I 

108TH CONGRESS 

1ST SESSION H. R. 5

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 

A BILL

To improve patient access to health care services and provide 

improved medical care by reducing the excessive burden 
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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’’. 

7 SEC. 2. FINDINGS AND PURPOSE. 

8 (a) FINDINGS.—

9 (1) EFFECT ON HEALTH CARE ACCESS AND

10 COSTS.—Congress finds that our current civil justice 

11 system is adversely affecting patient access to health 

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

13 health care, in that the health care liability system 

14 is a costly and ineffective mechanism for resolving 

15 claims of health care liability and compensating in16 jured patients, and is a deterrent to the sharing of 

17 information among health care professionals which 

18 impedes efforts to improve patient safety and quality 

19 of care. 

20 (2) EFFECT ON INTERSTATE COMMERCE.—

21 Congress finds that the health care and insurance 

22 industries are industries affecting interstate com23 merce and the health care liability litigation systems 

24 existing throughout the United States are activities 
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1 that affect interstate commerce by contributing to 

2 the high costs of health care and premiums for 

3 health care liability insurance purchased by health 

4 care system providers. 

5 (3) EFFECT ON FEDERAL SPENDING.—Con6 gress finds that the health care liability litigation 

7 systems existing throughout the United States have 

8 a significant effect on the amount, distribution, and 

9 use of Federal funds because of—

10 (A) the large number of individuals who 

11 receive health care benefits under programs op12 erated or financed by the Federal Government; 

13 (B) the large number of individuals who 

14 benefit because of the exclusion from Federal 

15 taxes of the amounts spent to provide them 

16 with health insurance benefits; and 

17 (C) the large number of health care pro18 viders who provide items or services for which 

19 the Federal Government makes payments. 

20 (b) PURPOSE.—It is the purpose of this Act to imple21 ment reasonable, comprehensive, and effective health care 

22 liability reforms designed to—

23 (1) improve the availability of health care serv24 ices in cases in which health care liability actions 
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1 have been shown to be a factor in the decreased 

2 availability of services; 

3 (2) reduce the incidence of ‘‘defensive medi4 cine’’ and lower the cost of health care liability in5 surance, all of which contribute to the escalation of 

6 health care costs; 

7 (3) ensure that persons with meritorious health 

8 care injury claims receive fair and adequate com9 pensation, including reasonable noneconomic dam10 ages; 

11 (4) improve the fairness and cost-effectiveness 

12 of our current health care liability system to resolve 

13 disputes over, and provide compensation for, health 

14 care liability by reducing uncertainty in the amount 

15 of compensation provided to injured individuals; 

16 (5) provide an increased sharing of information 

17 in the health care system which will reduce unin18 tended injury and improve patient care. 

19 SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 

20 The time for the commencement of a health care law21 suit shall be 3 years after the date of manifestation of 

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

23 the use of reasonable diligence should have discovered, the 

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

25 for commencement of a health care lawsuit exceed 3 years 
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1 after the date of manifestation of injury unless tolled for 

2 any of the following: 

3 (1) Upon proof of fraud; 

4 (2) Intentional concealment; or 

5 (3) The presence of a foreign body, which has 

6 no therapeutic or diagnostic purpose or effect, in the 

7 person of the injured person. 

8 Actions by a minor shall be commenced within 3 years 

9 from the date of the alleged manifestation of injury except 

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

11 be commenced within 3 years of manifestation of injury 

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

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

14 minors for any period during which a parent or guardian 

15 and a health care provider or health care organization 

16 have committed fraud or collusion in the failure to bring 

17 an action on behalf of the injured minor. 

18 SEC. 4. COMPENSATING PATIENT INJURY. 

19 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL

20 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 

21 health care lawsuit, the full amount of a claimant’s eco22 nomic loss may be fully recovered without limitation. 

23 (b) ADDITIONAL NONECONOMIC DAMAGES.—In any 

24 health care lawsuit, the amount of noneconomic damages 

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

2 the number of separate claims or actions brought with re3 spect to the same occurrence.

