II 

109TH CONGRESS 

1ST SESSION S. 366 

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, 2005 

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

was read twice and referred to the Committee on the Judiciary 

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 2005’’. 

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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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) LIABILITY OF HEALTH CARE PROVIDERS.—A 

12 health care provider who prescribes, or who dispenses pur13 suant to a prescription, a drug or device (including blood 

14 products) approved by the Food and Drug Administration 

15 shall not be named as a party to a product liability lawsuit 

16 invoking such drug or device and shall not be liable to 

17 a claimant in a class action lawsuit against the manufac18 turer, distributor, or product seller of such drug or device. 

19 SEC. 7. AUTHORIZATION OF PAYMENT OF FUTURE DAM20 AGES TO CLAIMANTS IN HEALTH CARE LAW21 SUITS. 

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

23 award of future damages, without reduction to present 

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

25 party with sufficient insurance or other assets to fund a 
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1 periodic payment of such a judgment, the court shall, at 

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

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

4 health care lawsuit, the court may be guided by the Uni5 form Periodic Payment of Judgments Act promulgated by 

6 the National Conference of Commissioners on Uniform 

7 State Laws. 

8 (b) APPLICABILITY.—This section applies to all ac9 tions which have not been first set for trial or retrial be10 fore the effective date of this Act. 

11 SEC. 8. EFFECT ON OTHER LAWS. 

12 (a) GENERAL VACCINE INJURY.— 

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

14 of the Public Health Service Act establishes a Fed15 eral rule of law applicable to a civil action brought 

16 for a vaccine-related injury or death— 

17 (A) this Act shall not affect the application 

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

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

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

21 shall not apply to such action. 

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

23 action brought for a vaccine-related injury or death 

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

25 the Public Health Service Act does not apply, then 
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1 this Act or otherwise applicable law (as determined 

2 under this Act) will apply to such aspect of such ac3 tion. 

4 (b) SMALLPOX VACCINE INJURY.— 

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

6 title II of the Public Health Service Act establishes 

7 a Federal rule of law applicable to a civil action 

8 brought for a smallpox vaccine-related injury or 

9 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 part C 

14 shall not apply to such action. 

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

16 action brought for a smallpox vaccine-related injury 

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

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

19 not apply, then this Act or otherwise applicable law 

20 (as determined under this Act) will apply to such as21 pect of such action. 

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

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

24 any defense available to a defendant in a health care law25 suit or action under any other provision of Federal law. 
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1 SEC. 9. STATE FLEXIBILITY AND PROTECTION OF STATES 

2 RIGHTS. 

3 (a) HEALTH CARE LAWSUITS.—The provisions gov4 erning health care lawsuits set forth in this Act shall pre5 empt, subject to subsections (b) and (c), State law to the 

6 extent that State law prevents the application of any pro7 visions of law established by or under this Act. The provi8 sions governing health care lawsuits set forth in this Act 

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

10 the extent that such chapter— 

11 (1) provides for a greater amount of damages 

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

13 care lawsuit may be commenced, or a reduced appli14 cability or scope of periodic payment of future dam15 ages, than provided in this Act; or 

16 (2) prohibits the introduction of evidence re17 garding collateral source benefits. 

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

19 provision of this Act shall be construed to preempt any 

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

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

22 monetary amount of compensatory or punitive damages 

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

24 in a health care lawsuit, regardless of whether such mone25 tary amount is greater or lesser than is provided for under 

26 this Act, notwithstanding section 3(a). 
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1 (c) PROTECTION OF STATE’S RIGHTS AND OTHER

2 LAWS.— 

3 (1) IN GENERAL.—Any issue that is not gov4 erned by a provision of law established by or under 

5 this Act (including the State standards of neg6 ligence) shall be governed by otherwise applicable 

7 Federal or State law. 

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

9 Act shall be construed to— 

10 (A) preempt or supersede any Federal or 

11 State law that imposes greater procedural or 

12 substantive protections for a health care pro13 vider, health care organization, or the manufac14 turer, distributor, supplier, marketer, promoter, 

15 or seller of a medical product from liability, 

16 loss, or damages than those provided by this 

17 Act; 

18 (B) notwithstanding any other provision of 

19 this section, preempt or supercede any State 

20 law that provides for a specific monetary limit 

21 on total damages (including compensatory dam22 ages) that may be awarded in a health care 

23 lawsuit regardless of whether such monetary 

24 limit is greater or lesser than is provided for 

25 under this Act; 
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1 (C) create a cause of action that is not 

2 otherwise available under Federal or State law; 

3 or 

4 (D) affect the scope of preemption of any 

5 other Federal law. 

