I

103D CONGRESS

1ST SESSION H. R. 1989

To provide for medical injury compensation reform for health care services

furnished using funds provided under certain Federal programs or under

group health plans, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MAY 5, 1993

Mr. MCMILLAN (for himself, Mr. TAYLOR of North Carolina, Mr. SANTORUM,

Mr. DELAY, Mr. GINGRICH, Mr. HASTERT, Mr. HOBSON, Mr. KASICH,

Mr. KOLBE, Mr. PAXON, Mrs. ROUKEMA, Mr. WALKER, Mr.

BALLENGER, Mr. BLILEY, Mr. DREIER, Mr. GOSS, Mr. GRANDY, Mr.

SOLOMON, Mr. CASTLE, Mr. SUNDQUIST, and Mr. SAM JOHNSON of

Texas) introduced the following bill; which was referred jointly to the

Committees on the Judiciary, Ways and Means, and Energy and Commerce

A BILL

To provide for medical injury compensation reform for health

care services furnished using funds provided under certain Federal programs or under group health plans, and

for other purposes.

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 ‘‘Medical Injury Com5 pensation Fairness Act of 1993’’.
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1 SEC. 2. FINDINGS AND PURPOSE.

2 (a) FINDINGS.—Congress finds that—

3 (1) health care expenditures are escalating be4 yond the ability of Americans to afford them, having

5 increased from 5.9 percent of gross national product

6 in 1965 to over 12 percent in 1990;

7 (2) the medical injury compensation system

8 currently in effect in the United States is ineffectual

9 in compensating injured persons, has very high ad10 ministrative costs, and contributes to the high level

11 of unnecessary spending on health care;

12 (3) as many as 15 out of 16 persons injured

13 due to medical negligence never get compensation

14 through the current medical malpractice system;

15 (4) malpractice insurance premiums, only 40

16 percent of which ever reach injured persons as com17 pensation for their injuries, increased at an average

18 rate of 18.3 percent per year from 1982 to 1988;

19 (5) unnecessary defensive medical practices,

20 rendered by physicians in anticipation of juries’ ret21 rospective application of poorly specified standards

22 of care to their diagnostic and treatment choices,

23 add billions of dollars to the Nation’s health care

24 bill;

25 (6) the law governing medical malpractice oper26 ates to limit access to health care by driving costs
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1 to unaffordable levels and by discouraging physicians

2 from treating high-risk patients and from practicing

3 in high-risk areas and specialties; and

4 (7) the Federal Government, which directly fi5 nances about 30 percent of the health care

6 consumed in the United States and subsidizes a sub7 stantial portion of private health insurance, has a le8 gitimate financial interest in addressing the prob9 lems associated with the current medical malpractice

10 system.

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

12 (1) encourage the efficient resolution of medical

13 injury claims, using alternative methods of dispute

14 resolution;

15 (2) ensure fairness in the awards granted in

16 medical injury cases;

17 (3) reduce inappropriate, unnecessary or defen18 sive medical practices;

19 (4) reduce public and private health care costs;

20 (5) improve access to health care; and

21 (6) facilitate informed, responsible choices in

22 the selection of alternative methods of dispute reso23 lution and in the specification of appropriate stand24 ards for medical practice.
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1 SEC. 3. MANDATORY RESOLUTION OF CLAIMS THROUGH

2 CERTIFIED DISPUTE RESOLUTION SYSTEMS.

3 (a) APPLICATION TO CLAIMS ARISING FROM SERV4 ICES FINANCED THROUGH CERTAIN FEDERAL PRO5 GRAMS.—

6 (1) IN GENERAL.—Each individual or entity

7 providing or receiving health care services for which

8 payment may be made in whole or in part with

9 funds provided under a Federal program described

10 in paragraph (2) shall be deemed to have entered

11 into an agreement—

12 (A) to resolve any medical malpractice li13 ability claim arising from the provision of (or

14 failure to provide) such services through a State

15 dispute resolution system that is certified by

16 the Secretary under section 4(b) (or the alter17 native Federal ADR system applicable under

18 section 4(c)); and

19 (B) to bring any medical malpractice liabil20 ity action that arises from a claim resolved

21 through such a system only in accordance with

22 the procedures described in section 5.

