II 

Calendar No. 429

108TH CONGRESS 

2D SESSION S. 2061

To improve women’s access to health care services and provide improved 

medical care by reducing the excessive burden the liability system places 

on the delivery of obstetrical and gynecological services. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 10, 2004

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

was read the first time 

FEBRUARY 11, 2004

Read the second time and placed on the calendar 

A BILL

To improve women’s access to health care services and provide improved medical care by reducing the excessive 

burden the liability system places on the delivery of obstetrical and gynecological 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 ‘‘Healthy Mothers and 

5 Healthy Babies Access to Care Act of 2003’’. 
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1 SEC. 2. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

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

3 in this section, the time for the commencement of a health 

4 care lawsuit shall be 3 years after the date of manifesta5 tion of injury or 1 year after the claimant discovers, or 

6 through the use of reasonable diligence should have discov7 ered, the injury, whichever occurs first. 

8 (b) GENERAL EXCEPTION.—The time for the com9 mencement of a health care lawsuit shall not exceed 3 

10 years after the date of manifestation of injury unless the 

11 tolling of time was delayed as a result of—

12 (1) fraud; 

13 (2) intentional concealment; or 

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

15 therapeutic or diagnostic purpose or effect, in the 

16 person of the injured person. 

17 (c) MINORS.—An action by a minor shall be com18 menced within 3 years from the date of the alleged mani19 festation of injury except that if such minor is under the 

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

21 3 years of the manifestation of injury, or prior to the 

22 eighth birthday of the minor, whichever provides a longer 

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

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

25 care provider or health care organization have committed 
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1 fraud or collusion in the failure to bring an action on be2 half of the injured minor. 

3 SEC. 3. COMPENSATING PATIENT INJURY. 

4 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

5 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 

6 health care lawsuit, nothing in this Act shall limit the re7 covery by a claimant of the full amount of the available 

8 economic damages, notwithstanding the limitation con9 tained in subsection (b). 

10 (b) ADDITIONAL NONECONOMIC DAMAGES.—In any 

11 health care lawsuit, the amount of noneconomic damages 

12 recovered, if otherwise available under applicable Federal 

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

14 the number of parties against whom the action is brought 

15 or the number of separate claims or actions brought with 

16 respect to the same injury. 

17 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

18 DAMAGES.—In any health care lawsuit—

19 (1) an award for future noneconomic damages 

20 shall not be discounted to present value; 

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

22 maximum award for noneconomic damages under 

23 subsection (b); 

24 (3) an award for noneconomic damages in ex25 cess of $250,000 shall be reduced either before the 
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1 entry of judgment, or by amendment of the judg2 ment after entry of judgment, and such reduction 

3 shall be made before accounting for any other reduc4 tion in damages required by law; and 

5 (4) if separate awards are rendered for past 

6 and future noneconomic damages and the combined 

7 awards exceed $250,000, the future noneconomic 

8 damages shall be reduced first. 

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

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

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

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

13 damages allocated to such party in direct proportion to

14 such party’s percentage of responsibility. A separate judg15 ment shall be rendered against each such party for the 

16 amount allocated to such party. For purposes of this sec17 tion, the trier of fact shall determine the proportion of 

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

19 SEC. 4. MAXIMIZING PATIENT RECOVERY. 

20 (a) COURT SUPERVISION OF SHARE OF DAMAGES

21 ACTUALLY PAID TO CLAIMANTS.—

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

23 the court shall supervise the arrangements for pay24 ment of damages to protect against conflicts of in25 terest that may have the effect of reducing the 
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1 amount of damages awarded that are actually paid 

2 to claimants.

3 (2) CONTINGENCY FEES.—

4 (A) IN GENERAL.—In any health care law5 suit in which the attorney for a party claims a 

6 financial stake in the outcome by virtue of a 

7 contingent fee, the court shall have the power 

8 to restrict the payment of a claimant’s damage 

9 recovery to such attorney, and to redirect such 

10 damages to the claimant based upon the inter11 ests of justice and principles of equity. 

12 (B) LIMITATION.—The total of all contin13 gent fees for representing all claimants in a 

14 health care lawsuit shall not exceed the fol15 lowing limits: 

16 (i) 40 percent of the first $50,000 re17 covered by the claimant(s). 

(ii) 331 18 ⁄3 percent of the next $50,000 

19 recovered by the claimant(s). 

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

21 recovered by the claimant(s). 

22 (iv) 15 percent of any amount by 

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

24 excess of $600,000. 

25 (b) APPLICABILITY.—
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1 (1) IN GENERAL.—The limitations in subsection 

2 (a) shall apply whether the recovery is by judgment, 

3 settlement, mediation, arbitration, or any other form 

4 of alternative dispute resolution. 

