II 

108TH CONGRESS 

2D SESSION S. 2207

To improve women’s access to health care services, and the access of all 

individuals to emergency and trauma care services, by reducing the 

excessive burden the liability system places on the delivery of such services. 

IN THE SENATE OF THE UNITED STATES 

MARCH 12, 2004

Mr. GREGG (for himself and Mr. ENSIGN) introduced the following bill; which 

was read the first time 

A BILL

To improve women’s access to health care services, and the 

access of all individuals to emergency and trauma care 

services, by reducing the excessive burden the liability 

system places on the delivery of such services.

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 ‘‘Pregnancy and Trau5 ma Care Access Protection Act of 2004’’. 

6 SEC. 2. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

7 (a) IN GENERAL.—Except as otherwise provided for 

8 in this section, the time for the commencement of a health 
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1 care lawsuit shall be 3 years after the date of manifesta2 tion of injury or 1 year after the claimant discovers, or 

3 through the use of reasonable diligence should have discov4 ered, the injury, whichever occurs first. 

5 (b) GENERAL EXCEPTION.—The time for the com6 mencement of a health care lawsuit shall not exceed 3 

7 years after the date of manifestation of injury unless the 

8 tolling of time was delayed as a result of—

9 (1) fraud; 

10 (2) intentional concealment; or 

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

12 therapeutic or diagnostic purpose or effect, in the 

13 person of the injured person. 

14 (c) MINORS.—An action by a minor shall be com15 menced within 3 years from the date of the alleged mani16 festation of injury except that if such minor is under the 

17 full age of 6 years, such action shall be commenced within 

18 3 years of the manifestation of injury, or prior to the 

19 eighth birthday of the minor, whichever provides a longer 

20 period. Such time limitation shall be tolled for minors for 

21 any period during which a parent or guardian and a health 

22 care provider or health care organization have committed 

23 fraud or collusion in the failure to bring an action on be24 half of the injured minor. 
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1 SEC. 3. COMPENSATING PATIENT INJURY. 

2 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

3 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 

4 health care lawsuit, nothing in this Act shall limit the re5 covery by a claimant of the full amount of the available 

6 economic damages, notwithstanding the limitation con7 tained in subsection (b). 

8 (b) ADDITIONAL NONECONOMIC DAMAGES.—In any 

9 health care lawsuit, the amount of noneconomic damages 

10 recovered, if otherwise available under applicable Federal 

11 or State law, may be as much as $250,000, regardless of 

12 the number of parties against whom the action is brought 

13 or the number of separate claims or actions brought with 

14 respect to the same injury. 

15 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

16 DAMAGES.—In any health care lawsuit—

17 (1) an award for future noneconomic damages 

18 shall not be discounted to present value; 

19 (2) the jury shall not be informed about the 

20 maximum award for noneconomic damages under 

21 subsection (b); 

22 (3) an award for noneconomic damages in ex23 cess of $250,000 shall be reduced either before the 

24 entry of judgment, or by amendment of the judg25 ment after entry of judgment, and such reduction 
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1 shall be made before accounting for any other reduc2 tion in damages required by law; and 

3 (4) if separate awards are rendered for past 

4 and future noneconomic damages and the combined 

5 awards exceed $250,000, the future noneconomic 

6 damages shall be reduced first. 

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

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

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

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

11 damages allocated to such party in direct proportion to 

12 such party’s percentage of responsibility. A separate judg13 ment shall be rendered against each such party for the 

14 amount allocated to such party. For purposes of this sec15 tion, the trier of fact shall determine the proportion of 

16 responsibility of each party for the claimant’s harm. 

17 SEC. 4. MAXIMIZING PATIENT RECOVERY. 

18 (a) COURT SUPERVISION OF SHARE OF DAMAGES

19 ACTUALLY PAID TO CLAIMANTS.—

20 (1) IN GENERAL.—In any health care lawsuit, 

21 the court shall supervise the arrangements for pay22 ment of damages to protect against conflicts of in23 terest that may have the effect of reducing the 

24 amount of damages awarded that are actually paid 

25 to claimants. 
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1 (2) CONTINGENCY FEES.—

2 (A) IN GENERAL.—In any health care law3 suit in which the attorney for a party claims a 

4 financial stake in the outcome by virtue of a 

5 contingent fee, the court shall have the power 

6 to restrict the payment of a claimant’s damage 

7 recovery to such attorney, and to redirect such 

8 damages to the claimant based upon the inter9 ests of justice and principles of equity. 