23 (2) FEDERAL PROGRAMS DESCRIBED.—The

24 Federal programs described in this paragraph are as

25 follows:
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1 (A) The health insurance program under

2 title XVIII of the Social Security Act.

3 (B) A State plan for medical assistance

4 under title XIX of the Social Security Act.

5 (C) The health benefit program for Fed6 eral employees under chapter 89 of title 5,

7 United States Code.

8 (D) Any program for the provision of hos9 pital care and medical services by the Depart10 ment of Veterans Affairs under chapter 17 of

11 title 38, United States Code.

12 (E) A program for the provision of services

13 at facilities of the Indian Health Service or at

14 other facilities under the Indian Health Care

15 Improvement Act.

16 (F) The program authorized under sec17 tions 1079 and 1086 of title 10, United States

18 Code.

19 (G) The program for providing medical

20 care at facilities of the uniformed services under

21 title 10, United States Code.

22 (b) APPLICATION TO SERVICES FURNISHED UNDER

23 EMPLOYER-SPONSORED HEALTH PLANS.—
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1 (1) RESTRICTION ON DEDUCTIBILITY OF BUSI2 NESS EXPENSES.—Section 162 of the Internal Reve3 nue Code of 1986 is amended—

4 (A) by redesignating subsection (m) as

5 subsection (n); and

6 (B) by inserting after subsection (l) the

7 following new subsection:

8 ‘‘(m) CONDITIONING DEDUCTIBILITY OF HEALTH

9 INSURANCE EXPENSES ON APPLICATION OF ALTER10 NATIVE DISPUTE RESOLUTION PROCEDURES.—Notwith11 standing any other provision of this Code, no deduction

12 may be taken under this section (including a deduction

13 taken under subsection (l)) for expenses paid for insurance

14 which constitutes medical care unless there is in effect an

15 agreement described in section 3(a) of the Medical Injury

16 Compensation Fairness Act of 1993 with respect to the

17 resolution of medical malpractice claims arising from the

18 provision of (or failure to provide) such medical care.’’.

19 (2) REQUIREMENT FOR EXEMPTION FROM EX20 CISE TAX FOR NONCONFORMING PLANS OF TAX-EX21 EMPT ORGANIZATIONS.—Section 5000(c) of the In22 ternal Revenue Code of 1986 is amended by striking

23 the period at the end and inserting the following: ‘‘,

24 or (in the case of an employee or an employer orga25 nization exempt from taxation under subtitle A) does
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1 not have in effect an agreement described in section

2 3(a) of the Medical Injury Compensation Fairness

3 Act of 1993 with respect to the resolution of medical

4 malpractice claims arising from the provision of (or

5 failure to provide) items and services for which pay6 ment may be made under the plan.’’.

7 (3) EFFECTIVE DATE.—The amendments made

8 by this subsection shall apply to taxable years begin9 ning after December 1994.

10 (c) WAIVER OF AGREEMENTS NOT PERMITTED.—An

11 individual or entity may not waive an agreement referred

12 to in subsection (a) and may seek the enforcement of the

13 agreement in any court of competent jurisdiction.

14 SEC. 4. REQUIREMENTS FOR DISPUTE RESOLUTION PRO15 GRAMS.

16 (a) IN GENERAL.—A State’s alternative dispute reso17 lution system meets the requirements of this section if the

18 system—

19 (1) provides that the standards described in

20 section 6 shall apply to all claims resolved under the

21 system;

22 (2) requires that a written opinion resolving the

23 dispute be issued not later than 6 months after the

24 date by which each party against whom the claim is

25 filed has received notice of the claim (other than in
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1 exceptional cases for which a longer period is re2 quired for the issuance of such an opinion), and that

3 the opinion contain—

4 (A) findings of fact relating to the dispute,

5 and

6 (B) a description of the costs incurred in

7 resolving the dispute under the system (includ8 ing any fees paid to the individuals hearing and

9 resolving the claim), together with an appro10 priate assessment of the costs against any of

11 the parties;

12 (3) requires individuals who hear and resolve

13 claims under the system to meet such qualifications

14 as the State may require (in accordance with regula15 tions of the Secretary);

16 (4) is approved by the State or by local govern17 ments in the State;

18 (5) with respect to a State system that consists

19 of multiple dispute resolution procedures—

20 (A) permits the parties to a dispute to se21 lect the procedure to be used for the resolution

