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Union Calendar No. 20

108TH CONGRESS 

1ST SESSION H. R. 5

[Report No. 108–32, Parts I and II] 

To improve patient access to health care services and provide improved 

medical care by reducing the excessive burden the liability system places 

on the health care delivery system. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 5, 2003

Mr. GREENWOOD (for himself, Mr. MURTHA, Mr. COX, Mr. SENSENBRENNER, 

Mr. TAUZIN, Mr. THOMAS, Mr. GOODE, Mr. FERGUSON, Mr. GERLACH, 

Mrs. CAPITO, Mr. FEENEY, Mr. KIRK, Mrs. BIGGERT, Mr. PLATTS, Mr. 

SHAYS, Mr. FRELINGHUYSEN, Mr. MURPHY, Mr. PETERSON of Minnesota, Mr. LUCAS of Kentucky, Mr. STENHOLM, Mr. TAYLOR of Mississippi, Mr. HOBSON, Ms. GRANGER, Mrs. JOHNSON of Connecticut, Ms. 

DUNN, Mr. ROGERS of Michigan, Ms. GINNY BROWN-WAITE of Florida, 

Mr. HAYES, Mr. LEACH, Mr. OTTER, Mr. GRAVES, Mr. LATOURETTE, 

Mr. FLETCHER, Mr. WELDON of Florida, Mr. TIBERI, Mr. HAYWORTH, 

Mr. CRANE, Mr. PORTMAN, Mr. SULLIVAN, Mr. SOUDER, Mr. CANNON, 

Mr. SHAW, Mr. MCHUGH, Mr. MCKEON, Mr. LEWIS of Kentucky, Mrs. 

NORTHUP, Mr. SESSIONS, Mr. HULSHOF, Mr. PUTNAM, Mr. GILCHREST, 

Mr. KNOLLENBERG, Mr. HOUGHTON, Mr. REGULA, Mr. TOM DAVIS of 

Virginia, Mr. FORBES, Mr. PETERSON of Pennsylvania, Mr. LOBIONDO, 

Mr. BOEHLERT, Mr. NUSSLE, Mr. SHUSTER, Mr. TIAHRT, Mr. STEARNS, 

Mr. GILLMOR, Ms. HART, Mr. WALSH, Mr. CRENSHAW, Mr. BARTON of 

Texas, Mr. KELLER, and Mr. COLLINS) introduced the following bill; 

which was referred to the Committee on the Judiciary, and in addition 

to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such 

provisions as fall within the jurisdiction of the committee concerned 

MARCH 11, 2003

Additional sponsors: Mr. GOODLATTE, Mr. BURGESS, Mr. PICKERING, Mrs. 

KELLY, Mr. TOOMEY, Mr. CHABOT, Mr. PENCE, Mrs. EMERSON, Mr. 

ROGERS of Alabama, Mr. SMITH of Texas, Mr. MCINNIS, Mr. BORDALLO, 

Mr. GINGREY, Mr. EVERETT, Mr. MICA, Mrs. JO ANN DAVIS of Virginia, 
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Mr. CUNNINGHAM, Mr. BURR, Mr. DREIER, Mr. CANTOR, Mr. 

GALLEGLY, Mr. GARY G. MILLER of Californina, Mr. NEY, Mr. RADANOVICH, Mr. FOSSELLA, Mr. WAMP, Mr. WELLER, Mr. KINGSTON, Mr. 

WHITFIELD, Mr. THORNBERRY, Mr. WOLF, Mr. PITTS, Mr. KENNEDY of 

Minnesota, Mrs. MYRICK, Mr. COLE, Mr. BEAUPREZ, Mrs. CUBIN, Mrs. 

BONO, Mr. ISSA, Mr. SAXTON, Mr. BRADY of Texas, Mr. BLUNT, Mr. 

ADERHOLT, Mrs. MUSGRAVE, Mr. LUCAS of Oklahoma, Mr. 

HENSARLING, Mr. KING of Iowa, Mr. BASS, Mr. BARRETT of South 

Carolina, Mr. HASTINGS of Washington, Mr. BOOZMAN, Mr. COMBEST, 

Mr. BROWN of South Carolina, Mr. HOLDEN, Mr. DEMINT, Mr. 

SWEENEY, Mr. LAHOOD, Mr. BRADLEY of New Hampshire, Mr. MANZULLO, and Mr. SIMPSON

MARCH 11, 2003

Reported from the Committee on the Judiciary with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

MARCH 11, 2003

Reported from the Committee on Energy and Commerce with an amendment; 

committed to the Committee of the Whole House on the State of the 

Union and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in boldface roman] 

[For text of introduced bill, see copy of bill as introduced on February 5, 2003] 

A BILL

To improve patient access to health care services and provide 

improved medical care by reducing the excessive burden 

the liability system places on the health care delivery 

system.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Help Efficient, Acces5 sible, Low-cost, Timely Healthcare (HEALTH) Act of 

6 2003’’. 
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1 SEC. 2. FINDINGS AND PURPOSE. 

2 (a) FINDINGS.—

3 (1) EFFECT ON HEALTH CARE ACCESS AND

4 COSTS.—Congress finds that our current civil justice 

5 system is adversely affecting patient access to health 

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

7 health care, in that the health care liability system is 

8 a costly and ineffective mechanism for resolving 

9 claims of health care liability and compensating in10 jured patients, and is a deterrent to the sharing of in11 formation among health care professionals which im12 pedes efforts to improve patient safety and quality of 

13 care. 

14 (2) EFFECT ON INTERSTATE COMMERCE.—Con15 gress finds that the health care and insurance indus16 tries are industries affecting interstate commerce and 

17 the health care liability litigation systems existing 

18 throughout the United States are activities that affect 

19 interstate commerce by contributing to the high costs 

20 of health care and premiums for health care liability 

21 insurance purchased by health care system providers. 

22 (3) EFFECT ON FEDERAL SPENDING.—Congress 

23 finds that the health care liability litigation systems 

24 existing throughout the United States have a signifi25 cant effect on the amount, distribution, and use of 

26 Federal funds because of—
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1 (A) the large number of individuals who re2 ceive health care benefits under programs oper3 ated or financed by the Federal Government; 

4 (B) the large number of individuals who 

5 benefit because of the exclusion from Federal 

6 taxes of the amounts spent to provide them with 

7 health insurance benefits; and 

8 (C) the large number of health care pro9 viders who provide items or services for which 

10 the Federal Government makes payments. 

11 (b) PURPOSE.—It is the purpose of this Act to imple12 ment reasonable, comprehensive, and effective health care 

13 liability reforms designed to—

14 (1) improve the availability of health care serv15 ices in cases in which health care liability actions 

16 have been shown to be a factor in the decreased avail17 ability of services; 

18 (2) reduce the incidence of ‘‘defensive medicine’’ 

19 and lower the cost of health care liability insurance, 

20 all of which contribute to the escalation of health care 

21 costs; 

22 (3) ensure that persons with meritorious health 

23 care injury claims receive fair and adequate com24 pensation, including reasonable noneconomic dam25 ages; 
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1 (4) improve the fairness and cost-effectiveness of 

2 our current health care liability system to resolve dis3 putes over, and provide compensation for, health care 

4 liability by reducing uncertainty in the amount of 

5 compensation provided to injured individuals; and 

6 (5) provide an increased sharing of information 

7 in the health care system which will reduce unin8 tended injury and improve patient care. 

