108TH CONGRESS

1ST SESSION H. R. 5

AN ACT

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,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Help Efficient, Acces3 sible, Low-cost, Timely Healthcare (HEALTH) Act of

4 2003’’.

5 SEC. 2. FINDINGS AND PURPOSE.

6 (a) FINDINGS.—

7 (1) EFFECT ON HEALTH CARE ACCESS AND

8 COSTS.—Congress finds that our current civil justice

9 system is adversely affecting patient access to health

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

11 health care, in that the health care liability system

12 is a costly and ineffective mechanism for resolving

13 claims of health care liability and compensating in14 jured patients, and is a deterrent to the sharing of

15 information among health care professionals which

16 impedes efforts to improve patient safety and quality

17 of care.

18 (2) EFFECT ON INTERSTATE COMMERCE.—

19 Congress finds that the health care and insurance

20 industries are industries affecting interstate com21 merce and the health care liability litigation systems

22 existing throughout the United States are activities

23 that affect interstate commerce by contributing to

24 the high costs of health care and premiums for

25 health care liability insurance purchased by health

26 care system providers.
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1 (3) EFFECT ON FEDERAL SPENDING.—Con2 gress finds that the health care liability litigation

3 systems existing throughout the United States have

4 a significant effect on the amount, distribution, and

5 use of Federal funds because of—

6 (A) the large number of individuals who

7 receive health care benefits under programs op8 erated or financed by the Federal Government;

9 (B) the large number of individuals who

10 benefit because of the exclusion from Federal

11 taxes of the amounts spent to provide them

12 with health insurance benefits; and

13 (C) the large number of health care pro14 viders who provide items or services for which

15 the Federal Government makes payments.

16 (b) PURPOSE.—It is the purpose of this Act to imple17 ment reasonable, comprehensive, and effective health care

18 liability reforms designed to—

19 (1) improve the availability of health care serv20 ices in cases in which health care liability actions

21 have been shown to be a factor in the decreased

22 availability of services;

23 (2) reduce the incidence of ‘‘defensive medi24 cine’’ and lower the cost of health care liability in-
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1 surance, all of which contribute to the escalation of

2 health care costs;

3 (3) ensure that persons with meritorious health

4 care injury claims receive fair and adequate com5 pensation, including reasonable noneconomic dam6 ages;

7 (4) improve the fairness and cost-effectiveness

8 of our current health care liability system to resolve

9 disputes over, and provide compensation for, health

10 care liability by reducing uncertainty in the amount

11 of compensation provided to injured individuals; and

12 (5) provide an increased sharing of information

13 in the health care system which will reduce unin14 tended injury and improve patient care.

15 SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

16 The time for the commencement of a health care law17 suit shall be 3 years after the date of manifestation of

18 injury or 1 year after the claimant discovers, or through

19 the use of reasonable diligence should have discovered, the

20 injury, whichever occurs first. In no event shall the time

21 for commencement of a health care lawsuit exceed 3 years

22 after the date of manifestation of injury unless tolled for

23 any of the following—

24 (1) upon proof of fraud;

25 (2) intentional concealment; or
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1 (3) the presence of a foreign body, which has no

2 therapeutic or diagnostic purpose or effect, in the

3 person of the injured person.

4 Actions by a minor shall be commenced within 3 years

5 from the date of the alleged manifestation of injury except

6 that actions by a minor under the full age of 6 years shall

7 be commenced within 3 years of manifestation of injury

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

9 a longer period. Such time limitation shall be tolled for

10 minors for any period during which a parent or guardian

11 and a health care provider or health care organization

12 have committed fraud or collusion in the failure to bring

13 an action on behalf of the injured minor.

14 SEC. 4. COMPENSATING PATIENT INJURY.

15 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

16 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any

17 health care lawsuit, nothing in this Act shall limit a claim18 ant’s recovery of the full amount of the available economic

19 damages, notwithstanding the limitation in subsection (b).