22 of the dispute under the system, and

23 (B) if the parties do not agree on the pro24 cedure to be used for the resolution of the dis-
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1 pute, assigns a particular procedure to the par2 ties;

3 (6) provides for the transmittal to the State

4 agency responsible for monitoring or disciplining

5 health care professionals and health care providers

6 of any findings made under the system that such a

7 professional or provider committed malpractice, un8 less, during the 90-day period beginning on the date

9 the system resolves the claim against the profes10 sional or provider, the professional or provider

11 brings a medical malpractice liability action contest12 ing the decision made under the system; and

13 (7) provides for the regular transmittal to the

14 Administrator for Health Care Policy and Research

15 of information on disputes resolved under the sys16 tem, in a manner that assures that the identity of

17 the parties to a dispute shall not be revealed.

18 (b) CERTIFICATION OF STATE SYSTEMS.—

19 (1) IN GENERAL.—Not later than October 1 of

20 each year (beginning with 1994), the Secretary, in

21 consultation with the Attorney General, shall deter22 mine whether a State’s alternative dispute resolution

23 system meets the requirements of subsection (a) for

24 the following calendar year.
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1 (2) BASIS FOR CERTIFICATION.—The Secretary

2 shall certify a State’s alternative dispute resolution

3 system under this subsection for a calendar year if

4 the Secretary determines under paragraph (1) that

5 the system meets the requirements of subsection (a).

6 (c) APPLICABILITY OF ALTERNATIVE FEDERAL SYS7 TEM.—

8 (1) ESTABLISHMENT AND APPLICABILITY.—

9 Not later than October 1, 1994, the Secretary, in

10 consultation with the Attorney General, shall estab11 lish by rule an alternative Federal ADR system for

12 the resolution of medical malpractice liability claims

13 during a calendar year in States that do not have

14 in effect an alternative dispute resolution system

15 certified under subsection (b) for the year.

16 (2) REQUIREMENTS FOR SYSTEM.—Under the

17 alternative Federal ADR system established under

18 paragraph (1)—

19 (A) paragraphs (2), (6), and (7) of sub20 section (a) shall apply to claims brought under

21 the system;

22 (B) claims brought under the system shall

23 be heard and resolved by arbitrators appointed

24 by the Secretary in consultation with the Attor25 ney General; and
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1 (C) with respect to a State in which the

2 system is in effect, the Secretary may (at the

3 State’s request) modify the system to take into

4 account the existence of dispute resolution pro5 cedures in the State that affect the resolution

6 of medical malpractice liability claims.

7 SEC. 5. STANDARDS FOR MEDICAL MALPRACTICE LIABIL8 ITY ACTIONS BROUGHT AFTER RESOLUTION

9 UNDER ADR SYSTEM.

10 (a) NO ACTION PERMITTED UNTIL RESOLUTION OF

11 CLAIM UNDER ADR SYSTEM.—

12 (1) IN GENERAL.—If a medical malpractice li13 ability claim is subject to an agreement under sec14 tion 3(a), no medical malpractice liability action that

15 is based on the claim may be brought in any court

16 until the claim is initially resolved under an alter17 native dispute resolution system in accordance with

18 this Act.

19 (2) INITIAL RESOLUTION OF CLAIMS UNDER

20 ADR.—For purposes of paragraph (1), an action is

21 ‘‘initially resolved’’ under an alternative dispute res22 olution system if—

23 (A) the ADR reaches a decision on wheth24 er the defendant is liable to the plaintiff for

25 damages; and
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1 (B) if the ADR determines that the de2 fendant is liable, the ADR reaches a decision on

3 the amount of damages assessed against the de4 fendant.

5 (b) PROCEDURES FOR FILING ACTIONS.—

6 (1) NOTICE OF INTENT TO CONTEST DECI7 SION.—Not later than 60 days after a decision is is8 sued with respect to a claim under an alternative

9 dispute resolution system described in section 4,

10 each party affected by the decision shall submit a

11 sealed statement to a court of competent jurisdiction

12 indicating whether or not the party intends to con13 test the decision.

14 (2) DEADLINE FOR FILING ACTION.—No civil

15 action arising from a claim that is subject to alter16 native dispute resolution under this Act may be

17 brought unless the action is filed in a court of com18 petent jurisdiction not later than 90 days after the

19 decision resolving the medical malpractice liability

20 claim that is the subject of the action is issued

21 under the applicable alternative dispute resolution

22 system.