9 SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

10 The time for the commencement of a health care law11 suit shall be 3 years after the date of manifestation of injury 

12 or 1 year after the claimant discovers, or through the use 

13 of reasonable diligence should have discovered, the injury, 

14 whichever occurs first. In no event shall the time for com15 mencement of a health care lawsuit exceed 3 years after the 

16 date of manifestation of injury unless tolled for any of the 

17 following: 

18 (1) Upon proof of fraud; 

19 (2) Intentional concealment; or 

20 (3) The presence of a foreign body, which has no 

21 therapeutic or diagnostic purpose or effect, in the per22 son of the injured person. 

23 Actions by a minor shall be commenced within 3 years from 

24 the date of the alleged manifestation of injury except that 

25 actions by a minor under the full age of 6 years shall be 
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1 commenced within 3 years of manifestation of injury or 

2 prior to the minor’s 8th birthday, whichever provides a 

3 longer period. Such time limitation shall be tolled for mi4 nors for any period during which a parent or guardian 

5 and a health care provider or health care organization have 

6 committed fraud or collusion in the failure to bring an ac7 tion on behalf of the injured minor.

8 SEC. 4. COMPENSATING PATIENT INJURY. 

9 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

10 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 

11 health care lawsuit, the full amount of a claimant’s eco12 nomic loss may be fully recovered without limitation. 

13 (b) ADDITIONAL NONECONOMIC DAMAGES.—In any 

14 health care lawsuit, the amount of noneconomic damages 

15 recovered may be as much as $250,000, regardless of the 

16 number of parties against whom the action is brought or 

17 the number of separate claims or actions brought with re18 spect to the same occurrence. 

19 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC DAM20 AGES.—In any health care lawsuit, an award for future 

21 noneconomic damages shall not be discounted to present 

22 value. The jury shall not be informed about the maximum 

23 award for noneconomic damages. An award for non24 economic damages in excess of $250,000 shall be reduced 

25 either before the entry of judgment, or by amendment of 
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1 the judgment after entry of judgment, and such reduction 

2 shall be made before accounting for any other reduction in 

3 damages required by law. If separate awards are rendered 

4 for past and future noneconomic damages and the combined 

5 awards exceed $250,000, the future noneconomic damages 

6 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 of 

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

10 Each party shall be liable only for the amount of damages 

11 allocated to such party in direct proportion to such party’s 

12 percentage of responsibility. A separate judgment shall be 

13 rendered against each such party for the amount allocated 

14 to such party. For purposes of this section, the trier of fact 

15 shall determine the proportion of responsibility of each 

16 party for the claimant’s harm. 

17 SEC. 5. MAXIMIZING PATIENT RECOVERY. 

18 (a) COURT SUPERVISION OF SHARE OF DAMAGES AC19 TUALLY PAID TO CLAIMANTS.—In any health care lawsuit, 

20 the court shall supervise the arrangements for payment of 

21 damages to protect against conflicts of interest that may 

22 have the effect of reducing the amount of damages awarded 

23 that are actually paid to claimants. In particular, in any 

24 health care lawsuit in which the attorney for a party claims 

25 a financial stake in the outcome by virtue of a contingent 
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1 fee, the court shall have the power to restrict the payment 

2 of a claimant’s damage recovery to such attorney, and to 

3 redirect such damages to the claimant based upon the inter4 ests of justice and principles of equity. In no event shall 

5 the total of all contingent fees for representing all claimants 

6 in a health care lawsuit exceed the following limits: 

7 (1) 40 percent of the first $50,000 recovered by 

8 the claimant(s). 

(2) 331 9 ⁄3 percent of the next $50,000 recovered by 

10 the claimant(s). 

11 (3) 25 percent of the next $500,000 recovered by 

12 the claimant(s). 

13 (4) 15 percent of any amount by which the re14 covery by the claimant(s) is in excess of $600,000. 

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

16 shall apply whether the recovery is by judgment, settlement, 

17 mediation, arbitration, or any other form of alternative dis18 pute resolution. In a health care lawsuit involving a minor 

19 or incompetent person, a court retains the authority to au20 thorize or approve a fee that is less than the maximum per21 mitted under this section. 

22 SEC. 6. ADDITIONAL HEALTH BENEFITS. 

23 In any health care lawsuit, any party may introduce 

24 evidence of collateral source benefits. If a party elects to in25 troduce such evidence, any opposing party may introduce 
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1 evidence of any amount paid or contributed or reasonably 

2 likely to be paid or contributed in the future by or on behalf 

3 of the opposing party to secure the right to such collateral 

4 source benefits. No provider of collateral source benefits 

5 shall recover any amount against the claimant or receive 

6 any lien or credit against the claimant’s recovery or be eq7 uitably or legally subrogated to the right of the claimant 

8 in a health care lawsuit. This section shall apply to any 

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

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

11 not apply to section 1862(b) (42 U.S.C. 1395y(b)) or section 

12 1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social Secu13 rity Act. 

14 SEC. 7. PUNITIVE DAMAGES. 

15 (a) IN GENERAL.—Punitive damages may, if other16 wise permitted by applicable State or Federal law, be 

17 awarded against any person in a health care lawsuit only 

18 if it is proven by clear and convincing evidence that such 

19 person acted with malicious intent to injure the claimant, 

20 or that such person deliberately failed to avoid unnecessary 

21 injury that such person knew the claimant was substan22 tially certain to suffer. In any health care lawsuit where 

23 no judgment for compensatory damages is rendered against 

24 such person, no punitive damages may be awarded with 

25 respect to the claim in such lawsuit. No demand for puni-
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1 tive damages shall be included in a health care lawsuit as 

2 initially filed. A court may allow a claimant to file an 

3 amended pleading for punitive damages only upon a mo4 tion by the claimant and after a finding by the court, upon 

5 review of supporting and opposing affidavits or after a 

6 hearing, after weighing the evidence, that the claimant has 

7 established by a substantial probability that the claimant 

8 will prevail on the claim for punitive damages. At the re9 quest of any party in a health care lawsuit, the trier of 

10 fact shall consider in a separate proceeding—

11 (1) whether punitive damages are to be awarded 

12 and the amount of such award; and 

13 (2) the amount of punitive damages following a 

14 determination of punitive liability. 

15 If a separate proceeding is requested, evidence relevant only 

16 to the claim for punitive damages, as determined by appli17 cable State law, shall be inadmissible in any proceeding 

18 to determine whether compensatory damages are to be 

19 awarded. 

20 (b) DETERMINING AMOUNT OF PUNITIVE DAMAGES.—

21 (1) FACTORS CONSIDERED.—In determining the 

22 amount of punitive damages, if awarded, in a health 

23 care lawsuit, the trier of fact shall consider only the 

24 following: 
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1 (A) the severity of the harm caused by the 

2 conduct of such party; 

3 (B) the duration of the conduct or any con4 cealment of it by such party; 

5 (C) the profitability of the conduct to such 

6 party; 

7 (D) the number of products sold or medical 

8 procedures rendered for compensation, as the

9 case may be, by such party, of the kind causing 

10 the harm complained of by the claimant; 

11 (E) any criminal penalties imposed on such 

12 party, as a result of the conduct complained of 

13 by the claimant; and 

14 (F) the amount of any civil fines assessed 

15 against such party as a result of the conduct 

16 complained of by the claimant. 