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

6 a minor or incompetent person, a court retains the 

7 authority to authorize or approve a fee that is less 

8 than the maximum permitted under this section. 

9 (c) EXPERT WITNESSES.—

10 (1) REQUIREMENT.—No individual shall be 

11 qualified to testify as an expert witness concerning 

12 issues of negligence in any health care lawsuit 

13 against a defendant unless such individual—

14 (A) except as required under paragraph 

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

16 (i) is appropriately credentialed or li17 censed in 1 or more States to deliver 

18 health care services; and 

19 (ii) typically treats the diagnosis or 

20 condition or provides the type of treatment 

21 under review; and 

22 (B) can demonstrate by competent evi23 dence that, as a result of training, education, 

24 knowledge, and experience in the evaluation, di25 agnosis, and treatment of the disease or injury 
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1 which is the subject matter of the lawsuit 

2 against the defendant, the individual was sub3 stantially familiar with applicable standards of 

4 care and practice as they relate to the act or 

5 omission which is the subject of the lawsuit on 

6 the date of the incident. 

7 (2) PHYSICIAN REVIEW.—In a health care law8 suit, if the claim of the plaintiff involved treatment 

9 that is recommended or provided by a physician 

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

11 qualified to be an expert witness under this sub12 section with respect to issues of negligence con13 cerning such treatment unless such individual is a 

14 physician. 

15 (3) OTHER HEALTH CARE PROVIDERS.—With 

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

17 court shall not permit an expert in one health care 

18 provider field to testify against a defendant in an19 other health care provider field unless, in addition to 

20 a showing of substantial familiarity in accordance 

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

22 standards of care and practice in the two health care 

23 provider fields are similar. 

24 (4) LIMITATION.—The limitations in this sub25 section shall not apply to expert witnesses testifying 
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1 as to the degree or permanency of medical or phys2 ical impairment. 

3 SEC. 5. PROMOTING FAIRNESS IN RECOVERING HEALTH 

4 BENEFITS AND PREVENTING DOUBLE RECOV5 ERIES. 

6 (a) IN GENERAL.—The amount of any damages re7 ceived by a claimant in any health care lawsuit shall be 

8 reduced by the court by the amount of any collateral 

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

10 insurance premiums or other payments made by the claim11 ant (or by the spouse, parent, child, or legal guardian of 

12 the claimant) to obtain or secure such benefits. 

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

14 payor of collateral source benefits has a right of recovery 

15 by reimbursement or subrogation and such right is per16 mitted under Federal or State law, subsection (a) shall 

17 not apply. 

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

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

20 by a fact finder. 

21 SEC. 6. PUNITIVE DAMAGES. 

22 (a) PUNITIVE DAMAGES PERMITTED.—

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

24 otherwise available under applicable State or Federal 

25 law, be awarded against any person in a health care 
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1 lawsuit only if it is proven by clear and convincing 

2 evidence that such person acted with malicious in3 tent to injure the claimant, or that such person de4 liberately failed to avoid unnecessary injury that 

5 such person knew the claimant was substantially 

6 certain to suffer. 

7 (2) FILING OF LAWSUIT.—No demand for puni8 tive damages shall be included in a health care law9 suit as initially filed. A court may allow a claimant 

10 to file an amended pleading for punitive damages 

11 only upon a motion by the claimant and after a find12 ing by the court, upon review of supporting and op13 posing affidavits or after a hearing, after weighing 

14 the evidence, that the claimant has established by a

15 substantial probability that the claimant will prevail 

16 on the claim for punitive damages. 

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

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

19 shall consider in a separate proceeding—

20 (A) whether punitive damages are to be 

21 awarded and the amount of such award; and 

22 (B) the amount of punitive damages fol23 lowing a determination of punitive liability. 

24 If a separate proceeding is requested, evidence rel25 evant only to the claim for punitive damages, as de-
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1 termined by applicable State law, shall be inadmis2 sible in any proceeding to determine whether com3 pensatory damages are to be awarded.

4 (4) LIMITATION WHERE NO COMPENSATORY

5 DAMAGES ARE AWARDED.—In any health care law6 suit where no judgment for compensatory damages 

7 is rendered against a person, no punitive damages 

8 may be awarded with respect to the claim in such 

9 lawsuit against such person. 

