II 

Calendar No. 462

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 

MARCH 22, 2004

Read the second time and placed on the calendar 

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’’. 
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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, distributor, sup18 plier, marketer, promoter, or seller of a medical 

19 product used in direct connection with the provision 

20 of obstetrical or gynecological services, or emergency 

21 or trauma care services based on a claim that such 

22 product caused the claimant’s harm where—

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

24 premarket approval or clearance by the Food 

25 and Drug Administration with respect to the 
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1 safety of the formulation or performance of the 

2 aspect of such medical product which caused 

3 the claimant’s harm or the adequacy of the 

4 packaging or labeling of such medical product; 

5 and 

6 (ii) such medical product was so approved 

7 or cleared; or 

8 (B) such medical product is generally rec9 ognized among qualified experts as safe and ef10 fective pursuant to conditions established by the 

11 Food and Drug Administration and applicable 

12 Food and Drug Administration regulations, in13 cluding without limitation those related to pack14 aging and labeling, unless the Food and Drug 

15 Administration has determined that such med16 ical product was not manufactured or distrib17 uted in substantial compliance with applicable 

18 Food and Drug Administration statutes and 

19 regulations. 

20 (2) LIABILITY OF HEALTH CARE PROVIDERS.—

21 A health care provider who prescribes, or who dis22 penses pursuant to a prescription, a drug or device 

23 (including blood products) approved by the Food 

24 and Drug Administration for use in direct connec25 tion with the provision of obstetrical or gynecological 
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1 services, or emergency or trauma care services shall 

2 not be named as a party to a product liability law3 suit invoking such drug or device and shall not be 

4 liable to a claimant in a class action lawsuit against 

5 the manufacturer, distributor, supplier, marketer, 

6 promoter, or seller of such drug or device. 

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

8 harm which is alleged to relate to the adequacy of 

9 the packaging or labeling of a drug which is required 

10 to have tamper-resistant packaging under regula11 tions of the Secretary (including labeling regulations 

12 related to such packaging), the manufacturer, dis13 tributor, supplier, marketer, promoter, or seller of 

14 the drug shall not be held liable for punitive dam15 ages unless such packaging or labeling is found by 

16 the trier of fact by clear and convincing evidence to 

17 be substantially out of compliance with such regula18 tions. 

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

20 apply in any health care lawsuit in which—

21 (A) a person, before or after premarket ap22 proval or clearance of such medical product, 

23 knowingly misrepresented to or withheld from 

24 the Food and Drug Administration information 

25 that is required to be submitted under the Fed-
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1 eral Food, Drug, and Cosmetic Act (21 U.S.C. 

2 301 et seq.) or section 351 of the Public Health 

3 Service Act (42 U.S.C. 262) that is material 

4 and is causally related to the harm which the 

5 claimant allegedly suffered; or 

6 (B) a person made an illegal payment to 

7 an official of the Food and Drug Administra8 tion for the purpose of either securing or main9 taining approval or clearance of such medical 

10 product. 

11 SEC. 7. AUTHORIZATION OF PAYMENT OF FUTURE DAM12 AGES TO CLAIMANTS IN HEALTH CARE LAW13 SUITS. 

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

15 award of future damages, without reduction to present 

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

17 party with sufficient insurance or other assets to fund a 

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

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

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

21 health care lawsuit, the court may be guided by the Uni22 form Periodic Payment of Judgments Act promulgated by 

23 the National Conference of Commissioners on Uniform 

24 State Laws. 
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1 (b) APPLICABILITY.—This section applies to all ac2 tions which have not been first set for trial or retrial be3 fore the effective date of this Act. 

4 SEC. 8. EFFECT ON OTHER LAWS. 

5 (a) GENERAL VACCINE INJURY.—

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

7 of the Public Health Service Act establishes a Fed8 eral rule of law applicable to a civil action brought 

9 for a vaccine-related injury or death—

10 (A) this Act shall not affect the application 

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

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

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

14 shall not apply to such action. 

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

16 action brought for a vaccine-related injury or death 

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

18 the Public Health Service Act does not apply, then 

19 this Act or otherwise applicable law (as determined 

20 under this Act) will apply to such aspect of such ac21 tion. 

22 (b) SMALLPOX VACCINE INJURY.—

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

24 title II of the Public Health Service Act establishes 

25 a Federal rule of law applicable to a civil action 
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1 brought for a smallpox vaccine-related injury or 

2 death—

3 (A) this Act shall not affect the application 

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

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

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

7 shall not apply to such action. 