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

18 damages, if awarded, in a health care lawsuit may be 

19 as much as $250,000 or as much as two times the 

20 amount of economic damages awarded, whichever is 

21 greater. The jury shall not be informed of this limita22 tion. 

23 (c) NO PUNITIVE DAMAGES FOR PRODUCTS THAT

24 COMPLY WITH FDA STANDARDS.—
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1 (1) IN GENERAL.—No punitive damages may be 

2 awarded against the manufacturer or distributor of a 

3 medical product based on a claim that such product 

4 caused the claimant’s harm where—

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

6 premarket approval or clearance by the Food 

7 and Drug Administration with respect to the 

8 safety of the formulation or performance of the 

9 aspect of such medical product which caused the 

10 claimant’s harm or the adequacy of the pack11 aging or labeling of such medical product; and 

12 (ii) such medical product was so approved 

13 or cleared; or 

14 (B) such medical product is generally recog15 nized among qualified experts as safe and effec16 tive pursuant to conditions established by the 

17 Food and Drug Administration and applicable 

18 Food and Drug Administration regulations, in19 cluding without limitation those related to pack20 aging and labeling, unless the Food and Drug 

21 Administration has determined that such med22 ical product was not manufactured or distrib23 uted in substantial compliance with applicable 

24 Food and Drug Administration statutes and reg25 ulations. 
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1 (2) LIABILITY OF HEALTH CARE PROVIDERS.—A 

2 health care provider who prescribes, or who dispenses 

3 pursuant to a prescription, a drug or device (includ4 ing blood products) approved by the Food and Drug 

5 Administration shall not be named as a party to a 

6 product liability lawsuit involving such drug or de7 vice and shall not be liable to a claimant in a class 

8 action lawsuit against the manufacturer, distributor, 

9 or product seller of such drug or device. 

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

11 harm which is alleged to relate to the adequacy of the 

12 packaging or labeling of a drug which is required to 

13 have tamper-resistant packaging under regulations of 

14 the Secretary of Health and Human Services (includ15 ing labeling regulations related to such packaging), 

16 the manufacturer or product seller of the drug shall 

17 not be held liable for punitive damages unless such 

18 packaging or labeling is found by the trier of fact by 

19 clear and convincing evidence to be substantially out 

20 of compliance with such regulations. 

21 (4) EXCEPTION.—Paragraph (1) shall not apply 

22 in any health care lawsuit in which—

23 (A) a person, before or after premarket ap24 proval or clearance of such medical product, 

25 knowingly misrepresented to or withheld from 
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1 the Food and Drug Administration information 

2 that is required to be submitted under the Fed3 eral Food, Drug, and Cosmetic Act (21 U.S.C. 

4 301 et seq.) or section 351 of the Public Health 

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

6 is causally related to the harm which the claim7 ant allegedly suffered; or 

8 (B) a person made an illegal payment to an 

9 official of the Food and Drug Administration for 

10 the purpose of either securing or maintaining 

11 approval or clearance of such medical product. 

12 SEC. 8. AUTHORIZATION OF PAYMENT OF FUTURE DAM13 AGES TO CLAIMANTS IN HEALTH CARE LAW14 SUITS. 

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

16 award of future damages, without reduction to present 

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

18 party with sufficient insurance or other assets to fund a 

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

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

21 the future damages be paid by periodic payments in accord22 ance with the Uniform Periodic Payment of Judgments Act 

23 promulgated by the National Conference of Commissioners 

24 on Uniform 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 before 

3 the effective date of this Act. 

4 SEC. 9. DEFINITIONS. 

5 In this Act: 

6 (1) ALTERNATIVE DISPUTE RESOLUTION SYSTEM; 

7 ADR.—The term ‘‘alternative dispute resolution sys8 tem’’ or ‘‘ADR’’ means a system that provides for the 

9 resolution of health care lawsuits in a manner other 

10 than through a civil action brought in a State or Fed11 eral court. 

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

13 any person who brings a health care lawsuit, includ14 ing a person who asserts or claims a right to legal or 

15 equitable contribution, indemnity or subrogation, 

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

17 and any person on whose behalf such a claim is as18 serted or such an action is brought, whether deceased, 

19 incompetent, or a minor. 

20 (3) COLLATERAL SOURCE BENEFITS.—The term 

21 ‘‘collateral source benefits’’ means any amount paid 

22 or reasonably likely to be paid in the future to or on 

23 behalf of the claimant, or any service, product or 

24 other benefit provided or reasonably likely to be pro25 vided in the future to or on behalf of the claimant, 
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1 as a result of the injury or wrongful death, pursuant 

2 to—

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

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

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

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

9 (C) any contract or agreement of any 

10 group, organization, partnership, or corporation 

11 to provide, pay for, or reimburse the cost of med12 ical, hospital, dental, or income disability bene13 fits; and 

14 (D) any other publicly or privately funded 

15 program. 

16 (4) COMPENSATORY DAMAGES.—The term ‘‘com17 pensatory damages’’ means objectively verifiable mon18 etary losses incurred as a result of the provision of, 

19 use of, or payment for (or failure to provide, use, or 

20 pay for) health care services or medical products, such 

21 as past and future medical expenses, loss of past and 

22 future earnings, cost of obtaining domestic services, 

23 loss of employment, and loss of business or employ24 ment opportunities, damages for physical and emo25 tional pain, suffering, inconvenience, physical im-
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1 pairment, mental anguish, disfigurement, loss of en2 joyment of life, loss of society and companionship, 

3 loss of consortium (other than loss of domestic serv4 ice), hedonic damages, injury to reputation, and all 

5 other nonpecuniary losses of any kind or nature. The 

6 term ‘‘compensatory damages’’ includes economic 

7 damages and noneconomic damages, as such terms 

8 are defined in this section. 

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

10 fee’’ includes all compensation to any person or per11 sons which is payable only if a recovery is effected on 

12 behalf of one or more claimants. 

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

14 damages’’ means objectively verifiable monetary losses 

15 incurred as a result of the provision of, use of, or 

16 payment for (or failure to provide, use, or pay for) 

17 health care services or medical products, such as past 

18 and future medical expenses, loss of past and future 

19 earnings, cost of obtaining domestic services, loss of 

20 employment, and loss of business or employment op21 portunities. 

22 (7) HEALTH CARE LAWSUIT.—The term ‘‘health 

23 care lawsuit’’ means any health care liability claim 

24 concerning the provision of health care goods or serv25 ices, or any medical product, affecting interstate com-
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1 merce, or any health care liability action concerning 

2 the provision of health care goods or services, or any 

3 medical product, affecting interstate commerce, 

4 brought in a State or Federal court or pursuant to 

5 an alternative dispute resolution system, against a 

6 health care provider, a health care organization, or 

7 the manufacturer, distributor, supplier, marketer, 

8 promoter, or seller of a medical product, regardless of 

9 the theory of liability on which the claim is based, or 

10 the number of claimants, plaintiffs, defendants, or 

11 other parties, or the number of claims or causes of ac12 tion, in which the claimant alleges a health care li13 ability claim. 

