tion brought in a State or Federal court or pursuant 

10 to an alternative dispute resolution system, against 

11 a health care provider regardless of the theory of li12 ability on which the claim is based, or the number 

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

14 number of causes of action, in which the claimant al15 leges a health care liability claim. 

16 (9) HEALTH CARE LIABILITY CLAIM.—The 

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

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

19 against a health care provider, including, but not 

20 limited to, third-party claims, cross-claims, counter21 claims, or contribution claims, which are based upon 

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

23 use) health care services or medical products, re24 gardless of the theory of liability on which the claim 


pamtmann on DSKBFK8HB2PROD with BILLS
22 

•HR 3656 IH

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

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

3 (10) HEALTH CARE PROVIDER.—The term 

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

5 required by State or Federal laws or regulations to 

6 be licensed, registered, or certified to provide health 

7 care services, and being either so licensed, reg8 istered, or certified, or exempted from such require9 ment by other statute or regulation, as well as any 

10 other individual or entity defined as a health care 

11 provider, health care professional, or health care in12 stitution under state law. 

13 (11) HEALTH CARE SERVICES.—The term 

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

15 goods or services by a health care provider, or by 

16 any individual working under the supervision of a 

17 health care provider, that relates to the diagnosis, 

18 prevention, or treatment of any human disease or 

19 impairment, or the assessment or care of the health 

20 of human beings. 

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

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

23 intended for humans, and the terms ‘‘drug’’, ‘‘de24 vice’’, and ‘‘biological product’’ have the meanings 

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


pamtmann on DSKBFK8HB2PROD with BILLS
23 

•HR 3656 IH

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

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

3 Public Health Service Act (42 U.S.C. 262(a)), re4 spectively, including any component or raw material 

5 used therein, but excluding health care services. 

6 (13) NONECONOMIC DAMAGES.—The term 

7 ‘‘noneconomic damages’’ means damages for phys8 ical and emotional pain, suffering, inconvenience, 

9 physical impairment, mental anguish, disfigurement, 

10 loss of enjoyment of life, loss of society and compan11 ionship, loss of consortium (other than loss of do12 mestic service), hedonic damages, injury to reputa13 tion, and all other nonpecuniary losses of any kind 

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

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

16 or medical products, unless otherwise defined under 

17 applicable state law. 

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

19 the net sum recovered after deducting any disburse20 ments or costs incurred in connection with prosecu21 tion or settlement of the claim, including all costs 

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

23 incurred by the plaintiff and the attorneys’ office 

24 overhead costs or charges for legal services are not 

25 deductible disbursements or costs for such purpose. 


pamtmann on DSKBFK8HB2PROD with BILLS
24 

•HR 3656 IH

1 (15) RELATIVE.—The term ‘‘relative’’ means a 

2 victim’s spouse, parent, grandparent, stepfather, 

3 stepmother, child, grandchild, brother, sister, half 

4 brother, half sister, or spouse’s parents. The term 

5 includes said relationships that are created as a re6 sult of adoption. 

7 (16) REPRESENTATIVE.—The term ‘‘represent8 ative’’ means a legal guardian, attorney, person des9 ignated to make decisions on behalf of a patient 

10 under a medical power of attorney, or any person 

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

12 (17) STATE.—The term ‘‘State’’ means each of 

13 the several States, the District of Columbia, the 

14 Commonwealth of Puerto Rico, the Virgin Islands, 

15 Guam, American Samoa, the Northern Mariana Is16 lands, the Trust Territory of the Pacific Islands, and 

17 any other territory or possession of the United 

18 States, or any political subdivision thereof. 

19 (18) UNANTICIPATED OUTCOME.—The term 

20 ‘‘unanticipated outcome’’ means the outcome of a 

21 medical treatment or procedure that differs from an 

22 expected result. 

23 SEC. 14. EFFECT ON OTHER LAWS. 

24 (a) VACCINE INJURY.— 


pamtmann on DSKBFK8HB2PROD with BILLS
25 

•HR 3656 IH

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

2 Health Service Act establishes a Federal rule of law 

3 applicable to a civil action brought for a vaccine-re4 lated injury or death— 

5 (A) this Act does not affect the application 

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

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

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

9 shall not apply to such action. 

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

11 brought for a vaccine-related injury or death to 

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

13 Public Health Service Act does not apply, then this 

14 Act or otherwise applicable law (as determined 

15 under this Act) will apply to such aspect of such ac16 tion. 

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

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

19 any defense available to a defendant in a health care law20 suit or action under any other provision of Federal law. 

21 SEC. 15. RULES OF CONSTRUCTION. 

22 (a) HEALTH CARE LAWSUITS.—Unless otherwise 

23 specified in this Act, the provisions governing health care 

24 lawsuits set forth in this Act preempt, subject to sub25 sections (b) and (c), State law to the extent that State 


pamtmann on DSKBFK8HB2PROD with BILLS
26 

•HR 3656 IH

1 law prevents the application of any provisions of law estab2 lished by or under this Act. The provisions governing 

3 health care lawsuits set forth in this Act supersede chapter 

4 171 of title 28, United States Code, to the extent that 

5 such chapter— 

6 (1) provides for a greater amount of damages 

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

8 care lawsuit may be commenced, or a reduced appli9 cability or scope of periodic payment of future dam10 ages, than provided in this Act; or 

11 (2) prohibits the introduction of evidence re12 garding collateral source benefits, or mandates or 

13 permits subrogation or a lien on collateral source 

14 benefits. 

15 (b) PROTECTION OF STATES’ RIGHTS AND OTHER

16 LAWS.—Any issue that is not governed by any provision 

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

18 standards of negligence) shall be governed by otherwise 

19 applicable State or Federal law. 

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

21 shall be construed to preempt any defense available to a 

22 party in a health care lawsuit under any other provision 

23 of State or Federal law. 


pamtmann on DSKBFK8HB2PROD with BILLS
27 

•HR 3656 IH

1 SEC. 16. 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. 

Æ 


pamtmann on DSKBFK8HB2PROD with BILLS