20 (b) ADDITIONAL NONECONOMIC DAMAGES.—In any

21 health care lawsuit, the amount of noneconomic damages,

22 if available, may be as much as $250,000, regardless of

23 the number of parties against whom the action is brought

24 or the number of separate claims or actions brought with

25 respect to the same injury.
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1 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

2 DAMAGES.—For purposes of applying the limitation in

3 subsection (b), future noneconomic damages shall not be

4 discounted to present value. The jury shall not be in5 formed about the maximum award for noneconomic dam6 ages. An award for noneconomic damages in excess of

7 $250,000 shall be reduced either before the entry of judg8 ment, or by amendment of the judgment after entry of

9 judgment, and such reduction shall be made before ac10 counting for any other reduction in damages required by

11 law. If separate awards are rendered for past and future

12 noneconomic damages and the combined awards exceed

13 $250,000, the future noneconomic damages shall be re14 duced first.

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

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

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

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

19 damages allocated to such party in direct proportion to

20 such party’s percentage of responsibility. Whenever a

21 judgment of liability is rendered as to any party, a sepa22 rate judgment shall be rendered against each such party

23 for the amount allocated to such party. For purposes of

24 this section, the trier of fact shall determine the propor-
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1 tion of responsibility of each party for the claimant’s

2 harm.

3 SEC. 5. MAXIMIZING PATIENT RECOVERY.

4 (a) COURT SUPERVISION OF SHARE OF DAMAGES

5 ACTUALLY PAID TO CLAIMANTS.—In any health care law6 suit, the court shall supervise the arrangements for pay7 ment of damages to protect against conflicts of interest

8 that may have the effect of reducing the amount of dam9 ages awarded that are actually paid to claimants. In par10 ticular, in any health care lawsuit in which the attorney

11 for a party claims a financial stake in the outcome by vir12 tue of a contingent fee, the court shall have the power

13 to restrict the payment of a claimant’s damage recovery

14 to such attorney, and to redirect such damages to the

15 claimant based upon the interests of justice and principles

16 of equity. In no event shall the total of all contingent fees

17 for representing all claimants in a health care lawsuit ex18 ceed the following limits:

19 (1) 40 percent of the first $50,000 recovered by

20 the claimant(s).

(2) 331 21 ⁄3 percent of the next $50,000 recovered

22 by the claimant(s).

23 (3) 25 percent of the next $500,000 recovered

24 by the claimant(s).
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1 (4) 15 percent of any amount by which the re2 covery by the claimant(s) is in excess of $600,000.

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

4 shall apply whether the recovery is by judgment, settle5 ment, mediation, arbitration, or any other form of alter6 native dispute resolution. In a health care lawsuit involv7 ing a minor or incompetent person, a court retains the

8 authority to authorize or approve a fee that is less than

9 the maximum permitted under this section. The require10 ment for court supervision in the first two sentences of

11 subsection (a) applies only in civil actions.

12 SEC. 6. ADDITIONAL HEALTH BENEFITS.

13 In any health care lawsuit involving injury or wrong14 ful death, any party may introduce evidence of collateral

15 source benefits. If a party elects to introduce such evi16 dence, any opposing party may introduce evidence of any

17 amount paid or contributed or reasonably likely to be paid

18 or contributed in the future by or on behalf of the oppos19 ing party to secure the right to such collateral source bene20 fits. No provider of collateral source benefits shall recover

21 any amount against the claimant or receive any lien or

22 credit against the claimant’s recovery or be equitably or

23 legally subrogated to the right of the claimant in a health

24 care lawsuit involving injury or wrongful death. This sec25 tion shall apply to any health care lawsuit that is settled
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1 as well as a health care lawsuit that is resolved by a fact

2 finder. This section shall not apply to section 1862(b) (42

3 U.S.C. 1395y(b)) or section 1902(a)(25) (42 U.S.C.

4 1396a(a)(25)) of the Social Security Act.