14 (8) HEALTH CARE LIABILITY ACTION.—The term 

15 ‘‘health care liability action’’ means a civil action 

16 brought in a State or Federal Court or pursuant to 

17 an alternative dispute resolution system, against a 

18 health care provider, a health care organization, or 

19 the manufacturer, distributor, supplier, marketer, 

20 promoter, or seller of a medical product, regardless of 

21 the theory of liability on which the claim is based, or 

22 the number of plaintiffs, defendants, or other parties, 

23 or the number of causes of action, in which the claim24 ant alleges a health care liability claim. 
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1 (9) HEALTH CARE LIABILITY CLAIM.—The term 

2 ‘‘health care liability claim’’ means a demand by any 

3 person, whether or not pursuant to ADR, against a 

4 health care provider, health care organization, or the 

5 manufacturer, distributor, supplier, marketer, pro6 moter, or seller of a medical product, including, but 

7 not limited to, third-party claims, cross-claims, 

8 counter-claims, or contribution claims, which are 

9 based upon the provision of, use of, or payment for

10 (or the failure to provide, use, or pay for) health care 

11 services or medical products, regardless of the theory 

12 of liability on which the claim is based, or the num13 ber of plaintiffs, defendants, or other parties, or the 

14 number of causes of action. 

15 (10) HEALTH CARE ORGANIZATION.—The term 

16 ‘‘health care organization’’ means any person or enti17 ty which is obligated to provide or pay for health ben18 efits under any health plan, including any person or 

19 entity acting under a contract or arrangement with 

20 a health care organization to provide or administer 

21 any health benefit. 

22 (11) HEALTH CARE PROVIDER.—The term 

23 ‘‘health care provider’’ means any person or entity re24 quired by State or Federal laws or regulations to be 

25 licensed, registered, or certified to provide health care 
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1 services, and being either so licensed, registered, or 

2 certified, or exempted from such requirement by other 

3 statute or regulation. 

4 (12) HEALTH CARE GOODS OR SERVICES.—The 

5 term ‘‘health care goods or services’’ means any goods 

6 or services provided by a health care organization, 

7 provider, or by any individual working under the su8 pervision of a health care provider, that relate to the 

9 diagnosis, prevention, or treatment of any human dis10 ease or impairment, or the assessment of the health of 

11 human beings. 

12 (13) MALICIOUS INTENT TO INJURE.—The term 

13 ‘‘malicious intent to injure’’ means intentionally 

14 causing or attempting to cause physical injury other 

15 than providing health care goods or services. 

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

17 product’’ means a drug or device intended for hu18 mans, and the terms ‘‘drug’’ and ‘‘device’’ have the 

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

20 201(h) of the Federal Food, Drug and Cosmetic Act 

21 (21 U.S.C. 321), respectively, including any compo22 nent or raw material used therein, but excluding 

23 health care services. 

24 (15) NONECONOMIC DAMAGES.—The term ‘‘non25 economic damages’’ means damages for physical and 
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1 emotional pain, suffering, inconvenience, physical im2 pairment, mental anguish, disfigurement, loss of en3 joyment of life, loss of society and companionship, 

4 loss of consortium (other than loss of domestic serv5 ice), hedonic damages, injury to reputation, and all 

6 other nonpecuniary losses of any kind or nature. 

7 (16) PUNITIVE DAMAGES.—The term ‘‘punitive 

8 damages’’ means damages awarded, for the purpose of 

9 punishment or deterrence, and not solely for compen10 satory purposes, against a health care provider, 

11 health care organization, or a manufacturer, dis12 tributor, or supplier of a medical product. Punitive 

13 damages are neither economic nor noneconomic dam14 ages. 

15 (17) 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 de22 ductible disbursements or costs for such purpose. 

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

24 the several States, the District of Columbia, the Com25 monwealth of Puerto Rico, the Virgin Islands, Guam, 
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1 American Samoa, the Northern Mariana Islands, the 

2 Trust Territory of the Pacific Islands, and any other 

3 territory or possession of the United States, or any 

4 political subdivision thereof. 

5 SEC. 10. EFFECT ON OTHER LAWS. 

6 (a) VACCINE INJURY.—

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

8 Health Service Act establishes a Federal rule of law 

9 applicable to a civil action brought for a vaccine-re10 lated injury or death—

11 (A) this Act does not affect the application 

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

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

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

15 shall not apply to such action. 

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

17 for a vaccine-related injury or death to which a Fed18 eral rule of law under title XXI of the Public Health 

19 Service Act does not apply, then this Act or otherwise 

20 applicable law (as determined under this Act) will 

21 apply to such aspect of such action. 

22 (b) 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. 11. 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 preempt, 

5 subject to subsections (b) and (c), State law to the extent 

6 that State law prevents the application of any provisions 

7 of law established by or under this Act. The provisions gov8 erning health care lawsuits set forth in this Act supersede 

9 chapter 171 of title 28, United States Code, to the extent 

10 that such chapter—

11 (1) provides for a greater amount of damages or 

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

13 lawsuit may be commenced, or a reduced applica14 bility or scope of periodic payment of future damages, 

15 than provided in this Act; or 

16 (2) prohibits the introduction of evidence regard17 ing collateral source benefits, or mandates or permits 

18 subrogation or a lien on collateral source benefits. 

19 (b) PROTECTION OF STATES’ RIGHTS.—Any issue that 

20 is not governed by any provision of law established by or 

21 under this Act (including State standards of negligence) 

22 shall be governed by otherwise applicable State or Federal 

23 law. This Act does not preempt or supersede any law that 

24 imposes greater protections (such as a shorter statute of lim25 itations) for health care providers and health care organiza-
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1 tions from liability, loss, or damages than those provided 

2 by this Act. 

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

4 shall be construed to preempt—

5 (1) any State law (whether effective before, on, or 

6 after the date of the enactment of this Act) that speci7 fies a particular monetary amount of compensatory 

8 or punitive damages (or the total amount of damages) 

9 that may be awarded in a health care lawsuit, re10 gardless of whether such monetary amount is greater 

11 or lesser than is provided for under this Act, notwith12 standing section 4(a); or 

13 (2) any defense available to a party in a health 

14 care lawsuit under any other provision of State or 

15 Federal law. 

16 SEC. 12. APPLICABILITY; EFFECTIVE DATE. 

17 This Act shall apply to any health care lawsuit 

18 brought in a Federal or State court, or subject to an alter19 native dispute resolution system, that is initiated on or 

20 after the date of the enactment of this Act, except that any 

21 health care lawsuit arising from an injury occurring prior 

22 to the date of the enactment of this Act shall be governed 

23 by the applicable statute of limitations provisions in effect 

24 at the time the injury occurred. 
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1 SEC. 13. SENSE OF CONGRESS. 

2 It is the sense of Congress that a health insurer should 

3 be liable for damages for harm caused when it makes a deci4 sion as to what care is medically necessary and appro5 priate.

6 SECTION 1. SHORT TITLE. 

7 This Act may be cited as the ‘‘Help Effi8 cient, Accessible, Low-cost, Timely Healthcare 

9 (HEALTH) Act of 2003’’. 