6 SEC. 10. DEFINITIONS. 

7 In this Act: 

8 (1) ALTERNATIVE DISPUTE RESOLUTION SYS9 TEM; ADR.—The term ‘‘alternative dispute resolution 

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

11 for the resolution of health care lawsuits in a man12 ner other than through a civil action brought in a 

13 State or Federal court. 

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

15 any person who brings a health care lawsuit, includ16 ing a person who asserts or claims a right to legal 

17 or equitable contribution, indemnity or subrogation, 

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

19 and any person on whose behalf such a claim is as20 serted or such an action is brought, whether de21 ceased, incompetent, or a minor. 

22 (3) COLLATERAL SOURCE BENEFITS.—The 

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

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

25 or on behalf of the claimant, or any service, product 
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1 or other benefit provided or reasonably likely to be 

2 provided in the future to or on behalf of the claim3 ant, as a result of the injury or wrongful death, pur4 suant to— 

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

6 income-disability, accident, or workers’ com7 pensation law; 

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

9 or accident insurance that provides health bene10 fits or income-disability coverage; 

11 (C) any contract or agreement of any 

12 group, organization, partnership, or corporation 

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

14 medical, hospital, dental, or income disability 

15 benefits; and 

16 (D) any other publicly or privately funded 

17 program. 

18 (4) COMPENSATORY DAMAGES.—The term 

19 ‘‘compensatory damages’’ means objectively 

20 verifiable monetary losses incurred as a result of the 

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

22 provide, use, or pay for) health care services or med23 ical products, such as past and future medical ex24 penses, loss of past and future earnings, cost of ob25 taining domestic services, loss of employment, and 
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1 loss of business or employment opportunities, dam2 ages for physical and emotional pain, suffering, in3 convenience, physical impairment, mental anguish, 

4 disfigurement, loss of enjoyment of life, loss of soci5 ety and companionship, loss of consortium (other 

6 than loss of domestic service), hedonic damages, in7 jury to reputation, and all other nonpecuniary losses 

8 of any kind or nature. Such term includes economic 

9 damages and noneconomic damages, as such terms 

10 are defined in this section. 

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

12 fee’’ includes all compensation to any person or per13 sons which is payable only if a recovery is effected 

14 on behalf of one or more claimants. 

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

16 damages’’ means objectively verifiable monetary 

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

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

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

20 past and future medical expenses, loss of past and 

21 future earnings, cost of obtaining domestic services, 

22 loss of employment, and loss of business or employ23 ment opportunities. 

24 (7) HEALTH CARE GOODS OR SERVICES.—The 

25 term ‘‘health care goods or services’’ means any ob-
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1 stetrical or gynecological goods or services provided 

2 by a health care organization, provider, or by any in3 dividual working under the supervision of a health 

4 care provider, that relates to the diagnosis, preven5 tion, care, or treatment of any obstetrical or gyneco6 logical-related human disease or impairment, or the 

7 assessment of the health of human beings. 

8 (8) HEALTH CARE LAWSUIT.—The term 

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

10 claim concerning the provision of obstetrical or gyne11 cological goods or services affecting interstate com12 merce, or any health care liability action concerning 

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

14 or gynecological goods or services affecting interstate 

15 commerce, brought in a State or Federal court or 

16 pursuant to an alternative dispute resolution system, 

17 against a physician or other health care provider 

18 who delivers obstetrical or gynecological services, a 

19 health care organization (only with respect to obstet20 rical or gynecological services), or the manufacturer, 

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

22 a medical product (only with respect to a medical 

23 product used in connection with obstetrical or gyne24 cological services), regardless of the theory of liabil25 ity on which the claim is based, or the number of 
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1 claimants, plaintiffs, defendants, or other parties, or 

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

3 the claimant alleges a health care liability claim. 