5 SEC. 7. PUNITIVE DAMAGES.

6 (a) IN GENERAL.—Punitive damages may, if other7 wise permitted by applicable State or Federal law, be

8 awarded against any person in a health care lawsuit only

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

10 person acted with malicious intent to injure the claimant,

11 or that such person deliberately failed to avoid unneces12 sary injury that such person knew the claimant was sub13 stantially certain to suffer. In any health care lawsuit

14 where no judgment for compensatory damages is rendered

15 against such person, no punitive damages may be awarded

16 with respect to the claim in such lawsuit. No demand for

17 punitive damages shall be included in a health care lawsuit

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

19 amended pleading for punitive damages only upon a mo20 tion by the claimant and after a finding by the court, upon

21 review of supporting and opposing affidavits or after a

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

23 established by a substantial probability that the claimant

24 will prevail on the claim for punitive damages. At the re-
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1 quest of any party in a health care lawsuit, the trier of

2 fact shall consider in a separate proceeding—

3 (1) whether punitive damages are to be award4 ed and the amount of such award; and

5 (2) the amount of punitive damages following a

6 determination of punitive liability.

7 If a separate proceeding is requested, evidence relevant

8 only to the claim for punitive damages, as determined by

9 applicable State law, shall be inadmissible in any pro10 ceeding to determine whether compensatory damages are

11 to be awarded.

12 (b) DETERMINING AMOUNT OF PUNITIVE DAM13 AGES.—

14 (1) FACTORS CONSIDERED.—In determining

15 the amount of punitive damages, if awarded, in a

16 health care lawsuit, the trier of fact shall consider

17 only the following—

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

19 conduct of such party;

20 (B) the duration of the conduct or any

21 concealment of it by such party;

22 (C) the profitability of the conduct to such

23 party;

24 (D) the number of products sold or med25 ical procedures rendered for compensation, as
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1 the case may be, by such party, of the kind

2 causing the harm complained of by the claim3 ant;

4 (E) any criminal penalties imposed on such

5 party, as a result of the conduct complained of

6 by the claimant; and

7 (F) the amount of any civil fines assessed

8 against such party as a result of the conduct

9 complained of by the claimant.

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

11 damages, if awarded, in a health care lawsuit may

12 be as much as $250,000 or as much as two times

13 the amount of economic damages awarded, which14 ever is greater. The jury shall not be informed of

15 this limitation.

16 (c) NO PUNITIVE DAMAGES FOR PRODUCTS THAT

17 COMPLY WITH FDA STANDARDS.—

18 (1) IN GENERAL.—

19 (A) No punitive damages may be awarded

20 against the manufacturer or distributor of a

21 medical product, or a supplier of any compo22 nent or raw material of such medical product,

23 based on a claim that such product caused the

24 claimant’s harm where—
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1 (i)(I) such medical product was sub2 ject to premarket approval, clearance, or li3 censure by the Food and Drug Administra4 tion with respect to the safety of the for5 mulation or performance of the aspect of

6 such medical product which caused the

7 claimant’s harm or the adequacy of the

8 packaging or labeling of such medical

9 product; and

10 (II) such medical product was so ap11 proved, cleared, or licensed; or

12 (ii) such medical product is generally

13 recognized among qualified experts as safe

14 and effective pursuant to conditions estab15 lished by the Food and Drug Administra16 tion and applicable Food and Drug Admin17 istration regulations, including without

18 limitation those related to packaging and

19 labeling, unless the Food and Drug Admin20 istration has determined that such medical

21 product was not manufactured or distrib22 uted in substantial compliance with appli23 cable Food and Drug Administration stat24 utes and regulations.
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1 (B) RULE OF CONSTRUCTION.—Subpara2 graph (A) may not be construed as establishing

3 the obligation of the Food and Drug Adminis4 tration to demonstrate affirmatively that a

5 manufacturer, distributor, or supplier referred

6 to in such subparagraph meets any of the con7 ditions described in such subparagraph.