10 SEC. 2. FINDINGS AND PURPOSE. 

11 (a) FINDINGS.—

12 (1) EFFECT ON HEALTH CARE ACCESS

13 AND COSTS.—Congress finds that our cur14 rent civil justice system is adversely af15 fecting patient access to health care serv16 ices, better patient care, and cost-effi17 cient health care, in that the health care 

18 liability system is a costly and ineffective 

19 mechanism for resolving claims of health 

20 care liability and compensating injured 

21 patients, and is a deterrent to the sharing 

22 of information among health care profes23 sionals which impedes efforts to improve 

24 patient safety and quality of care. 

25 (2) EFFECT ON INTERSTATE COM26 MERCE.—Congress finds that the health 
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1 care and insurance industries are indus2 tries affecting interstate commerce and 

3 the health care liability litigation systems 

4 existing throughout the United States are 

5 activities that affect interstate commerce 

6 by contributing to the high costs of 

7 health care and premiums for health care 

8 liability insurance purchased by health 

9 care system providers. 

10 (3) EFFECT ON FEDERAL SPENDING.—

11 Congress finds that the health care liabil12 ity litigation systems existing throughout 

13 the United States have a significant effect 

14 on the amount, distribution, and use of 

15 Federal funds because of—

16 (A) the large number of individ17 uals who receive health care benefits 

18 under programs operated or financed 

19 by the Federal Government; 

20 (B) the large number of individ21 uals who benefit because of the exclu22 sion from Federal taxes of the 

23 amounts spent to provide them with 

24 health insurance benefits; and 
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1 (C) the large number of health 

2 care providers who provide items or 

3 services for which the Federal Gov4 ernment makes payments. 

5 (b) PURPOSE.—It is the purpose of this Act 

6 to implement reasonable, comprehensive, and 

7 effective health care liability reforms de8 signed to—

9 (1) improve the availability of health 

10 care services in cases in which health 

11 care liability actions have been shown to 

12 be a factor in the decreased availability 

13 of services; 

14 (2) reduce the incidence of ‘‘defensive 

15 medicine’’ and lower the cost of health 

16 care liability insurance, all of which con17 tribute to the escalation of health care 

18 costs; 

19 (3) ensure that persons with meri20 torious health care injury claims receive 

21 fair and adequate compensation, includ22 ing reasonable noneconomic damages; 

23 (4) improve the fairness and cost-ef24 fectiveness of our current health care li25 ability system to resolve disputes over, 
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1 and provide compensation for, health 

2 care liability by reducing uncertainty in 

3 the amount of compensation provided to 

4 injured individuals; and 

5 (5) provide an increased sharing of 

6 information in the health care system 

7 which will reduce unintended injury and 

8 improve patient care. 

9 SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

10 The time for the commencement of a 

11 health care lawsuit shall be 3 years after the 

12 date of manifestation of injury or 1 year after 

13 the claimant discovers, or through the use of 

14 reasonable diligence should have discovered, 

15 the injury, whichever occurs first. In no event 

16 shall the time for commencement of a health 

17 care lawsuit exceed 3 years after the date of 

18 manifestation of injury unless tolled for any 

19 of the following: 

20 (1) Upon proof of fraud; 

21 (2) Intentional concealment; or 

22 (3) The presence of a foreign body, 

23 which has no therapeutic or diagnostic 

24 purpose or effect, in the person of the in25 jured person. 
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1 Actions by a minor shall be commenced with2 in 3 years from the date of the alleged mani3 festation of injury except that actions by a 

4 minor under the full age of 6 years shall be 

5 commenced within 3 years of manifestation of 

6 injury or prior to the minor’s 8th birthday, 

7 whichever provides a longer period. Such 

8 time limitation shall be tolled for minors for 

9 any period during which a parent or guardian 

10 and a health care provider or health care or11 ganization have committed fraud or collusion 

12 in the failure to bring an action on behalf of 

13 the injured minor. 

14 SEC. 4. COMPENSATING PATIENT INJURY. 

15 (a) UNLIMITED AMOUNT OF DAMAGES FOR

16 ACTUAL ECONOMIC LOSSES IN HEALTH CARE

17 LAWSUITS.—In any health care lawsuit, noth18 ing in this Act shall limit a claimant’s recov19 ery of the full amount of the available eco20 nomic damages, notwithstanding the limita21 tion in subsection (b). 

22 (b) ADDITIONAL NONECONOMIC DAMAGES.—

23 In any health care lawsuit, the amount of non24 economic damages, if available, may be as 

25 much as $250,000, regardless of the number of 
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1 parties against whom the action is brought or 

2 the number of separate claims or actions 

3 brought with respect to the same injury. 

4 (c) NO DISCOUNT OF AWARD FOR NON5 ECONOMIC DAMAGES.—For purposes of apply6 ing the limitation in subsection (b), future 

7 noneconomic damages shall not be discounted 

8 to present value. The jury shall not be in9 formed about the maximum award for non10 economic damages. An award for non11 economic damages in excess of $250,000 shall 

12 be reduced either before the entry of judg13 ment, or by amendment of the judgment after 

14 entry of judgment, and such reduction shall 

15 be made before accounting for any other re16 duction in damages required by law. If sepa17 rate awards are rendered for past and future 

18 noneconomic damages and the combined 

19 awards exceed $250,000, the future non20 economic damages shall be reduced first.

21 (d) FAIR SHARE RULE.—In any health care 

22 lawsuit, each party shall be liable for that par23 ty’s several share of any damages only and not 

24 for the share of any other person. Each party 

25 shall be liable only for the amount of damages 
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1 allocated to such party in direct proportion to 

2 such party’s percentage of responsibility. 

3 Whenever a judgment of liability is rendered 

4 as to any party, a separate judgment shall be 

5 rendered against each such party for the 

6 amount allocated to such party. For purposes 

7 of this section, the trier of fact shall deter8 mine the proportion of responsibility of each 

9 party for the claimant’s harm. 

10 SEC. 5. MAXIMIZING PATIENT RECOVERY. 

11 (a) COURT SUPERVISION OF SHARE OF DAM12 AGES ACTUALLY PAID TO CLAIMANTS.—In any 

13 health care lawsuit, the court shall supervise 

14 the arrangements for payment of damages to 

15 protect against conflicts of interest that may 

16 have the effect of reducing the amount of 

17 damages awarded that are actually paid to 

18 claimants. In particular, in any health care 

19 lawsuit in which the attorney for a party 

20 claims a financial stake in the outcome by vir21 tue of a contingent fee, the court shall have 

22 the power to restrict the payment of a claim23 ant’s damage recovery to such attorney, and 

24 to redirect such damages to the claimant 

25 based upon the interests of justice and prin-
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1 ciples of equity. In no event shall the total of 

2 all contingent fees for representing all claim3 ants in a health care lawsuit exceed the fol4 lowing limits: 

5 (1) 40 percent of the first $50,000 re6 covered by the claimant(s). 

(2) 331 7 ⁄3 percent of the next $50,000 re8 covered by the claimant(s). 

9 (3) 25 percent of the next $500,000 re10 covered by the claimant(s). 