10 (B) LIMITATION.—The total of all contin11 gent fees for representing all claimants in a 

12 health care lawsuit shall not exceed the fol13 lowing limits: 

14 (i) 40 percent of the first $50,000 re15 covered by the claimant(s). 

(ii) 331 16 ⁄3 percent of the next $50,000 

17 recovered by the claimant(s). 

18 (iii) 25 percent of the next $500,000 

19 recovered by the claimant(s). 

20 (iv) 15 percent of any amount by 

21 which the recovery by the claimant(s) is in 

22 excess of $600,000. 

23 (b) APPLICABILITY.—

24 (1) IN GENERAL.—The limitations in subsection 

25 (a) shall apply whether the recovery is by judgment,
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•S 2207 IS 

1 settlement, mediation, arbitration, or any other form 

2 of alternative dispute resolution. 

3 (2) MINORS.—In a health care lawsuit involving 

4 a minor or incompetent person, a court retains the 

5 authority to authorize or approve a fee that is less 

6 than the maximum permitted under this section. 

7 (c) EXPERT WITNESSES.—

8 (1) REQUIREMENT.—No individual shall be 

9 qualified to testify as an expert witness concerning 

10 issues of negligence in any health care lawsuit 

11 against a defendant unless such individual—

12 (A) except as required under paragraph 

13 (2), is a health care professional who—

14 (i) is appropriately credentialed or li15 censed in 1 or more States to deliver 

16 health care services; and 

17 (ii) typically treats the diagnosis or 

18 condition or provides the type of treatment 

19 under review; and 

20 (B) can demonstrate by competent evi21 dence that, as a result of training, education, 

22 knowledge, and experience in the evaluation, di23 agnosis, and treatment of the disease or injury 

24 which is the subject matter of the lawsuit 

25 against the defendant, the individual was sub-
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1 stantially familiar with applicable standards of 

2 care and practice as they relate to the act or 

3 omission which is the subject of the lawsuit on 

4 the date of the incident. 

5 (2) PHYSICIAN REVIEW.—In a health care law6 suit, if the claim of the plaintiff involved treatment 

7 that is recommended or provided by a physician 

8 (allopathic or osteopathic), an individual shall not be 

9 qualified to be an expert witness under this sub10 section with respect to issues of negligence con11 cerning such treatment unless such individual is a 

12 physician. 

13 (3) OTHER HEALTH CARE PROVIDERS.—With 

14 respect to a lawsuit described in paragraph (1), a 

15 court shall not permit an expert in one health care 

16 provider field to testify against a defendant in an17 other health care provider field unless, in addition to 

18 a showing of substantial familiarity in accordance 

19 with paragraph (1)(B), there is a showing that the 

20 standards of care and practice in the two health care 

21 provider fields are similar. 

22 (4) LIMITATION.—The limitations in this sub23 section shall not apply to expert witnesses testifying 

24 as to the degree or permanency of medical or phys25 ical impairment. 
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1 SEC. 5. PROMOTING FAIRNESS IN RECOVERING HEALTH 

2 BENEFITS AND PREVENTING DOUBLE RECOV3 ERIES. 

4 (a) IN GENERAL.—The amount of any damages re5 ceived by a claimant in any health care lawsuit shall be 

6 reduced by the court by the amount of any collateral 

7 source benefits to which the claimant is entitled, less any 

8 insurance premiums or other payments made by the claim9 ant (or by the spouse, parent, child, or legal guardian of 

10 the claimant) to obtain or secure such benefits. 

11 (b) PRESERVATION OF CURRENT LAW.—Where a 

12 payor of collateral source benefits has a right of recovery 

13 by reimbursement or subrogation and such right is per14 mitted under Federal or State law, subsection (a) shall 

15 not apply. 

16 (c) APPLICATION OF PROVISION.—This section shall 

17 apply to any health care lawsuit that is settled or resolved 

18 by a fact finder. 