8 (2) LIABILITY OF HEALTH CARE PROVIDERS.—

9 A health care provider who prescribes, or who dis10 penses pursuant to a prescription, a medical product

11 approved, licensed, or cleared by the Food and Drug

12 Administration shall not be named as a party to a

13 product liability lawsuit involving such product and

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

15 lawsuit against the manufacturer, distributor, or

16 seller of such product. Nothing in this paragraph

17 prevents a court from consolidating cases involving

18 health care providers and cases involving products li19 ability claims against the manufacturer, distributor,

20 or product seller of such medical product.

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

22 harm which is alleged to relate to the adequacy of

23 the packaging or labeling of a drug which is required

24 to have tamper-resistant packaging under regula25 tions of the Secretary of Health and Human Serv-
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1 ices (including labeling regulations related to such

2 packaging), the manufacturer or product seller of

3 the drug shall not be held liable for punitive dam4 ages unless such packaging or labeling is found by

5 the trier of fact by clear and convincing evidence to

6 be substantially out of compliance with such regula7 tions.

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

9 apply in any health care lawsuit in which—

10 (A) a person, before or after premarket ap11 proval, clearance, or licensure of such medical

12 product, knowingly misrepresented to or with13 held from the Food and Drug Administration

14 information that is required to be submitted

15 under the Federal Food, Drug, and Cosmetic

16 Act (21 U.S.C. 301 et seq.) or section 351 of

17 the Public Health Service Act (42 U.S.C. 262)

18 that is material and is causally related to the

19 harm which the claimant allegedly suffered; or

20 (B) a person made an illegal payment to

21 an official of the Food and Drug Administra22 tion for the purpose of either securing or main23 taining approval, clearance, or licensure of such

24 medical product.
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1 SEC. 8. AUTHORIZATION OF PAYMENT OF FUTURE DAM2 AGES TO CLAIMANTS IN HEALTH CARE LAW3 SUITS.

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

5 award of future damages, without reduction to present

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

7 party with sufficient insurance or other assets to fund a

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

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

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

11 health care lawsuit, the court may be guided by the Uni12 form Periodic Payment of Judgments Act promulgated by

13 the National Conference of Commissioners on Uniform

14 State Laws.

15 (b) APPLICABILITY.—This section applies to all ac16 tions which have not been first set for trial or retrial be17 fore the effective date of this Act.

18 SEC. 9. DEFINITIONS.

19 In this Act:

20 (1) ALTERNATIVE DISPUTE RESOLUTION SYS21 TEM; ADR.—The term ‘‘alternative dispute resolution

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

23 for the resolution of health care lawsuits in a man24 ner other than through a civil action brought in a

25 State or Federal court.
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1 (2) CLAIMANT.—The term ‘‘claimant’’ means

2 any person who brings a health care lawsuit, includ3 ing a person who asserts or claims a right to legal

4 or equitable contribution, indemnity or subrogation,

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

6 and any person on whose behalf such a claim is as7 serted or such an action is brought, whether de8 ceased, incompetent, or a minor.

9 (3) COLLATERAL SOURCE BENEFITS.—The

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

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

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

13 or other benefit provided or reasonably likely to be

14 provided in the future to or on behalf of the claim15 ant, as a result of the injury or wrongful death, pur16 suant to—

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

18 income-disability, accident, or workers’ com19 pensation law;

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

21 or accident insurance that provides health bene22 fits or income-disability coverage;

23 (C) any contract or agreement of any

24 group, organization, partnership, or corporation

25 to provide, pay for, or reimburse the cost of
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1 medical, hospital, dental, or income disability

2 benefits; and

3 (D) any other publicly or privately funded

4 program.