11 (4) 15 percent of any amount by 

12 which the recovery by the claimant(s) is 

13 in excess of $600,000. 

14 (b) APPLICABILITY.—The limitations in this 

15 section shall apply whether the recovery is by 

16 judgment, settlement, mediation, arbitration, 

17 or any other form of alternative dispute reso18 lution. In a health care lawsuit involving a 

19 minor or incompetent person, a court retains 

20 the authority to authorize or approve a fee 

21 that is less than the maximum permitted 

22 under this section. The requirement for court 

23 supervision in the first two sentences of sub24 section (a) applies only in judicial pro25 ceedings. 
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1 SEC. 6. ADDITIONAL HEALTH BENEFITS. 

2 In any health care lawsuit involving in3 jury or wrongful death, any party may intro4 duce evidence of collateral source benefits. If 

5 a party elects to introduce such evidence, any 

6 opposing party may introduce evidence of any 

7 amount paid or contributed or reasonably 

8 likely to be paid or contributed in the future 

9 by or on behalf of the opposing party to se10 cure the right to such collateral source bene11 fits. No provider of collateral source benefits 

12 shall recover any amount against the claim13 ant or receive any lien or credit against the 

14 claimant’s recovery or be equitably or legally 

15 subrogated to the right of the claimant in a 

16 health care lawsuit involving injury or wrong17 ful death. This section shall apply to any 

18 health care lawsuit that is settled as well as 

19 a health care lawsuit that is resolved by a fact 

20 finder. This section shall not apply to section 

21 1862(b) (42 U.S.C. 1395y(b)) or section 

22 1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the So23 cial Security Act. 

24 SEC. 7. PUNITIVE DAMAGES. 

25 (a) IN GENERAL.—Punitive damages may, if 

26 otherwise permitted by applicable State or 
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1 Federal law, be awarded against any person 

2 in a health care lawsuit only if it is proven by 

3 clear and convincing evidence that such per4 son acted with malicious intent to injure the 

5 claimant, or that such person deliberately 

6 failed to avoid unnecessary injury that such 

7 person knew the claimant was substantially 

8 certain to suffer. In any health care lawsuit 

9 where no judgment for compensatory dam10 ages is rendered against such person, no puni11 tive damages may be awarded with respect to 

12 the claim in such lawsuit. No demand for pu13 nitive damages shall be included in a health 

14 care lawsuit as initially filed. A court may 

15 allow a claimant to file an amended pleading 

16 for punitive damages only upon a motion by 

17 the claimant and after a finding by the court, 

18 upon review of supporting and opposing affi19 davits or after a hearing, after weighing the 

20 evidence, that the claimant has established by 

21 a substantial probability that the claimant 

22 will prevail on the claim for punitive dam23 ages. At the request of any party in a health 

24 care lawsuit, the trier of fact shall consider in 

25 a separate proceeding—
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1 (1) whether punitive damages are to 

2 be awarded and the amount of such 

3 award; and 

4 (2) the amount of punitive damages 

5 following a determination of punitive li6 ability. 

7 If a separate proceeding is requested, evi8 dence relevant only to the claim for punitive 

9 damages, as determined by applicable State 

10 law, shall be inadmissible in any proceeding 

11 to determine whether compensatory damages 

12 are to be awarded. 

13 (b) DETERMINING AMOUNT OF PUNITIVE

14 DAMAGES.—

15 (1) FACTORS CONSIDERED.—In deter16 mining the amount of punitive damages, 

17 if awarded, in a health care lawsuit, the 

18 trier of fact shall consider only the fol19 lowing: 

20 (A) the severity of the harm 

21 caused by the conduct of such party; 

22 (B) the duration of the conduct or 

23 any concealment of it by such party; 

24 (C) the profitability of the con25 duct to such party; 
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1 (D) the number of products sold 

2 or medical procedures rendered for 

3 compensation, as the case may be, by 

4 such party, of the kind causing the 

5 harm complained of by the claimant; 

6 (E) any criminal penalties im7 posed on such party, as a result of the 

8 conduct complained of by the claim9 ant; and 

10 (F) the amount of any civil fines 

11 assessed against such party as a re12 sult of the conduct complained of by 

13 the claimant. 

14 (2) MAXIMUM AWARD.—The amount of 

15 punitive damages, if awarded, in a health 

16 care lawsuit may be as much as $250,000 

17 or as much as two times the amount of 

18 economic damages awarded, whichever is 

19 greater. The jury shall not be informed of 

20 this limitation. 

21 (c) NO PUNITIVE DAMAGES FOR PRODUCTS IN

22 COMPLIANCE WITH FDA STANDARDS.—

23 (1) PUNITIVE DAMAGES.—

24 (A) IN GENERAL.—In addition to 

25 the requirements of subsections (a) 
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1 and (b), punitive damages may not be 

2 awarded against the manufacturer or 

3 distributor of a medical product, or a 

4 supplier of any component or raw 

5 material of such medical product, on 

6 the basis that the harm to the claim7 ant was caused by the lack of safety 

8 or effectiveness of the particular 

9 medical product involved, unless, the 

10 claimant demonstrates by clear and 

11 convincing evidence that—

12 (i) the manufacturer or dis13 tributor of the particular medical 

14 product, or supplier of any com15 ponent or raw material of such 

16 medical product, failed to comply 

17 with a specific requirement of the 

18 Federal Food, Drug, and Cosmetic 

19 Act, section 351 of the Public 

20 Health Service Act, or the regula21 tions promulgated thereunder; 

22 and 

23 (ii) the harm attributed to the 

24 particular medical product re25 sulted from such failure to com-
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1 ply with such specific statutory 

2 requirement or regulation. 

3 (B) RULE OF CONSTRUCTION.—Sub4 paragraph (A) may not be construed 

5 as establishing the obligation of the 

6 Food and Drug Administration to 

7 demonstrate affirmatively that a 

8 manufacturer, distributor, or supplier 

9 referred to in such subparagraph 

10 meets any of the conditions described 

11 in such subparagraph. 

12 (2) LIABILITY OF HEALTH CARE PRO13 VIDERS.—A health care provider who pre14 scribes, or who dispenses pursuant to a 

15 prescription, a medical product ap16 proved, licensed, or cleared by the Food 

17 and Drug Administration shall not be 

18 named as a party to a product liability 

19 lawsuit involving such product and shall 

20 not be liable to a claimant in a class ac21 tion lawsuit against the manufacturer, 

22 distributor, or seller of such product. 

23 Nothing in this paragraph prevents a 

24 court from consolidating cases involving 

25 health care providers and cases involving 
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1 products liability claims against the man2 ufacturer, distributor, or product seller 

3 of such medical product. 

4 (3) EXCEPTION.—Paragraph (1) shall 

5 not apply in any health care lawsuit in 

6 which—

7 (A) a person knowingly misrepre8 sented to the Food and Drug Adminis9 tration information which is required 

10 to be submitted under the Federal 

11 Food, Drug, and Cosmetic Act (21 

12 U.S.C. 301 et seq.) or section 351 of 

13 the Public Health Service Act (42 

14 U.S.C. 262); or 

15 (B) a person made an illegal pay16 ment to a governmental official for 

17 the purpose of either (i) securing or 

18 maintaining approval, clearance, or 

19 licensure of such medical product or 

20 (ii) preventing an enforcement action. 