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

9 action brought for a smallpox vaccine-related injury 

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

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

12 not apply, then this Act or otherwise applicable law 

13 (as determined under this Act) will apply to such as14 pect of such action. 

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

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

17 any defense available to a defendant in a health care law18 suit or action under any other provision of Federal law. 

19 SEC. 9. STATE FLEXIBILITY AND PROTECTION OF STATES 

20 RIGHTS. 

21 (a) HEALTH CARE LAWSUITS.—The provisions gov22 erning health care lawsuits set forth in this Act shall pre23 empt, subject to subsections (b) and (c), State law to the 

24 extent that State law prevents the application of any pro25 visions of law established by or under this Act. The provi-
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1 sions governing health care lawsuits set forth in this Act 

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

3 the extent that such chapter—

4 (1) provides for a greater amount of damages 

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

6 care lawsuit may be commenced, or a reduced appli7 cability or scope of periodic payment of future dam8 ages, than provided in this Act; or 

9 (2) prohibits the introduction of evidence re10 garding collateral source benefits. 

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

12 provision of this Act shall be construed to preempt any 

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

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

15 monetary amount of compensatory or punitive damages 

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

17 in a health care lawsuit, regardless of whether such mone18 tary amount is greater or lesser than is provided for under 

19 this Act, notwithstanding section 3(b). 

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

21 LAWS.—

22 (1) IN GENERAL.—Any issue that is not gov23 erned by a provision of law established by or under 

24 this Act (including the State standards of neg-
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1 ligence) shall be governed by otherwise applicable 

2 Federal or State law. 

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

4 Act shall be construed to—

5 (A) preempt or supersede any Federal or 

6 State law that imposes greater procedural or 

7 substantive protections for a health care pro8 vider, health care organization, or the manufac9 turer, distributor, supplier, marketer, promoter, 

10 or seller of a medical product from liability, 

11 loss, or damages than those provided by this 

12 Act; 

13 (B) notwithstanding any other provision of 

14 this section, preempt or supercede any State 

15 law that provides for a specific monetary limit 

16 on total damages (including compensatory dam17 ages) that may be awarded in a health care 

18 lawsuit regardless of whether such monetary 

19 limit is greater or lesser than is provided for 

20 under this Act; 

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

22 otherwise available under Federal or State law; 

23 or 

24 (D) affect the scope of preemption of any 

25 other Federal law. 
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1 SEC. 10. DEFINITIONS. 

2 In this Act: 

3 (1) ALTERNATIVE DISPUTE RESOLUTION SYS4 TEM; ADR.—The term ‘‘alternative dispute resolution 

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

6 for the resolution of health care lawsuits in a man7 ner other than through a civil action brought in a 

8 State or Federal court. 

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

10 any person who brings a health care lawsuit, includ11 ing a person who asserts or claims a right to legal 

12 or equitable contribution, indemnity or subrogation, 

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

14 and any person on whose behalf such a claim is as15 serted or such an action is brought, whether de16 ceased, incompetent, or a minor. 

17 (3) COLLATERAL SOURCE BENEFITS.—The 

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

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

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

21 or other benefit provided or reasonably likely to be 

22 provided in the future to or on behalf of the claim23 ant, as a result of the injury or wrongful death, pur24 suant to—
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1 (A) any State or Federal health, sickness, 

2 income-disability, accident, or workers’ com3 pensation law; 

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

5 or accident insurance that provides health bene6 fits or income-disability coverage; 

7 (C) any contract or agreement of any 

8 group, organization, partnership, or corporation 

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

10 medical, hospital, dental, or income disability 

11 benefits; and 

12 (D) any other publicly or privately funded 

13 program. 

14 (4) COMPENSATORY DAMAGES.—The term 

15 ‘‘compensatory damages’’ means objectively 

16 verifiable monetary losses incurred as a result of the 

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

18 provide, use, or pay for) health care services or med19 ical products, such as past and future medical ex20 penses, loss of past and future earnings, cost of ob21 taining domestic services, loss of employment, and 

22 loss of business or employment opportunities, dam23 ages for physical and emotional pain, suffering, in24 convenience, physical impairment, mental anguish, 

25 disfigurement, loss of enjoyment of life, loss of soci-
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1 ety and companionship, loss of consortium (other 

2 than loss of domestic service), hedonic damages, in3 jury to reputation, and all other nonpecuniary losses

4 of any kind or nature. Such term includes economic 

5 damages and noneconomic damages, as such terms 

6 are defined in this section. 