4 (9) HEALTH CARE LIABILITY ACTION.—The 

5 term ‘‘health care liability action’’ means a civil ac6 tion brought in a State or Federal Court or pursu7 ant to an alternative dispute resolution system, 

8 against a physician or other health care provider 

9 who delivers obstetrical or gynecological services, a 

10 health care organization (only with respect to obstet11 rical or gynecological services), or the manufacturer, 

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

13 a medical product (only with respect to a medical 

14 product used in connection with obstetrical or gyne15 cological services), regardless of the theory of liabil16 ity on which the claim is based, or the number of 

17 plaintiffs, defendants, or other parties, or the num18 ber of causes of action, in which the claimant alleges 

19 a health care liability claim. 

20 (10) HEALTH CARE LIABILITY CLAIM.—The 

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

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

23 against a physician or other health care provider 

24 who delivers obstetrical or gynecological services, a 

25 health care organization (only with respect to obstet-
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1 rical or gynecological services), or the manufacturer, 

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

3 a medical product (only with respect to a medical 

4 product used in connection with obstetrical or gyne5 cological services), including third-party claims, 

6 cross-claims, counter-claims, or contribution claims, 

7 which are based upon the provision of, use of, or 

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

9 for) obstetrical or gynecological services, regardless 

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

11 or the number of plaintiffs, defendants, or other par12 ties, or the number of causes of action. 

13 (11) HEALTH CARE ORGANIZATION.—The term 

14 ‘‘health care organization’’ means any person or en15 tity which is obligated to provide or pay for health 

16 benefits under any health plan, including any person 

17 or entity acting under a contract or arrangement 

18 with a health care organization to provide or admin19 ister any health benefit. 

20 (12) HEALTH CARE PROVIDER.—The term 

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

22 required by State or Federal laws or regulations to 

23 be licensed, registered, or certified to provide health 

24 care services, and being either so licensed, reg-
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1 istered, or certified, or exempted from such require2 ment by other statute or regulation. 

3 (13) MALICIOUS INTENT TO INJURE.—The 

4 term ‘‘malicious intent to injure’’ means inten5 tionally causing or attempting to cause physical in6 jury other than providing health care goods or serv7 ices. 

8 (14) MEDICAL PRODUCT.—The term ‘‘medical 

9 product’’ means a drug or device intended for hu10 mans. The terms ‘‘drug’’ and ‘‘device’’ have the 

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

12 201(h) of the Federal Food, Drug and Cosmetic Act 

13 (21 U.S.C. 321), respectively, including any compo14 nent or raw material used therein, but excluding 

15 health care services. 

16 (15) NONECONOMIC DAMAGES.—The term 

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

19 physical impairment, mental anguish, disfigurement, 

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

24 or nature. 
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1 (16) OBSTETRICAL OR GYNECOLOGICAL SERV2 ICES.—The term ‘‘obstetrical or gynecological serv3 ices’’ means services for pre-natal care or labor and 

4 delivery, including the immediate postpartum period 

5 (as determined in accordance with the definition of 

6 postpartum used for purposes of title XIX of the So7 cial Security Act (42 U.S.C. 1396 et seq.)). 

8 (17) PUNITIVE DAMAGES.—The term ‘‘punitive 

9 damages’’ means damages awarded, for the purpose 

10 of punishment or deterrence, and not solely for com11 pensatory purposes, against a physician or other 

12 health care provider who delivers obstetrical or gyne13 cological services. Punitive damages are neither eco14 nomic nor noneconomic damages. 

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

16 the net sum recovered after deducting any disburse17 ments or costs incurred in connection with prosecu18 tion or settlement of the claim, including all costs 

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

20 incurred by the plaintiff and the attorneys’ office 

21 overhead costs or charges for legal services are not 

22 deductible disbursements or costs for such purpose. 

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

24 the several States, the District of Columbia, the 

25 Commonwealth of Puerto Rico, the Virgin Islands, 
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1 Guam, American Samoa, the Northern Mariana Is2 lands, the Trust Territory of the Pacific Islands, and 

3 any other territory or possession of the United 

4 States, or any political subdivision thereof. 

5 SEC. 11. APPLICABILITY; EFFECTIVE DATE. 

6 This Act shall apply to any health care lawsuit 

7 brought in a Federal or State court, or subject to an alter8 native dispute resolution system, that is initiated on or 

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

10 any health care lawsuit arising from an injury occurring 

11 prior to the date of enactment of this Act shall be gov12 erned by the applicable statute of limitations provisions 

13 in effect at the time the injury occurred. 

Æ