21 SEC. 8. AUTHORIZATION OF PAYMENT OF FUTURE DAM22 AGES TO CLAIMANTS IN HEALTH CARE LAW23 SUITS. 

24 (a) IN GENERAL.—In any health care law25 suit, if an award of future damages, without 
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1 reduction to present value, equaling or ex2 ceeding $50,000 is made against a party with 

3 sufficient insurance or other assets to fund a 

4 periodic payment of such a judgment, the 

5 court shall, at the request of any party, enter 

6 a judgment ordering that the future damages 

7 be paid by periodic payments. 

8 (b) APPLICABILITY.—This section applies to 

9 all actions which have not been first set for 

10 trial or retrial before the effective date of this 

11 Act. 

12 SEC. 9. DEFINITIONS. 

13 In this Act: 

14 (1) ALTERNATIVE DISPUTE RESOLUTION

15 SYSTEM; ADR.—The term ‘‘alternative dis16 pute resolution system’’ or ‘‘ADR’’ means 

17 a system that provides for the resolution 

18 of health care lawsuits in a manner other 

19 than through a civil action brought in a 

20 State or Federal court.

21 (2) CLAIMANT.—The term ‘‘claimant’’ 

22 means any person who brings a health 

23 care lawsuit, including a person who as24 serts or claims a right to legal or equi25 table contribution, indemnity or subroga-
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1 tion, arising out of a health care liability 

2 claim or action, and any person on whose 

3 behalf such a claim is asserted or such an 

4 action is brought, whether deceased, in5 competent, or a minor. 

6 (3) COLLATERAL SOURCE BENEFITS.—

7 The term ‘‘collateral source benefits’’ 

8 means any amount paid or reasonably 

9 likely to be paid in the future to or on be10 half of the claimant, or any service, prod11 uct or other benefit provided or reason12 ably likely to be provided in the future to 

13 or on behalf of the claimant, as a result of 

14 the injury or wrongful death, pursuant 

15 to—

16 (A) any State or Federal health, 

17 sickness, income-disability, accident, 

18 or workers’ compensation law; 

19 (B) any health, sickness, income20 disability, or accident insurance that 

21 provides health benefits or income22 disability coverage; 

23 (C) any contract or agreement of 

24 any group, organization, partnership, 

25 or corporation to provide, pay for, or 
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1 reimburse the cost of medical, hos2 pital, dental, or income disability ben3 efits; and 

4 (D) any other publicly or pri5 vately funded program. 

6 (4) COMPENSATORY DAMAGES.—The 

7 term ‘‘compensatory damages’’ means ob8 jectively verifiable monetary losses in9 curred as a result of the provision of, use 

10 of, or payment for (or failure to provide, 

11 use, or pay for) health care services or 

12 medical products, such as past and future 

13 medical expenses, loss of past and future 

14 earnings, cost of obtaining domestic serv15 ices, loss of employment, and loss of busi16 ness or employment opportunities, dam17 ages for physical and emotional pain, suf18 fering, inconvenience, physical impair19 ment, mental anguish, disfigurement, loss 

20 of enjoyment of life, loss of society and 

21 companionship, loss of consortium (other 

22 than loss of domestic service), hedonic 

23 damages, injury to reputation, and all 

24 other nonpecuniary losses of any kind or 

25 nature. The term ‘‘compensatory dam-
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1 ages’’ includes economic damages and 

2 noneconomic damages, as such terms are 

3 defined in this section. 

4 (5) CONTINGENT FEE.—The term ‘‘con5 tingent fee’’ includes all compensation to 

6 any person or persons which is payable 

7 only if a recovery is effected on behalf of 

8 one or more claimants. 

9 (6) ECONOMIC DAMAGES.—The term 

10 ‘‘economic damages’’ means objectively 

11 verifiable monetary losses incurred as a 

12 result of the provision of, use of, or pay13 ment for (or failure to provide, use, or 

14 pay for) health care services or medical 

15 products, such as past and future medical 

16 expenses, loss of past and future earn17 ings, cost of obtaining domestic services, 

18 loss of employment, and loss of business 

19 or employment opportunities. 

20 (7) HEALTH CARE LAWSUIT.—The term 

21 ‘‘health care lawsuit’’ means any health 

22 care liability claim concerning the provi23 sion of health care goods or services af24 fecting interstate commerce, or any 

25 health care liability action concerning 
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1 the provision of health care goods or 

2 services affecting interstate commerce, 

3 brought in a State or Federal court or 

4 pursuant to an alternative dispute resolu5 tion system, against a health care pro6 vider, a health care organization, or the 

7 manufacturer, distributor, supplier, mar8 keter, promoter, or seller of a medical 

9 product, regardless of the theory of liabil10 ity on which the claim is based, or the 

11 number of claimants, plaintiffs, defend12 ants, or other parties, or the number of 

13 claims or causes of action, in which the 

14 claimant alleges a health care liability 

15 claim. Such term does not include a claim 

16 or action which is based on criminal li17 ability; which seeks civil fines or pen18 alties paid to Federal, State, or local gov19 ernment; which is grounded in antitrust; 

20 or in which the dispute is over the price 

21 of health care goods or services. 

22 (8) HEALTH CARE LIABILITY ACTION.—

23 The term ‘‘health care liability action’’ 

24 means a civil action brought in a State or 

25 Federal Court or pursuant to an alter-
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1 native dispute resolution system, against 

2 a health care provider, a health care or3 ganization, or the manufacturer, dis4 tributor, supplier, marketer, promoter, or 

5 seller of a medical product, regardless of 

6 the theory of liability on which the claim 

7 is based, or the number of plaintiffs, de8 fendants, or other parties, or the number 

9 of causes of action, in which the claimant 

10 alleges a health care liability claim. 

11 (9) HEALTH CARE LIABILITY CLAIM.—The 

12 term ‘‘health care liability claim’’ means a 

13 demand by any person, whether or not 

14 pursuant to ADR, against a health care 

15 provider, health care organization, or the 

16 manufacturer, distributor, supplier, mar17 keter, promoter, or seller of a medical 

18 product, including, but not limited to, 

19 third-party claims, cross-claims, counter20 claims, or contribution claims, which are 

21 based upon the provision of, use of, or 

22 payment for (or the failure to provide, 

23 use, or pay for) health care services or 

24 medical products, regardless of the the25 ory of liability on which the claim is 
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1 based, or the number of plaintiffs, de2 fendants, or other parties, or the number 

3 of causes of action. 

4 (10) HEALTH CARE ORGANIZATION.—The 

5 term ‘‘health care organization’’ means 

6 any person or entity which is obligated to 

7 provide or pay for health benefits under 

8 any health plan, including any person or 

9 entity acting under a contract or ar10 rangement with a health care organiza11 tion to provide or administer any health 

12 benefit. 

13 (11) HEALTH CARE PROVIDER.—The 

14 term ‘‘health care provider’’ means any 

15 person or entity required by State or 

16 Federal laws or regulations to be li17 censed, registered, or certified to provide 

18 health care services, and being either so 

19 licensed, registered, or certified, or ex20 empted from such requirement by other 

21 statute or regulation. 