10 (b) DETERMINING AMOUNT OF PUNITIVE DAM11 AGES.—

12 (1) FACTORS CONSIDERED.—In determining 

13 the amount of punitive damages under this section, 

14 the trier of fact shall consider only the following: 

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

16 conduct of such party; 

17 (B) the duration of the conduct or any 

18 concealment of it by such party; 

19 (C) the profitability of the conduct to such 

20 party; 

21 (D) the number of products sold or med22 ical procedures rendered for compensation, as 

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

24 causing the harm complained of by the claim25 ant; 
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1 (E) any criminal penalties imposed on such 

2 party, as a result of the conduct complained of 

3 by the claimant; and 

4 (F) the amount of any civil fines assessed 

5 against such party as a result of the conduct 

6 complained of by the claimant. 

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

8 damages awarded in a health care lawsuit may not 

9 exceed an amount equal to two times the amount of 

10 economic damages awarded in the lawsuit or 

11 $250,000, whichever is greater. The jury shall not 

12 be informed of the limitation under the preceding 

13 sentence. 

14 (c) NO PUNITIVE DAMAGES FOR PRODUCTS THAT

15 COMPLY WITH FDA STANDARDS.—

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

17 awarded against the manufacturer or distributor of 

18 a medical product used in direct connection with the 

19 provision of obstetrical or gynecological services 

20 based on a claim that such product caused the 

21 claimant’s harm where—

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

23 premarket approval or clearance by the Food 

24 and Drug Administration with respect to the 

25 safety of the formulation or performance of the 
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1 aspect of such medical product which caused 

2 the claimant’s harm or the adequacy of the 

3 packaging or labeling of such medical product; 

4 and 

5 (ii) such medical product was so approved 

6 or cleared; or 

7 (B) such medical product is generally rec8 ognized among qualified experts as safe and ef9 fective pursuant to conditions established by the 

10 Food and Drug Administration and applicable 

11 Food and Drug Administration regulations, in12 cluding without limitation those related to pack13 aging and labeling, unless the Food and Drug 

14 Administration has determined that such med15 ical product was not manufactured or distrib16 uted in substantial compliance with applicable 

17 Food and Drug Administration statutes and 

18 regulations. 

19 (2) LIABILITY OF HEALTH CARE PROVIDERS.—

20 A health care provider who prescribes, or who dis21 penses pursuant to a prescription, a drug or device 

22 (including blood products) approved by the Food 

23 and Drug Administration for use in direct connec24 tion with the provision of obstetrical or gynecological 

25 services shall not be named as a party to a product 
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1 liability lawsuit invoking such drug or device and 

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

3 lawsuit against the manufacturer, distributor, or 

4 product seller of such drug or device. 

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

6 harm which is alleged to relate to the adequacy of 

7 the packaging or labeling of a drug which is required 

8 to have tamper-resistant packaging under regula9 tions of the Secretary (including labeling regulations 

10 related to such packaging), the manufacturer or 

11 product seller of the drug shall not be held liable for 

12 punitive damages unless such packaging or labeling 

13 is found by the trier of fact by clear and convincing 

14 evidence to be substantially out of compliance with 

15 such regulations. 

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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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(a). 

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) HEALTH CARE GOODS OR SERVICES.—The 

18 term ‘‘health care goods or services’’ means any ob19 stetrical or gynecological goods or services provided 

20 by a health care organization, provider, or by any in21 dividual working under the supervision of a health 

22 care provider, that relates to the diagnosis, preven23 tion, care, or treatment of any obstetrical or gyneco24 logical-related human disease or impairment, or the 

25 assessment of the health of human beings. 
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1 (8) 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 any health care liability action concerning 

6 the provision of (or the failure to provide) obstetrical 

7 or gynecological goods or services affecting interstate 

8 commerce, brought in a State or Federal court or 

9 pursuant to an alternative dispute resolution system, 

10 against a physician or other health care provider 

11 who delivers obstetrical or gynecological services, a 

12 health care organization (only with respect to obstet13 rical or gynecological services), or the manufacturer, 

14 distributor, supplier, marketer, promoter, or seller of 

15 a medical product (only with respect to a medical 

16 product used in connection with obstetrical or gyne17 cological services), regardless of the theory of liabil18 ity on which the claim is based, or the number of 

19 claimants, plaintiffs, defendants, or other parties, or 

20 the number of claims or causes of action, in which 

21 the claimant alleges a health care liability claim. 

22 (9) HEALTH CARE LIABILITY ACTION.—The 

23 term ‘‘health care liability action’’ means a civil ac24 tion brought in a State or Federal Court or pursu25 ant to an alternative dispute resolution system, 
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1 against a physician or other health care provider 

2 who delivers obstetrical or gynecological services, a 

3 health care organization (only with respect to obstet4 rical or gynecological services), or the manufacturer, 

5 distributor, supplier, marketer, promoter, or seller of 

6 a medical product (only with respect to a medical 

7 product used in connection with obstetrical or gyne8 cological services), regardless of the theory of liabil9 ity on which the claim is based, or the number of 

10 plaintiffs, defendants, or other parties, or the num11 ber of causes of action, in which the claimant alleges 

12 a health care liability claim. 