23 (3) MANDATORY PRE-TRIAL SETTLEMENT CON24 FERENCE.—
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1 (A) IN GENERAL.—Before the beginning of

2 the trial phase of any medical malpractice li3 ability action arising from a claim that is sub4 ject to alternative dispute resolution under this

5 Act, the parties shall attend a conference called

6 by the court for purposes of determining wheth7 er grounds exist upon which the parties may

8 negotiate a settlement for the action.

9 (B) REQUIRING PARTIES TO SUBMIT SET10 TLEMENT OFFERS.—At the conference called

11 pursuant to subparagraph (A), each party to a

12 medical malpractice liability action shall present

13 an offer of settlement for the action.

14 (4) COURT OF COMPETENT JURISDICTION.—

15 For purposes of this subsection, the term ‘‘court of

16 competent jurisdiction’’ means—

17 (A) with respect to actions filed in a State

18 court, the appropriate State trial court; and

19 (B) with respect to actions filed in a Fed20 eral court, the appropriate United States dis21 trict court.

22 (c) EFFECT OF ADR DECISION ON BURDEN OF

23 PROOF IN SUBSEQUENT ACTION.—In any action arising

24 from a claim that is subject to an agreement under section

25 3(a), the trier of fact shall uphold the decision made under
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1 the previous alternative dispute resolution system with re2 spect to the claim unless the party contesting the decision

3 proves by a preponderance of the evidence that the deci4 sion was incorrect.

5 (d) REQUIRING PARTY CONTESTING ADR RULING

6 TO PAY ATTORNEY’S FEES AND OTHER COSTS.—

7 (1) IN GENERAL.—The court in a medical mal8 practice liability action shall require the party that

9 (pursuant to subsection (b)(1)) contested the ruling

10 of the alternative dispute resolution system with re11 spect to the medical malpractice liability claim that

12 is the subject of the action to pay to the opposing

13 party the costs incurred by the opposing party under

14 the action, including attorney’s fees, fees paid to ex15 pert witnesses, and other litigation expenses (but not

16 including court costs, filing fees, or other expenses

17 paid directly by the party to the court, or any fees

18 or costs associated with the resolution of the claim

19 under the alternative dispute resolution system), but

20 only if—

21 (A) in the case of an action in which the

22 party that contested the ruling is the plaintiff,

23 the amount of damages awarded to the party

24 under the action does not exceed the amount of
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1 damages awarded to the party under the ADR

2 system by at least 10 percent; and

3 (B) in the case of an action in which the

4 party that contested the ruling is the defendant,

5 the amount of damages assessed against the

6 party under the action is not at least 10 per7 cent less than the amount of damages assessed

8 under the ADR system.

9 (2) EXCEPTIONS.—Paragraph (1) shall not

10 apply if—

11 (A) the party contesting the ruling made

12 under the previous alternative dispute resolu13 tion system shows that—

14 (i) the ruling was procured by corrup15 tion, fraud, or undue means,

16 (ii) there was partiality or corruption

17 under the system,

18 (iii) there was other misconduct under

19 the system that materially prejudiced the

20 party’s rights, or

21 (iv) the ruling was based on an error

22 of law;

23 (B) the party contesting the ruling made

24 under the previous alternative dispute resolu25 tion system presents new evidence before the
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1 trier of fact that was not available for presen2 tation under the ADR system;

3 (C) the medical malpractice liability action

4 raised a novel issue of law; or

5 (D) the court finds that the application of

6 such paragraph to a party would constitute an

7 undue hardship, and issues an order waiving or

8 modifying the application of such paragraph

9 that specifies the grounds for the court’s deci10 sion.

11 (e) LEGAL EFFECT OF UNCONTESTED ADR DECI12 SION.—The decision reached under an alternative dispute

13 resolution system shall, for purposes of enforcement by a

14 court of competent jurisdiction, have the same status in

15 the court as the verdict of an action adjudicated in a State

16 or Federal trial court. The previous sentence shall not

17 apply to a decision that is contested by a party affected

18 by the decision pursuant to subsection (b)(1).