19 SEC. 6. PUNITIVE DAMAGES. 

20 (a) PUNITIVE DAMAGES PERMITTED.—

21 (1) IN GENERAL.—Punitive damages may, if 

22 otherwise available under applicable State or Federal 

23 law, be awarded against any person in a health care 

24 lawsuit only if it is proven by clear and convincing 

25 evidence that such person acted with malicious in26 tent to injure the claimant, or that such person de-
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1 liberately failed to avoid unnecessary injury that 

2 such person knew the claimant was substantially 

3 certain to suffer. 

4 (2) FILING OF LAWSUIT.—No demand for puni5 tive damages shall be included in a health care law6 suit as initially filed. A court may allow a claimant 

7 to file an amended pleading for punitive damages 

8 only upon a motion by the claimant and after a find9 ing by the court, upon review of supporting and op10 posing affidavits or after a hearing, after weighing 

11 the evidence, that the claimant has established by a 

12 substantial probability that the claimant will prevail 

13 on the claim for punitive damages. 

14 (3) SEPARATE PROCEEDING.—At the request of 

15 any party in a health care lawsuit, the trier of fact 

16 shall consider in a separate proceeding—

17 (A) whether punitive damages are to be 

18 awarded and the amount of such award; and 

19 (B) the amount of punitive damages fol20 lowing a determination of punitive liability. 

21 If a separate proceeding is requested, evidence rel22 evant only to the claim for punitive damages, as de23 termined by applicable State law, shall be inadmis24 sible in any proceeding to determine whether com25 pensatory damages are to be awarded. 
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1 (4) LIMITATION WHERE NO COMPENSATORY

2 DAMAGES ARE AWARDED.—In any health care law3 suit where no judgment for compensatory damages 

4 is rendered against a person, no punitive damages 

5 may be awarded with respect to the claim in such 

6 lawsuit against such person. 

7 (b) DETERMINING AMOUNT OF PUNITIVE DAM8 AGES.—

9 (1) FACTORS CONSIDERED.—In determining 

10 the amount of punitive damages under this section, 

11 the trier of fact shall consider only the following: 

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

13 conduct of such party; 

14 (B) the duration of the conduct or any 

15 concealment of it by such party; 

16 (C) the profitability of the conduct to such 

17 party; 

18 (D) the number of products sold or med19 ical procedures rendered for compensation, as 

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

21 causing the harm complained of by the claim22 ant; 

23 (E) any criminal penalties imposed on such 

24 party, as a result of the conduct complained of 

25 by the claimant; and
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1 (F) the amount of any civil fines assessed 

2 against such party as a result of the conduct 

3 complained of by the claimant. 

4 (2) MAXIMUM AWARD.—The amount of punitive 

5 damages awarded in a health care lawsuit may not 

6 exceed an amount equal to two times the amount of 

7 economic damages awarded in the lawsuit or 

8 $250,000, whichever is greater. The jury shall not 

9 be informed of the limitation under the preceding 

10 sentence. 

11 (c) NO PUNITIVE DAMAGES FOR PRODUCTS THAT

12 COMPLY WITH FDA STANDARDS.—

13 (1) IN GENERAL.—No punitive damages may be 

14 awarded against the manufacturer, distributor, sup15 plier, marketer, promoter, or seller of a medical 

16 product used in direct connection with the provision 

17 of obstetrical or gynecological services, or emergency 

18 or trauma care services based on a claim that such 

19 product caused the claimant’s harm where—

20 (A)(i) such medical product was subject to 

21 premarket approval or clearance by the Food 

22 and Drug Administration with respect to the 

23 safety of the formulation or performance of the 

24 aspect of such medical product which caused 

25 the claimant’s harm or the adequacy of the 
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1 packaging or labeling of such medical product; 

2 and 

3 (ii) such medical product was so approved 

4 or cleared; or 

5 (B) such medical product is generally rec6 ognized among qualified experts as safe and ef7 fective pursuant to conditions established by the 

8 Food and Drug Administration and applicable 

9 Food and Drug Administration regulations, in10 cluding without limitation those related to pack11 aging and labeling, unless the Food and Drug 

12 Administration has determined that such med13 ical product was not manufactured or distrib14 uted in substantial compliance with applicable 

15 Food and Drug Administration statutes and 

16 regulations. 