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

8 fee’’ includes all compensation to any person or per9 sons which is payable only if a recovery is effected 

10 on behalf of one or more claimants. 

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

12 damages’’ means objectively verifiable monetary 

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

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

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

16 past and future medical expenses, loss of past and 

17 future earnings, cost of obtaining domestic services, 

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

20 (7) EMERGENCY MEDICAL CONDITION.—The 

21 term ‘‘emergency medical condition’’ means a med22 ical condition manifesting itself by acute symptoms 

23 of sufficient severity (including severe pain) such 

24 that the absence of immediate medical attention 

25 could reasonably be expected to result in placing the 
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1 health of the individual (or, with respect to a preg2 nant woman, the health of the woman or her unborn 

3 child) in serious jeopardy, serious impairment to 

4 bodily functions, or serious dysfunction of any bodily 

5 organ or part. 

6 (8) EMERGENCY OR TRAUMA CARE SERVICES.—

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

8 means health care goods and services that are fur9 nished to an individual with an emergency medical 

10 condition, including the response to the emergency 

11 medical condition, screening, stabilization and treat12 ment of the emergency medical condition. 

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

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

15 (A) any obstetrical or gynecological goods 

16 or services provided by a health care organiza17 tion, provider, or by any individual working 

18 under the supervision of a health care provider, 

19 that relates to the diagnosis, prevention, care, 

20 or treatment of any obstetrical or gynecological21 related human disease or impairment, or the as22 sessment of the health of human beings; and 

23 (B) any goods or services provided by a 

24 health care organization, provider, or by any in25 dividual working under the supervision of a 
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1 health care provider, that are involved in the 

2 provision of emergency or trauma care services. 

3 (10) HEALTH CARE LAWSUIT.—The term 

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

5 claim concerning the provision of obstetrical or gyne6 cological goods or services affecting interstate com7 merce, or emergency or trauma care goods or serv8 ices affecting interstate commerce, or any health 

9 care liability action concerning the provision of (or 

10 the failure to provide) obstetrical or gynecological 

11 goods or services affecting interstate commerce, or 

12 emergency or trauma care goods or services affect13 ing interstate commerce, brought in a State or Fed14 eral court or pursuant to an alternative dispute reso15 lution system, against a physician or other health 

16 care provider who delivers obstetrical or gyneco17 logical services, or emergency or trauma care serv18 ices, a health care organization (only with respect to 

19 obstetrical or gynecological services or emergency or 

20 trauma care services), or the manufacturer, dis21 tributor, supplier, marketer, promoter, or seller of a 

22 medical product (only with respect to a medical 

23 product used in connection with obstetrical or gyne24 cological services or emergency or trauma care serv25 ices), regardless of the theory of liability on which 
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1 the claim is based, or the number of claimants, 

2 plaintiffs, defendants, or other parties, or the num3 ber of claims or causes of action, in which the claim4 ant alleges a health care liability claim. 

5 (11) HEALTH CARE LIABILITY ACTION.—The 

6 term ‘‘health care liability action’’ means a civil ac7 tion brought in a State or Federal Court or pursu8 ant to an alternative dispute resolution system, 

9 against a physician or other health care provider 

10 who provides obstetrical or gynecological services or 

11 emergency or trauma care services, a health care or12 ganization (only with respect to obstetrical or gyne13 cological services or emergency or trauma care serv14 ices), or the manufacturer, distributor, supplier, 

15 marketer, promoter, or seller of a medical product 

16 (only with respect to a medical product used in con17 nection with obstetrical or gynecological services or 

18 emergency or trauma care services), regardless of 

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

20 or the number of plaintiffs, defendants, or other par21 ties, or the number of causes of action, in which the 

22 claimant alleges a health care liability claim. 