13 (10) HEALTH CARE LIABILITY CLAIM.—The 

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

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

16 against a physician or other health care provider 

17 who delivers obstetrical or gynecological services, a 

18 health care organization (only with respect to obstet19 rical or gynecological services), or the manufacturer, 

20 distributor, supplier, marketer, promoter, or seller of 

21 a medical product (only with respect to a medical 

22 product used in connection with obstetrical or gyne23 cological services), including third-party claims, 

24 cross-claims, counter-claims, or contribution claims, 

25 which are based upon the provision of, use of, or
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1 payment for (or the failure to provide, use, or pay 

2 for) obstetrical or gynecological services, regardless 

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

4 or the number of plaintiffs, defendants, or other par5 ties, or the number of causes of action. 

6 (11) HEALTH CARE ORGANIZATION.—The term 

7 ‘‘health care organization’’ means any person or en8 tity which is obligated to provide or pay for health 

9 benefits under any health plan, including any person 

10 or entity acting under a contract or arrangement 

11 with a health care organization to provide or admin12 ister any health benefit. 

13 (12) 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, and being either so licensed, reg18 istered, or certified, or exempted from such require19 ment by other statute or regulation. 

20 (13) MALICIOUS INTENT TO INJURE.—The 

21 term ‘‘malicious intent to injure’’ means inten22 tionally causing or attempting to cause physical in23 jury other than providing health care goods or serv24 ices. 
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1 (14) MEDICAL PRODUCT.—The term ‘‘medical 

2 product’’ means a drug or device intended for hu3 mans. The terms ‘‘drug’’ and ‘‘device’’ have the 

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

5 201(h) of the Federal Food, Drug and Cosmetic Act 

6 (21 U.S.C. 321), respectively, including any compo7 nent or raw material used therein, but excluding 

8 health care services. 

9 (15) NONECONOMIC DAMAGES.—The term 

10 ‘‘noneconomic damages’’ means damages for phys11 ical and emotional pain, suffering, inconvenience, 

12 physical impairment, mental anguish, disfigurement, 

13 loss of enjoyment of life, loss of society and compan14 ionship, loss of consortium (other than loss of do15 mestic service), hedonic damages, injury to reputa16 tion, and all other nonpecuniary losses of any kind 

17 or nature. 

18 (16) OBSTETRICAL OR GYNECOLOGICAL SERV19 ICES.—The term ‘‘obstetrical or gynecological serv20 ices’’ means services for pre-natal care or labor and 

21 delivery, including the immediate postpartum period 

22 (as determined in accordance with the definition of 

23 postpartum used for purposes of title XIX of the So24 cial Security Act (42 U.S.C. 1396 et seq.)). 
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1 (17) PUNITIVE DAMAGES.—The term ‘‘punitive 

2 damages’’ means damages awarded, for the purpose 

3 of punishment or deterrence, and not solely for com4 pensatory purposes, against a physician or other 

5 health care provider who delivers obstetrical or gyne6 cological services. Punitive damages are neither eco7 nomic nor noneconomic damages. 

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

9 the net sum recovered after deducting any disburse10 ments or costs incurred in connection with prosecu11 tion or settlement of the claim, including all costs 

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

13 incurred by the plaintiff and the attorneys’ office 

14 overhead costs or charges for legal services are not 

15 deductible disbursements or costs for such purpose. 

16 (19) STATE.—The term ‘‘State’’ means each of 

17 the several States, the District of Columbia, the 

18 Commonwealth of Puerto Rico, the Virgin Islands, 

19 Guam, American Samoa, the Northern Mariana Is20 lands, the Trust Territory of the Pacific Islands, and 

21 any other territory or possession of the United 

22 States, or any political subdivision thereof. 

23 SEC. 11. APPLICABILITY; EFFECTIVE DATE. 

24 This Act shall apply to any health care lawsuit 

25 brought in a Federal or State court, or subject to an alter-
27

•S 2061 PCS 

1 native dispute resolution system, that is initiated on or 

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

3 any health care lawsuit arising from an injury occurring 

4 prior to the date of enactment of this Act shall be gov5 erned by the applicable statute of limitations provisions 

6 in effect at the time the injury occurred.
Calendar No. 429

108TH CONGRESS 

2D SESSION S. 2061

A BILL

To improve women’s access to health care services 

and provide improved medical care by reducing the excessive burden the liability system places on the delivery of obstetrical and gynecological services. 

FEBRUARY 11, 2004

Read the second time and placed on the calendar