17 (2) LIABILITY OF HEALTH CARE PROVIDERS.—

18 A health care provider who prescribes, or who dis19 penses pursuant to a prescription, a drug or device 

20 (including blood products) approved by the Food 

21 and Drug Administration for use in direct connec22 tion with the provision of obstetrical or gynecological 

23 services, or emergency or trauma care services shall 

24 not be named as a party to a product liability law25 suit invoking such drug or device and shall not be 
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•S 2207 IS 

1 liable to a claimant in a class action lawsuit against 

2 the manufacturer, distributor, supplier, marketer, 

3 promoter, or seller of such drug or device. 

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

5 harm which is alleged to relate to the adequacy of 

6 the packaging or labeling of a drug which is required 

7 to have tamper-resistant packaging under regula8 tions of the Secretary (including labeling regulations 

9 related to such packaging), the manufacturer, dis10 tributor, supplier, marketer, promoter, or seller of 

11 the drug shall not be held liable for punitive dam12 ages unless such packaging or labeling is found by 

13 the trier of fact by clear and convincing evidence to 

14 be substantially out of compliance with such regula15 tions. 

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

17 apply in any health care lawsuit in which—

18 (A) a person, before or after premarket ap19 proval or clearance of such medical product, 

20 knowingly misrepresented to or withheld from 

21 the Food and Drug Administration information 

22 that is required to be submitted under the Fed23 eral Food, Drug, and Cosmetic Act (21 U.S.C. 

24 301 et seq.) or section 351 of the Public Health 

25 Service Act (42 U.S.C. 262) that is material 
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1 and is causally related to the harm which the 

2 claimant allegedly suffered; or 

3 (B) a person made an illegal payment to 

4 an official of the Food and Drug Administra5 tion for the purpose of either securing or main6 taining approval or clearance of such medical 

7 product. 

8 SEC. 7. AUTHORIZATION OF PAYMENT OF FUTURE DAM9 AGES TO CLAIMANTS IN HEALTH CARE LAW10 SUITS. 

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

12 award of future damages, without reduction to present 

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

14 party with sufficient insurance or other assets to fund a 

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

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

17 the future damages be paid by periodic payments. In any 

18 health care lawsuit, the court may be guided by the Uni19 form Periodic Payment of Judgments Act promulgated by 

20 the National Conference of Commissioners on Uniform 

21 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. 
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•S 2207 IS 

1 SEC. 8. EFFECT ON OTHER LAWS. 

2 (a) GENERAL VACCINE INJURY.—

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

4 of the Public Health Service Act establishes a Fed5 eral rule of law applicable to a civil action brought 

6 for a vaccine-related injury or death—

7 (A) this Act shall not affect the application 

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

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

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

11 shall not apply to such action. 

12 (2) EXCEPTION.—If there is an aspect of a civil 

13 action brought for a vaccine-related injury or death 

14 to which a Federal rule of law under title XXI of 

15 the Public Health Service Act does not apply, then 

16 this Act or otherwise applicable law (as determined 

17 under this Act) will apply to such aspect of such ac18 tion. 

19 (b) SMALLPOX VACCINE INJURY.—

20 (1) IN GENERAL.—To the extent that part C of 

21 title II of the Public Health Service Act establishes 

22 a Federal rule of law applicable to a civil action 

23 brought for a smallpox vaccine-related injury or 

24 death—

25 (A) this Act shall not affect the application 

26 of the rule of law to such an action; and
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1 (B) any rule of law prescribed by this Act 

2 in conflict with a rule of law of such part C 

3 shall not apply to such action. 

4 (2) EXCEPTION.—If there is an aspect of a civil 

5 action brought for a smallpox vaccine-related injury 

6 or death to which a Federal rule of law under part 

7 C of title II of the Public Health Service Act does 

8 not apply, then this Act or otherwise applicable law 

9 (as determined under this Act) will apply to such as10 pect of such action. 

11 (c) OTHER FEDERAL LAW.—Except as provided in 

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

13 any defense available to a defendant in a health care law14 suit or action under any other provision of Federal law. 

15 SEC. 9. STATE FLEXIBILITY AND PROTECTION OF STATES 

16 RIGHTS. 

17 (a) HEALTH CARE LAWSUITS.—The provisions gov18 erning health care lawsuits set forth in this Act shall pre19 empt, subject to subsections (b) and (c), State law to the 

20 extent that State law prevents the application of any pro21 visions of law established by or under this Act. The provi22 sions governing health care lawsuits set forth in this Act 

23 supersede chapter 171 of title 28, United States Code, to 

24 the extent that such chapter—
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1 (1) provides for a greater amount of damages 

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

3 care lawsuit may be commenced, or a reduced appli4 cability or scope of periodic payment of future dam5 ages, than provided in this Act; or 

6 (2) prohibits the introduction of evidence re7 garding collateral source benefits. 