4 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC

5 DAMAGES.—In any health care lawsuit, an award for fu6 ture noneconomic damages shall not be discounted to 

7 present value. The jury shall not be informed about the 

8 maximum award for noneconomic damages. An award for 

9 noneconomic damages in excess of $250,000 shall be re10 duced either before the entry of judgment, or by amend11 ment of the judgment after entry of judgment, and such 

12 reduction shall be made before accounting for any other 

13 reduction in damages required by law. If separate awards 

14 are rendered for past and future noneconomic damages 

15 and the combined awards exceed $250,000, the future 

16 noneconomic damages shall be reduced first. 

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

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

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

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

21 damages allocated to such party in direct proportion to 

22 such party’s percentage of responsibility. A separate judg23 ment shall be rendered against each such party for the 

24 amount allocated to such party. For purposes of this sec-
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1 tion, the trier of fact shall determine the proportion of 

2 responsibility of each party for the claimant’s 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. 

10 SEC. 6. ADDITIONAL HEALTH BENEFITS. 

11 In any health care lawsuit, any party may introduce 

12 evidence of collateral source benefits. If a party elects to 

13 introduce such evidence, any opposing party may intro14 duce evidence of any amount paid or contributed or rea15 sonably likely to be paid or contributed in the future by 

16 or on behalf of the opposing party to secure the right to 

17 such collateral source benefits. No provider of collateral 

18 source benefits shall recover any amount against the 

19 claimant or receive any lien or credit against the claim20 ant’s recovery or be equitably or legally subrogated to the 

21 right of the claimant in a health care lawsuit. This section 

22 shall apply to any health care lawsuit that is settled as 

23 well as a health care lawsuit that is resolved by a fact 

24 finder. This section shall not apply to section 1862(b) (42 
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1 U.S.C. 1395y(b)) or section 1902(a)(25) (42 U.S.C. 

2 1396a(a)(25)) of the Social Security Act. 

3 SEC. 7. PUNITIVE DAMAGES. 

4 (a) IN GENERAL.—Punitive damages may, if other5 wise permitted by applicable State or Federal law, be 

6 awarded against any person in a health care lawsuit only 

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

8 person acted with malicious intent to injure the claimant, 

9 or that such person deliberately failed to avoid unneces10 sary injury that such person knew the claimant was sub11 stantially certain to suffer. In any health care lawsuit 

12 where no judgment for compensatory damages is rendered 

13 against such person, no punitive damages may be awarded 

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

15 punitive damages shall be included in a health care lawsuit 

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

17 amended pleading for punitive damages only upon a mo18 tion by the claimant and after a finding by the court, upon 

19 review of supporting and opposing affidavits or after a 

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

21 established by a substantial probability that the claimant 

22 will prevail on the claim for punitive damages. At the re23 quest of any party in a health care lawsuit, the trier of 

24 fact shall consider in a separate proceeding—
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1 (1) whether punitive damages are to be award2 ed and the amount of such award; and 

3 (2) the amount of punitive damages following a 

4 determination of punitive liability. 

5 If a separate proceeding is requested, evidence relevant 

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

7 applicable State law, shall be inadmissible in any pro8 ceeding to determine whether compensatory damages are 

9 to be awarded. 

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

12 (1) FACTORS CONSIDERED.—In determining 

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

14 health care lawsuit, the trier of fact shall consider 

15 only the following: 

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

17 conduct of such party; 

18 (B) the duration of the conduct or any 

19 concealment of it by such party; 

20 (C) the profitability of the conduct to such 

21 party; 

22 (D) the number of products sold or med23 ical procedures rendered for compensation, as 

24 the case may be, by such party, of the kind 
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1 causing the harm complained of by the claim2 ant; 

3 (E) any criminal penalties imposed on such 

4 party, as a result of the conduct complained of 

5 by the claimant; and

6 (F) the amount of any civil fines assessed 

7 against such party as a result of the conduct 

8 complained of by the claimant. 

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

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

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

12 the amount of economic damages awarded, which13 ever is greater. The jury shall not be informed of 

14 this limitation. 