5 (4) COMPENSATORY DAMAGES.—The term

6 ‘‘compensatory damages’’ means objectively

7 verifiable monetary losses incurred as a result of the

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

9 provide, use, or pay for) health care services or med10 ical products, such as past and future medical ex11 penses, loss of past and future earnings, cost of ob12 taining domestic services, loss of employment, and

13 loss of business or employment opportunities, dam14 ages for physical and emotional pain, suffering, in15 convenience, physical impairment, mental anguish,

16 disfigurement, loss of enjoyment of life, loss of soci17 ety and companionship, loss of consortium (other

18 than loss of domestic service), hedonic damages, in19 jury to reputation, and all other nonpecuniary losses

20 of any kind or nature. The term ‘‘compensatory

21 damages’’ includes economic damages and non22 economic damages, as such terms are defined in this

23 section.

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

25 fee’’ includes all compensation to any person or per-
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1 sons which is payable only if a recovery is effected

2 on behalf of one or more claimants.

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

4 damages’’ means objectively verifiable monetary

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

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

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

8 past and future medical expenses, loss of past and

9 future earnings, cost of obtaining domestic services,

10 loss of employment, and loss of business or employ11 ment opportunities.

12 (7) HEALTH CARE LAWSUIT.—The term

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

14 claim concerning the provision of health care goods

15 or services or any medical product affecting inter16 state commerce, or any health care liability action

17 concerning the provision of health care goods or

18 services or any medical product affecting interstate

19 commerce, brought in a State or Federal court or

20 pursuant to an alternative dispute resolution system,

21 against a health care provider, a health care organi22 zation, or the manufacturer, distributor, supplier,

23 marketer, promoter, or seller of a medical product,

24 regardless of the theory of liability on which the

25 claim is based, or the number of claimants, plain-
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1 tiffs, defendants, or other parties, or the number of

2 claims or causes of action, in which the claimant al3 leges a health care liability claim. Such term does

4 not include a claim or action which is based on

5 criminal liability; which seeks civil fines or penalties

6 paid to Federal, State, or local government; or which

7 is grounded in antitrust.

8 (8) HEALTH CARE LIABILITY ACTION.—The

9 term ‘‘health care liability action’’ means a civil ac10 tion brought in a State or Federal Court or pursu11 ant to an alternative dispute resolution system,

12 against a health care provider, a health care organi13 zation, or the manufacturer, distributor, supplier,

14 marketer, promoter, or seller of a medical product,

15 regardless of the theory of liability on which the

16 claim is based, or the number of plaintiffs, defend17 ants, or other parties, or the number of causes of ac18 tion, in which the claimant alleges a health care li19 ability claim.

20 (9) 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 health care provider, health care organiza24 tion, or the manufacturer, distributor, supplier, mar25 keter, promoter, or seller of a medical product, in-
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1 cluding, but not limited to, third-party claims, cross2 claims, counter-claims, or contribution claims, which

3 are based upon the provision of, use of, or payment

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

5 care services or medical products, regardless of the

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

7 number of plaintiffs, defendants, or other parties, or

8 the number of causes of action.

9 (10) HEALTH CARE ORGANIZATION.—The term

10 ‘‘health care organization’’ means any person or en11 tity which is obligated to provide or pay for health

12 benefits under any health plan, including any person

13 or entity acting under a contract or arrangement

14 with a health care organization to provide or admin15 ister any health benefit.

16 (11) HEALTH CARE PROVIDER.—The term

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

18 required by State or Federal laws or regulations to

19 be licensed, registered, or certified to provide health

20 care services, and being either so licensed, reg21 istered, or certified, or exempted from such require22 ment by other statute or regulation.

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

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

25 goods or services provided by a health care organiza-
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1 tion, provider, or by any individual working under

2 the supervision of a health care provider, that relates

3 to the diagnosis, prevention, or treatment of any

4 human disease or impairment, or the assessment or

5 care of the health of human beings.

6 (13) MALICIOUS INTENT TO INJURE.—The

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

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

12 product’’ means a drug, device, or biological product

13 intended for humans, and the terms ‘‘drug’’, ‘‘de14 vice’’, and ‘‘biological product’’ have the meanings

15 given such terms in sections 201(g)(1) and 201(h)

16 of the Federal Food, Drug and Cosmetic Act (21

17 U.S.C. 321) and section 351(a) of the Public Health

18 Service Act (42 U.S.C. 262(a)), respectively, includ19 ing any component or raw material used therein, but

20 excluding health care services.