8 (b) PREEMPTION OF CERTAIN STATE LAWS.—No 

9 provision of this Act shall be construed to preempt any 

10 State law (whether effective before, on, or after the date 

11 of the enactment of this Act) that specifies a particular 

12 monetary amount of compensatory or punitive damages 

13 (or the total amount of damages) that may be awarded 

14 in a health care lawsuit, regardless of whether such mone15 tary amount is greater or lesser than is provided for under 

16 this Act, notwithstanding section 3(b). 

17 (c) PROTECTION OF STATE’S RIGHTS AND OTHER

18 LAWS.—

19 (1) IN GENERAL.—Any issue that is not gov20 erned by a provision of law established by or under 

21 this Act (including the State standards of neg22 ligence) shall be governed by otherwise applicable 

23 Federal or State law. 

24 (2) RULE OF CONSTRUCTION.—Nothing in this 

25 Act shall be construed to—
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1 (A) preempt or supersede any Federal or 

2 State law that imposes greater procedural or 

3 substantive protections for a health care pro4 vider, health care organization, or the manufac5 turer, distributor, supplier, marketer, promoter, 

6 or seller of a medical product from liability, 

7 loss, or damages than those provided by this 

8 Act; 

9 (B) notwithstanding any other provision of 

10 this section, preempt or supercede any State 

11 law that provides for a specific monetary limit 

12 on total damages (including compensatory dam13 ages) that may be awarded in a health care 

14 lawsuit regardless of whether such monetary 

15 limit is greater or lesser than is provided for 

16 under this Act; 

17 (C) create a cause of action that is not 

18 otherwise available under Federal or State law; 

19 or 

20 (D) affect the scope of preemption of any 

21 other Federal law. 

22 SEC. 10. DEFINITIONS. 

23 In this Act: 

24 (1) ALTERNATIVE DISPUTE RESOLUTION SYS25 TEM; ADR.—The term ‘‘alternative dispute resolution 
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1 system’’ or ‘‘ADR’’ means a system that provides 

2 for the resolution of health care lawsuits in a man3 ner other than through a civil action brought in a 

4 State or Federal court. 

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

6 any person who brings a health care lawsuit, includ7 ing a person who asserts or claims a right to legal 

8 or equitable contribution, indemnity or subrogation, 

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

10 and any person on whose behalf such a claim is as11 serted or such an action is brought, whether de12 ceased, incompetent, or a minor. 

13 (3) COLLATERAL SOURCE BENEFITS.—The 

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

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

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

17 or other benefit provided or reasonably likely to be 

18 provided in the future to or on behalf of the claim19 ant, as a result of the injury or wrongful death, pur20 suant to—

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

22 income-disability, accident, or workers’ com23 pensation law; 
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1 (B) any health, sickness, income-disability, 

2 or accident insurance that provides health bene3 fits or income-disability coverage; 

4 (C) any contract or agreement of any 

5 group, organization, partnership, or corporation 

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

7 medical, hospital, dental, or income disability 

8 benefits; and 

9 (D) any other publicly or privately funded 

10 program. 

11 (4) COMPENSATORY DAMAGES.—The term 

12 ‘‘compensatory damages’’ means objectively 

13 verifiable monetary losses incurred as a result of the 

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

15 provide, use, or pay for) health care services or med16 ical products, such as past and future medical ex17 penses, loss of past and future earnings, cost of ob18 taining domestic services, loss of employment, and 

19 loss of business or employment opportunities, dam20 ages for physical and emotional pain, suffering, in21 convenience, physical impairment, mental anguish, 

22 disfigurement, loss of enjoyment of life, loss of soci23 ety and companionship, loss of consortium (other 

24 than loss of domestic service), hedonic damages, in25 jury to reputation, and all other nonpecuniary losses
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1 of any kind or nature. Such term includes economic 

2 damages and noneconomic damages, as such terms 

3 are defined in this section. 

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

5 fee’’ includes all compensation to any person or per6 sons which is payable only if a recovery is effected 

7 on behalf of one or more claimants. 