15 (c) NO CIVIL MONETARY PENALTIES FOR PRODUCTS

16 IN COMPLIANCE WITH FDA STANDARDS.—

17 (1) PUNITIVE DAMAGES.—

18 (A) IN GENERAL.—In addition to the re19 quirements of subsection (a), punitive damages 

20 may not be awarded against the manufacturer 

21 or distributor of a medical product, or a sup22 plier of any component or raw material of such 

23 medical product, on the basis that the harm to 

24 the claimant was caused by the lack of safety 

25 or effectiveness of the particular medical prod-
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1 uct involved, unless the claimant demonstrates 

2 by clear and convincing evidence that—

3 (i) the manufacturer or distributor of 

4 the particular medical product, or supplier 

5 of any component or raw material of such 

6 medical product, failed to comply with a 

7 specific requirement of the Federal Food, 

8 Drug, and Cosmetic Act or the regulations 

9 promulgated thereunder; and 

10 (ii) the harm attributed to the par11 ticular medical product resulted from such 

12 failure to comply with such specific statu13 tory requirement or regulation. 

14 (B) RULE OF CONSTRUCTION.—Subpara15 graph (A) may not be construed as establishing 

16 the obligation of the Food and Drug Adminis17 tration to demonstrate affirmatively that a 

18 manufacturer, distributor, or supplier referred 

19 to in such subparagraph meets any of the con20 ditions described in such subparagraph. 

21 (2) LIABILITY OF HEALTH CARE PROVIDERS.—

22 A health care provider who prescribes a medical 

23 product approved or cleared by the Food and Drug 

24 Administration shall not be named as a party to a 

25 product liability lawsuit involving such product and 
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1 shall not be liable to a claimant in a class action 

2 lawsuit against the manufacturer, distributor, or 

3 seller of such product. 

4 SEC. 8. AUTHORIZATION OF PAYMENT OF FUTURE DAM5 AGES TO CLAIMANTS IN HEALTH CARE LAW6 SUITS. 

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

8 award of future damages, without reduction to present 

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

10 party with sufficient insurance or other assets to fund a 

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

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

13 the future damages be paid by periodic payments in ac14 cordance with the Uniform Periodic Payment of Judg15 ments Act promulgated by the National Conference of 

16 Commissioners on Uniform State Laws. 

17 (b) APPLICABILITY.—This section applies to all ac18 tions which have not been first set for trial or retrial be19 fore the effective date of this Act. 

20 SEC. 9. DEFINITIONS. 

21 In this Act: 

22 (1) ALTERNATIVE DISPUTE RESOLUTION SYS23 TEM; ADR.—The term ‘‘alternative dispute resolution 

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

25 for the resolution of health care lawsuits in a man-
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1 ner other than through a civil action brought in a 

2 State or Federal court. 

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

4 any person who brings a health care lawsuit, includ5 ing a person who asserts or claims a right to legal 

6 or equitable contribution, indemnity or subrogation, 

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

8 and any person on whose behalf such a claim is as9 serted or such an action is brought, whether de10 ceased, incompetent, or a minor. 

11 (3) COLLATERAL SOURCE BENEFITS.—The 

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

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

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

15 or other benefit provided or reasonably likely to be 

16 provided in the future to or on behalf of the claim17 ant, as a result of the injury or wrongful death, pur18 suant to—

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

20 income-disability, accident, or workers’ com21 pensation law; 

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

23 or accident insurance that provides health bene24 fits or income-disability coverage; 
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1 (C) any contract or agreement of any 

2 group, organization, partnership, or corporation 

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

4 medical, hospital, dental, or income disability 

5 benefits; and 

6 (D) any other publicly or privately funded 

7 program. 