21 (15) NONECONOMIC DAMAGES.—The term

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

24 physical impairment, mental anguish, disfigurement,

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

4 or nature.

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

6 damages’’ means damages awarded, for the purpose

7 of punishment or deterrence, and not solely for com8 pensatory purposes, against a health care provider,

9 health care organization, or a manufacturer, dis10 tributor, or supplier of a medical product. Punitive

11 damages are neither economic nor noneconomic

12 damages.

13 (17) RECOVERY.—The term ‘‘recovery’’ means

14 the net sum recovered after deducting any disburse15 ments or costs incurred in connection with prosecu16 tion or settlement of the claim, including all costs

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

18 incurred by the plaintiff and the attorneys’ office

19 overhead costs or charges for legal services are not

20 deductible disbursements or costs for such purpose.

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

22 the several States, the District of Columbia, the

23 Commonwealth of Puerto Rico, the Virgin Islands,

24 Guam, American Samoa, the Northern Mariana Is25 lands, the Trust Territory of the Pacific Islands, and
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1 any other territory or possession of the United

2 States, or any political subdivision thereof.

3 SEC. 10. EFFECT ON OTHER LAWS.

4 (a) VACCINE INJURY.—

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

6 Health Service Act establishes a Federal rule of law

7 applicable to a civil action brought for a vaccine-re8 lated injury or death—

9 (A) this Act does not affect the application

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

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

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

13 shall not apply to such action.

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

15 brought for a vaccine-related injury or death to

16 which a Federal rule of law under title XXI of the

17 Public Health Service Act does not apply, then this

18 Act or otherwise applicable law (as determined

19 under this Act) will apply to such aspect of such ac20 tion.

21 (b) OTHER FEDERAL LAW.—Except as provided in

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

23 any defense available to a defendant in a health care law24 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

8 governing health care lawsuits set forth in this Act super9 sede chapter 171 of title 28, United States Code, to the

10 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, or mandates or

18 permits subrogation or a lien on collateral source

19 benefits.

20 (b) PROTECTION OF STATES’ RIGHTS AND OTHER

21 LAWS.—(1) Any issue that is not governed by any provi22 sion of law established by or under this Act (including

23 State standards of negligence) shall be governed by other24 wise applicable State or Federal law.

25 (2) This Act shall not preempt or supersede any State

26 or Federal law that imposes greater procedural or sub-
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1 stantive protections for health care providers and health

2 care organizations from liability, loss, or damages than

3 those provided by this Act or create a cause of action.

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

5 shall be construed to preempt—

6 (1) any State law (whether effective before, on,

7 or after the date of the enactment of this Act) that

8 specifies a particular monetary amount of compen9 satory or punitive damages (or the total amount of

10 damages) that may be awarded in a health care law11 suit, regardless of whether such monetary amount is

12 greater or lesser than is provided for under this Act,

13 notwithstanding section 4(a); or

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

15 care lawsuit under any other provision of State or

16 Federal law.

17 SEC. 12. APPLICABILITY; EFFECTIVE DATE.

18 This Act shall apply to any health care lawsuit

19 brought in a Federal or State court, or subject to an alter20 native dispute resolution system, that is initiated on or

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

22 any health care lawsuit arising from an injury occurring

23 prior to the date of the enactment of this Act shall be

24 governed by the applicable statute of limitations provisions

25 in effect 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

3 should be liable for damages for harm caused when it

4 makes a decision as to what care is medically necessary

5 and appropriate.

Passed the House of Representatives March 13,

2003.

Attest:

Clerk.
108TH CONGRESS

1ST SESSION H. R. 5

AN ACT

To improve patient access to health care services

and provide improved medical care by reducingthe excessive burden the liability system placeson the health care delivery system.