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

9 damages’’ means objectively verifiable monetary 

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

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

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

13 past and future medical expenses, loss of past and 

14 future earnings, cost of obtaining domestic services, 

15 loss of employment, and loss of business or employ16 ment opportunities. 

17 (7) EMERGENCY MEDICAL CONDITION.—The 

18 term ‘‘emergency medical condition’’ means a med19 ical condition manifesting itself by acute symptoms 

20 of sufficient severity (including severe pain) such 

21 that the absence of immediate medical attention 

22 could reasonably be expected to result in placing the 

23 health of the individual (or, with respect to a preg24 nant woman, the health of the woman or her unborn 

25 child) in serious jeopardy, serious impairment to 
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1 bodily functions, or serious dysfunction of any bodily 

2 organ or part. 

3 (8) EMERGENCY OR TRAUMA CARE SERVICES.—

4 The term ‘‘emergency or trauma care services’’ 

5 means health care goods and services that are fur6 nished to an individual with an emergency medical 

7 condition, including the response to the emergency 

8 medical condition, screening, stabilization and treat9 ment of the emergency medical condition. 

10 (9) HEALTH CARE GOODS OR SERVICES.—The 

11 term ‘‘health care goods or services’’ means—

12 (A) any obstetrical or gynecological goods 

13 or services provided by a health care organiza14 tion, provider, or by any individual working 

15 under the supervision of a health care provider, 

16 that relates to the diagnosis, prevention, care, 

17 or treatment of any obstetrical or gynecological18 related human disease or impairment, or the as19 sessment of the health of human beings; and 

20 (B) any goods or services provided by a 

21 health care organization, provider, or by any in22 dividual working under the supervision of a 

23 health care provider, that are involved in the 

24 provision of emergency or trauma care services. 
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1 (10) HEALTH CARE LAWSUIT.—The term 

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

3 claim concerning the provision of obstetrical or gyne4 cological goods or services affecting interstate com5 merce, or emergency or trauma care goods or serv6 ices affecting interstate commerce, or any health 

7 care liability action concerning the provision of (or 

8 the failure to provide) obstetrical or gynecological 

9 goods or services affecting interstate commerce, or 

10 emergency or trauma care goods or services affect11 ing interstate commerce, brought in a State or Fed12 eral court or pursuant to an alternative dispute reso13 lution system, against a physician or other health 

14 care provider who delivers obstetrical or gyneco15 logical services, or emergency or trauma care serv16 ices, a health care organization (only with respect to 

17 obstetrical or gynecological services or emergency or 

18 trauma care services), or the manufacturer, dis19 tributor, supplier, marketer, promoter, or seller of a 

20 medical product (only with respect to a medical 

21 product used in connection with obstetrical or gyne22 cological services or emergency or trauma care serv23 ices), regardless of the theory of liability on which 

24 the claim is based, or the number of claimants, 

25 plaintiffs, defendants, or other parties, or the num-
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1 ber of claims or causes of action, in which the claim2 ant alleges a health care liability claim. 

3 (11) HEALTH CARE LIABILITY ACTION.—The 

4 term ‘‘health care liability action’’ means a civil ac5 tion brought in a State or Federal Court or pursu6 ant to an alternative dispute resolution system, 

7 against a physician or other health care provider 

8 who provides obstetrical or gynecological services or 

9 emergency or trauma care services, a health care or10 ganization (only with respect to obstetrical or gyne11 cological services or emergency or trauma care serv12 ices), or the manufacturer, distributor, supplier, 

13 marketer, promoter, or seller of a medical product 

14 (only with respect to a medical product used in con15 nection with obstetrical or gynecological services or 

16 emergency or trauma care services), regardless of 

17 the theory of liability on which the claim is based, 

18 or the number of plaintiffs, defendants, or other par19 ties, or the number of causes of action, in which the 

20 claimant alleges a health care liability claim. 