8 (4) COMPENSATORY DAMAGES.—The term 

9 ‘‘compensatory damages’’ means objectively 

10 verifiable monetary losses incurred as a result of the 

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

12 provide, use, or pay for) health care services or med13 ical products, such as past and future medical ex14 penses, loss of past and future earnings, cost of ob15 taining domestic services, loss of employment, and 

16 loss of business or employment opportunities, dam17 ages for physical and emotional pain, suffering, in18 convenience, physical impairment, mental anguish, 

19 disfigurement, loss of enjoyment of life, loss of soci20 ety and companionship, loss of consortium (other 

21 than loss of domestic service), hedonic damages, in22 jury to reputation, and all other nonpecuniary losses 

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

24 damages’’ includes economic damages and non-
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1 economic damages, as such terms are defined in this 

2 section. 

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

4 fee’’ includes all compensation to any person or per5 sons which is payable only if a recovery is effected 

6 on behalf of one or more claimants.

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

8 damages’’ means objectively verifiable monetary 

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

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

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

12 past and future medical expenses, loss of past and 

13 future earnings, cost of obtaining domestic services, 

14 loss of employment, and loss of business or employ15 ment opportunities. 

16 (7) HEALTH CARE LAWSUIT.—The term 

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

18 claim concerning the provision of health care goods 

19 or services affecting interstate commerce, or any 

20 health care liability action concerning the provision 

21 of health care goods or services affecting interstate 

22 commerce, brought in a State or Federal court or 

23 pursuant to an alternative dispute resolution system, 

24 against a health care provider, a health care organi25 zation, or the manufacturer, distributor, supplier, 
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1 marketer, promoter, or seller of a medical product, 

2 regardless of the theory of liability on which the 

3 claim is based, or the number of claimants, plain4 tiffs, defendants, or other parties, or the number of 

5 claims or causes of action, in which the claimant al6 leges a health care liability claim. 

7 (8) HEALTH CARE LIABILITY ACTION.—The 

8 term ‘‘health care liability action’’ means a civil ac9 tion brought in a State or Federal Court or pursu10 ant to an alternative dispute resolution system, 

11 against a health care provider, a health care organi12 zation, or the manufacturer, distributor, supplier, 

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

14 regardless of the theory of liability on which the 

15 claim is based, or the number of plaintiffs, defend16 ants, or other parties, or the number of causes of ac17 tion, in which the claimant alleges a health care li18 ability claim. 

19 (9) HEALTH CARE LIABILITY CLAIM.—The 

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

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

22 against a health care provider, health care organiza23 tion, or the manufacturer, distributor, supplier, mar24 keter, promoter, or seller of a medical product, in25 cluding, but not limited to, third-party claims, cross-
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1 claims, counter-claims, or contribution claims, which 

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

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

4 care services or medical products, regardless of the 

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

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

7 the number of causes of action. 

8 (10) HEALTH CARE ORGANIZATION.—The term 

9 ‘‘health care organization’’ means any person or en10 tity which is obligated to provide or pay for health 

11 benefits under any health plan, including any person 

12 or entity acting under a contract or arrangement 

13 with a health care organization to provide or admin14 ister any health benefit. 

15 (11) HEALTH CARE PROVIDER.—The term 

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

17 required by State or Federal laws or regulations to 

18 be licensed, registered, or certified to provide health 

19 care services, and being either so licensed, reg20 istered, or certified, or exempted from such require21 ment by other statute or regulation. 

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

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

24 goods or services provided by a health care organiza25 tion, provider, or by any individual working under 
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1 the supervision of a health care provider, that relates 

2 to the diagnosis, prevention, or treatment of any 

3 human disease or impairment, or the assessment of 

4 the health of human beings. 

5 (13) MALICIOUS INTENT TO INJURE.—The 

6 term ‘‘malicious intent to injure’’ means inten7 tionally causing or attempting to cause physical in8 jury other than providing health care goods or serv9 ices. 

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

11 product’’ means a drug or device intended for hu12 mans, and the terms ‘‘drug’’ and ‘‘device’’ have the 

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

14 201(h) of the Federal Food, Drug and Cosmetic Act 

15 (21 U.S.C. 321), respectively, including any compo16 nent or raw material used therein, but excluding 

17 health care services. 