22 (12) HEALTH CARE GOODS OR SERV23 ICES.—The term ‘‘health care goods or 

24 services’’ means any goods or services 

25 provided by a health care organization, 
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1 provider, or by any individual working 

2 under the supervision of a health care 

3 provider, that relates to the diagnosis, 

4 prevention, or treatment of any human 

5 disease or impairment, or the assessment 

6 or care of the health of human beings. 

7 (13) MALICIOUS INTENT TO INJURE.—

8 The term ‘‘malicious intent to injure’’ 

9 means intentionally causing or attempt10 ing to cause physical injury other than 

11 providing health care goods or services. 

12 (14) MEDICAL PRODUCT.—The term 

13 ‘‘medical product’’ means a drug, device, 

14 or biological product intended for hu15 mans, and the terms ‘‘drug’’, ‘‘device’’, and 

16 ‘‘biological product’’ have the meanings 

17 given such terms in sections 201(g)(1) and 

18 201(h) of the Federal Food, Drug and Cos19 metic Act (21 U.S.C. 321) and section 

20 351(a) of the Public Health Service Act 

21 (42 U.S.C. 262(a)), respectively, including 

22 any component or raw material used 

23 therein, but excluding health care serv24 ices. 
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1 (15) NONECONOMIC DAMAGES.—The 

2 term ‘‘noneconomic damages’’ means 

3 damages for physical and emotional pain, 

4 suffering, inconvenience, physical impair5 ment, mental anguish, disfigurement, loss 

6 of enjoyment of life, loss of society and 

7 companionship, loss of consortium (other 

8 than loss of domestic service), hedonic 

9 damages, injury to reputation, and all 

10 other nonpecuniary losses of any kind or 

11 nature. 

12 (16) PUNITIVE DAMAGES.—The term 

13 ‘‘punitive damages’’ means damages 

14 awarded, for the purpose of punishment 

15 or deterrence, and not solely for compen16 satory purposes, against a health care 

17 provider, health care organization, or a 

18 manufacturer, distributor, or supplier of 

19 a medical product. Punitive damages are 

20 neither economic nor noneconomic dam21 ages. 

22 (17) RECOVERY.—The term ‘‘recovery’’ 

23 means the net sum recovered after de24 ducting any disbursements or costs in25 curred in connection with prosecution or 
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1 settlement of the claim, including all 

2 costs paid or advanced by any person. 

3 Costs of health care incurred by the 

4 plaintiff and the attorneys’ office over5 head costs or charges for legal services 

6 are not deductible disbursements or costs 

7 for such purpose. 

8 (18) STATE.—The term ‘‘State’’ means 

9 each of the several States, the District of 

10 Columbia, the Commonwealth of Puerto 

11 Rico, the Virgin Islands, Guam, American 

12 Samoa, the Northern Mariana Islands, 

13 the Trust Territory of the Pacific Islands, 

14 and any other territory or possession of 

15 the United States, or any political sub16 division thereof.

17 SEC. 10. EFFECT ON OTHER LAWS. 

18 (a) VACCINE INJURY.—

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

20 Public Health Service Act establishes a 

21 Federal rule of law applicable to a civil 

22 action brought for a vaccine-related in23 jury or death—
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1 (A) this Act does not affect the ap2 plication of the rule of law to such an 

3 action; and 

4 (B) any rule of law prescribed by 

5 this Act in conflict with a rule of law 

6 of such title XXI shall not apply to 

7 such action. 

8 (2) If there is an aspect of a civil ac9 tion brought for a vaccine-related injury 

10 or death to which a Federal rule of law 

11 under title XXI of the Public Health Serv12 ice Act does not apply, then this Act or 

13 otherwise applicable law (as determined 

14 under this Act) will apply to such aspect 

15 of such action. 

16 (b) OTHER FEDERAL LAW.—Except as pro17 vided in this section, nothing in this Act shall 

18 be deemed to affect any defense available to 

19 a defendant in a health care lawsuit or action 

20 under any other provision of Federal law. 

21 SEC. 11. STATE FLEXIBILITY AND PROTECTION OF STATES’ 

22 RIGHTS. 

23 (a) HEALTH CARE LAWSUITS.—The provi24 sions governing health care lawsuits set forth 

25 in this Act preempt, subject to subsections (b) 
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1 and (c), State law to the extent that State law 

2 prevents the application of any provisions of 

3 law established by or under this Act. The pro4 visions governing health care lawsuits set 

5 forth in this Act supersede chapter 171 of title 

6 28, United States Code, to the extent that such 

7 chapter—

8 (1) provides for a greater amount of 

9 damages or contingent fees, a longer pe10 riod in which a health care lawsuit may 

11 be commenced, or a reduced applicability 

12 or scope of periodic payment of future 

13 damages, than provided in this Act; or 

14 (2) prohibits the introduction of evi15 dence regarding collateral source bene16 fits, or mandates or permits subrogation 

17 or a lien on collateral source benefits. 

18 (b) PROTECTION OF STATES’ RIGHTS AND

19 OTHER LAWS.—(1) Any issue that is not gov20 erned by any provision of law established by 

21 or under this Act (including State standards 

22 of negligence) shall be governed by otherwise 

23 applicable State or Federal law. 

24 (2) This Act shall not preempt or super25 sede any State or Federal law that imposes 
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1 greater procedural or substantive protections 

2 for health care providers and health care or3 ganizations from liability, loss, or damages 

4 than those provided by this Act or create a 

5 cause of action. 

6 (c) STATE FLEXIBILITY.—No provision of 

7 this Act shall be construed to preempt—

8 (1) any State law (whether effective 

9 before, on, or after the date of the enact10 ment of this Act) that specifies a par11 ticular monetary amount of compen12 satory or punitive damages (or the total 

13 amount of damages) that may be awarded 

14 in a health care lawsuit, regardless of 

15 whether such monetary amount is great16 er or lesser than is provided for under 

17 this Act, notwithstanding section 4(a); or 

18 (2) any defense available to a party in 

19 a health care lawsuit under any other 

20 provision of State or Federal law. 

21 SEC. 12. APPLICABILITY; EFFECTIVE DATE. 

22 This Act shall apply to any health care 

23 lawsuit brought in a Federal or State court, 

24 or subject to an alternative dispute resolution 

25 system, that is initiated on or after the date 
53

•HR 5 RH 

1 of the enactment of this Act, except that any 

2 health care lawsuit arising from an injury oc3 curring prior to the date of the enactment of 

4 this Act shall be governed by the applicable 

5 statute of limitations provisions in effect at 

6 the time the injury occurred. 

7 SEC. 13. SENSE OF CONGRESS. 

8 It is the sense of Congress that a health 

9 insurer should be liable for damages for harm 

10 caused when it makes a decision as to what 

11 care is medically necessary and appropriate.
Union Calendar No. 20

108TH CONGRESS 

1ST SESSION H. R. 5

[Report No. 108–32, Parts I and II] 

A BILL

To improve patient access to health care services 

and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system. 

MARCH 11, 2003

Reported from the Committee on the Judiciary with an 

amendment 

MARCH 11, 2003

Reported from the Committee on Energy and Commerce 

with an amendment; committed to the Committee of the Whole House on the State of the Union and ordered to be printed