21 (12) HEALTH CARE LIABILITY CLAIM.—The 

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

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

24 against a physician or other health care provider 

25 who delivers obstetrical or gynecological services or
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1 emergency or trauma care services, a health care or2 ganization (only with respect to obstetrical or gyne3 cological services or emergency or trauma care serv4 ices), or the manufacturer, distributor, supplier, 

5 marketer, promoter, or seller of a medical product 

6 (only with respect to a medical product used in con7 nection with obstetrical or gynecological services or 

8 emergency or trauma care services), including third9 party claims, cross-claims, counter-claims, or con10 tribution claims, which are based upon the provision 

11 of, use of, or payment for (or the failure to provide, 

12 use, or pay for) obstetrical or gynecological services 

13 or emergency or trauma care services, regardless of 

14 the theory of liability on which the claim is based, 

15 or the number of plaintiffs, defendants, or other par16 ties, or the number of causes of action. 

17 (13) HEALTH CARE ORGANIZATION.—The term 

18 ‘‘health care organization’’ means any person or en19 tity which is obligated to provide or pay for health 

20 benefits under any health plan, including any person 

21 or entity acting under a contract or arrangement 

22 with a health care organization to provide or admin23 ister any health benefit. 

24 (14) HEALTH CARE PROVIDER.—The term 

25 ‘‘health care provider’’ means any person or entity 
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1 required by State or Federal laws or regulations to 

2 be licensed, registered, or certified to provide health 

3 care services, and being either so licensed, reg4 istered, or certified, or exempted from such require5 ment by other statute or regulation. 

6 (15) MALICIOUS INTENT TO INJURE.—The 

7 term ‘‘malicious intent to injure’’ means inten8 tionally causing or attempting to cause physical in9 jury other than providing health care goods or serv10 ices. 

11 (16) MEDICAL PRODUCT.—The term ‘‘medical 

12 product’’ means a drug or device intended for hu13 mans. The terms ‘‘drug’’ and ‘‘device’’ have the 

14 meanings given such terms in sections 201(g)(1) and 

15 201(h) of the Federal Food, Drug and Cosmetic Act 

16 (21 U.S.C. 321), respectively, including any compo17 nent or raw material used therein, but excluding 

18 health care services. 

19 (17) NONECONOMIC DAMAGES.—The term 

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

22 physical impairment, mental anguish, disfigurement, 

23 loss of enjoyment of life, loss of society and compan24 ionship, loss of consortium (other than loss of do25 mestic service), hedonic damages, injury to reputa-
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1 tion, and all other nonpecuniary losses of any kind 

2 or nature. 

3 (18) OBSTETRICAL OR GYNECOLOGICAL SERV4 ICES.—The term ‘‘obstetrical or gynecological serv5 ices’’ means services for pre-natal care or labor and 

6 delivery, including the immediate postpartum period 

7 (as determined in accordance with the definition of 

8 postpartum used for purposes of title XIX of the So9 cial Security Act (42 U.S.C. 1396 et seq.)). 

10 (19) PUNITIVE DAMAGES.—The term ‘‘punitive 

11 damages’’ means damages awarded, for the purpose 

12 of punishment or deterrence, and not solely for com13 pensatory purposes, against a physician or other 

14 health care provider who delivers obstetrical or gyne15 cological services or emergency or trauma care serv16 ices, or against a manufacturer, distributor, sup17 plier, marketer, promoter, or seller of a medical 

18 product (subject to section 6(c)). Punitive damages 

19 are neither economic nor noneconomic damages. 

20 (20) RECOVERY.—The term ‘‘recovery’’ means 

21 the net sum recovered after deducting any disburse22 ments or costs incurred in connection with prosecu23 tion or settlement of the claim, including all costs 

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

25 incurred by the plaintiff and the attorneys’ office 
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1 overhead costs or charges for legal services are not 

2 deductible disbursements or costs for such purpose. 

3 (21) STATE.—The term ‘‘State’’ means each of 

4 the several States, the District of Columbia, the 

5 Commonwealth of Puerto Rico, the Virgin Islands, 

6 Guam, American Samoa, the Northern Mariana Is7 lands, the Trust Territory of the Pacific Islands, and 

8 any other territory or possession of the United 

9 States, or any political subdivision thereof. 

10 SEC. 11. APPLICABILITY; EFFECTIVE DATE. 

11 This Act shall apply to any health care lawsuit 

12 brought in a Federal or State court, or subject to an alter13 native dispute resolution system, that is initiated on or 

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

15 any health care lawsuit arising from an injury occurring 

16 prior to the date of enactment of this Act shall be gov17 erned by the applicable statute of limitations provisions 

18 in effect at the time the injury occurred.

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