18 (15) NONECONOMIC DAMAGES.—The term 

19 ‘‘noneconomic damages’’ means damages for phys20 ical and emotional pain, suffering, inconvenience, 

21 physical impairment, mental anguish, disfigurement, 

22 loss of enjoyment of life, loss of society and compan23 ionship, loss of consortium (other than loss of do24 mestic service), hedonic damages, injury to reputa-
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1 tion, and all other nonpecuniary losses of any kind 

2 or nature. 

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

4 damages’’ means damages awarded, for the purpose 

5 of punishment or deterrence, and not solely for com6 pensatory purposes, against a health care provider, 

7 health care organization, or a manufacturer, dis8 tributor, or supplier of a medical product. Punitive 

9 damages are neither economic nor noneconomic 

10 damages. 

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

12 the net sum recovered after deducting any disburse13 ments or costs incurred in connection with prosecu14 tion or settlement of the claim, including all costs 

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

16 incurred by the plaintiff and the attorneys’ office 

17 overhead costs or charges for legal services are not 

18 deductible disbursements or costs for such purpose. 

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

20 the several States, the District of Columbia, the 

21 Commonwealth of Puerto Rico, the Virgin Islands, 

22 Guam, American Samoa, the Northern Mariana Is23 lands, the Trust Territory of the Pacific Islands, and 

24 any other territory or possession of the United 

25 States, or any political subdivision thereof. 
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1 SEC. 10. EFFECT ON OTHER LAWS. 

2 (a) VACCINE INJURY.—

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

4 Health Service Act establishes a Federal rule of law

5 applicable to a civil action brought for a vaccine-re6 lated injury or death—

7 (A) this Act does not affect the application 

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

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

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

11 shall not apply to such action. 

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

13 brought for a vaccine-related injury or death to 

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

15 Public Health Service Act does not apply, then this 

16 Act or otherwise applicable law (as determined 

17 under this Act) will apply to such aspect of such ac18 tion. 

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

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

21 any defense available to a defendant in a health care law22 suit or action under any other provision of Federal law. 

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

24 RIGHTS. 

25 (a) HEALTH CARE LAWSUITS.—The provisions gov26 erning health care lawsuits set forth in this Act preempt, 
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1 subject to subsections (b) and (c), State law to the extent 

2 that State law prevents the application of any provisions 

3 of law established by or under this Act. The provisions 

4 governing health care lawsuits set forth in this Act super5 sede chapter 171 of title 28, United States Code, to the 

6 extent that such chapter—

7 (1) provides for a greater amount of damages 

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

9 care lawsuit may be commenced, or a reduced appli10 cability or scope of periodic payment of future dam11 ages, than provided in this Act; or 

12 (2) prohibits the introduction of evidence re13 garding collateral source benefits, or mandates or 

14 permits subrogation or a lien on collateral source 

15 benefits. 

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

17 that is not governed by any provision of law established 

18 by or under this Act (including State standards of neg19 ligence) shall be governed by otherwise applicable State 

20 or Federal law. This Act does not preempt or supersede 

21 any law that imposes greater protections (such as a short22 er statute of limitations) for health care providers and 

23 health care organizations from liability, loss, or damages 

24 than those provided by this Act. 
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1 (c) STATE FLEXIBILITY.—No provision of this Act 

2 shall be construed to preempt—

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

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

5 specifies a particular monetary amount of compen6 satory or punitive damages (or the total amount of 

7 damages) that may be awarded in a health care law8 suit, regardless of whether such monetary amount is 

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

10 notwithstanding section 4(a); or 

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

12 care lawsuit under any other provision of State or 

13 Federal law. 

14 SEC. 12. APPLICABILITY; EFFECTIVE DATE. 

15 This Act shall apply to any health care lawsuit 

16 brought in a Federal or State court, or subject to an alter17 native dispute resolution system, that is initiated on or 

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

19 any health care lawsuit arising from an injury occurring 

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

21 governed by the applicable statute of limitations provisions 

22 in effect at the time the injury occurred. 

23 SEC. 13. SENSE OF CONGRESS. 

24 It is the sense of Congress that a health insurer 

25 should be liable for damages for harm caused when it 
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1 makes a decision as to what care is medically necessary 

2 and appropriate.

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