23 (12) HEALTH CARE LIABILITY CLAIM.—The 

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

25 by any person, whether or not pursuant to ADR, 
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1 against a physician or other health care provider 

2 who delivers obstetrical or gynecological services or

3 emergency or trauma care services, a health care or4 ganization (only with respect to obstetrical or gyne5 cological services or emergency or trauma care serv6 ices), or the manufacturer, distributor, supplier, 

7 marketer, promoter, or seller of a medical product 

8 (only with respect to a medical product used in con9 nection with obstetrical or gynecological services or 

10 emergency or trauma care services), including third11 party claims, cross-claims, counter-claims, or con12 tribution claims, which are based upon the provision 

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

14 use, or pay for) obstetrical or gynecological services 

15 or emergency or trauma care services, regardless of 

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

17 or the number of plaintiffs, defendants, or other par18 ties, or the number of causes of action. 

19 (13) HEALTH CARE ORGANIZATION.—The term 

20 ‘‘health care organization’’ means any person or en21 tity which is obligated to provide or pay for health 

22 benefits under any health plan, including any person 

23 or entity acting under a contract or arrangement 

24 with a health care organization to provide or admin25 ister any health benefit. 
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1 (14) HEALTH CARE PROVIDER.—The term 

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

3 required by State or Federal laws or regulations to 

4 be licensed, registered, or certified to provide health 

5 care services, and being either so licensed, reg6 istered, or certified, or exempted from such require7 ment by other statute or regulation. 

8 (15) MALICIOUS INTENT TO INJURE.—The 

9 term ‘‘malicious intent to injure’’ means inten10 tionally causing or attempting to cause physical in11 jury other than providing health care goods or serv12 ices. 

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

14 product’’ means a drug or device intended for hu15 mans. The terms ‘‘drug’’ and ‘‘device’’ have the 

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

17 201(h) of the Federal Food, Drug and Cosmetic Act 

18 (21 U.S.C. 321), respectively, including any compo19 nent or raw material used therein, but excluding 

20 health care services. 

21 (17) NONECONOMIC DAMAGES.—The term 

22 ‘‘noneconomic damages’’ means damages for phys23 ical and emotional pain, suffering, inconvenience, 

24 physical impairment, mental anguish, disfigurement, 

25 loss of enjoyment of life, loss of society and compan-
27

S 2207 PCS 

1 ionship, loss of consortium (other than loss of do2 mestic service), hedonic damages, injury to reputa3 tion, and all other nonpecuniary losses of any kind 

4 or nature. 

5 (18) OBSTETRICAL OR GYNECOLOGICAL SERV6 ICES.—The term ‘‘obstetrical or gynecological serv7 ices’’ means services for pre-natal care or labor and 

8 delivery, including the immediate postpartum period 

9 (as determined in accordance with the definition of 

10 postpartum used for purposes of title XIX of the So11 cial Security Act (42 U.S.C. 1396 et seq.)). 

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

13 damages’’ means damages awarded, for the purpose 

14 of punishment or deterrence, and not solely for com15 pensatory purposes, against a physician or other 

16 health care provider who delivers obstetrical or gyne17 cological services or emergency or trauma care serv18 ices, or against a manufacturer, distributor, sup19 plier, marketer, promoter, or seller of a medical 

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

21 are neither economic nor noneconomic damages. 

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

23 the net sum recovered after deducting any disburse24 ments or costs incurred in connection with prosecu25 tion or settlement of the claim, including all costs 
28

S 2207 PCS 

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

2 incurred by the plaintiff and the attorneys’ office 

3 overhead costs or charges for legal services are not 

4 deductible disbursements or costs for such purpose. 

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

6 the several States, the District of Columbia, the 

7 Commonwealth of Puerto Rico, the Virgin Islands, 

8 Guam, American Samoa, the Northern Mariana Is9 lands, the Trust Territory of the Pacific Islands, and 

10 any other territory or possession of the United 

11 States, or any political subdivision thereof. 

12 SEC. 11. APPLICABILITY; EFFECTIVE DATE. 

13 This Act shall apply to any health care lawsuit 

14 brought in a Federal or State court, or subject to an alter15 native dispute resolution system, that is initiated on or 

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

17 any health care lawsuit arising from an injury occurring 

18 prior to the date of enactment of this Act shall be gov19 erned by the applicable statute of limitations provisions 

20 in effect at the time the injury occurred. 

Calendar No. 462

108TH CONGRESS 

2D SESSION S. 2207

A BILL

To improve women’s access to health care services, 

livery of such services. sive burden the liability system places on the deand trauma care services, by reducing the excesand the access of all individuals to emergency 

MARCH 22, 2004

Read the second time and placed on the calendar