19 (f) APPLICABILITY OF STANDARDS.—The standards

20 described in section 5 shall apply to any action arising

21 from a claim that is subject to an agreement under section

22 3(a) in the same manner as such standards apply to the

23 resolution of such claims.
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1 SEC. 6. STANDARDS FOR THE RESOLUTION OF CLAIMS AND

2 ACTIONS.

3 (a) APPLICABILITY.—This section shall apply with

4 respect to medical malpractice liability claims for which

5 an agreement described in section 3(a) is in effect.

6 (b) STATUTE OF LIMITATIONS.—

7 (1) IN GENERAL.—No claim may be brought

8 after the expiration of the 2-year period that begins

9 on the date the alleged injury that is the subject of

10 the claim should reasonably have been discovered,

11 but in no event after the expiration of the 4-year pe12 riod that begins on the date the alleged injury oc13 curred.

14 (2) EXCEPTION FOR MINORS.—In the case of

15 an alleged injury suffered by a minor who has not

16 attained 6 years of age, no claim may be brought

17 after the expiration of the 2-year period that begins

18 on the date the alleged injury that is the subject of

19 the action should reasonably have been discovered,

20 but in no event after the date on which the minor

21 attains 10 years of age.

22 (c) CALCULATION AND PAYMENT OF DAMAGES.—

23 (1) LIMITATION ON NONECONOMIC DAMAGES.—

24 The total amount of noneconomic damages that may

25 be awarded to a claimant and the members of the

26 claimant’s family for losses resulting from the injury
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1 which is the subject of a claim may not exceed

2 $250,000, regardless of the number of parties

3 against whom the claim is brought or the number of

4 claims brought with respect to the injury.

5 (2) TREATMENT OF PUNITIVE DAMAGES.—

6 (A) LIMITATION ON AMOUNT.—The total

7 amount of punitive damages that may be im8 posed under a claim may not exceed twice the

9 total of the damages awarded to the claimant

10 and the members of the claimant’s family.

11 (B) PAYMENTS TO STATE FOR MEDICAL

12 QUALITY ASSURANCE ACTIVITIES.—

13 (i) IN GENERAL.—Any punitive dam14 ages imposed under a claim shall be paid

15 to the State in which the claim is brought.

16 (ii) ACTIVITIES DESCRIBED.—A State

17 shall use amount paid pursuant to clause

18 (i) to carry out activities to assure the

19 safety and quality of health care services

20 provided in the State, including (but not

21 limited to)—

22 (I) licensing or certifying health

23 care professionals and health care

24 providers in the State;
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1 (II) operating alternative dispute

2 resolution systems;

3 (III) carrying out public edu4 cation programs relating to medical

5 malpractice and the availability of al6 ternative dispute resolution systems in

7 the State; and

8 (IV) carrying out programs to re9 duce malpractice-related costs for re10 tired providers or other providers vol11 unteering to provide services in medi12 cally underserved areas.

13 (iii) MAINTENANCE OF EFFORT.—A

14 State shall use any amounts paid pursuant

15 to clause (i) to supplement and not to re16 place amounts spent by the State for the

17 activities described in clause (ii).

18 (3) PERIODIC PAYMENTS FOR FUTURE

19 LOSSES.—If more than $100,000 in damages for ex20 penses to be incurred in the future is awarded to the

21 claimant, the party against whom the damages are

22 awarded shall provide for payment for such damages

23 on a periodic basis determined appropriate by the al24 ternative dispute resolution system (based upon pro25 jections of when such expenses are likely to be in-
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1 curred), unless it is determined that it is not in the

2 claimant’s best interests to receive payments for

3 such damages on such a periodic basis.

4 (4) MANDATORY OFFSETS FOR DAMAGES PAID

5 BY A COLLATERAL SOURCE.—

6 (A) IN GENERAL.—The total amount of

7 damages received by a claimant shall be re8 duced (in accordance with subparagraph (B))

9 by any other payment that has been or will be

10 made to compensate the claimant for the injury

11 that was the subject of the claim, including

12 payment under—

13 (i) Federal or State disability or sick14 ness programs;

15 (ii) Federal, State, or private health

16 insurance programs;

17 (iii) private disability insurance pro18 grams;

19 (iv) employer wage continuation pro20 grams; and

21 (v) any other source of payment in22 tended to compensate the claim for such

23 injury.

24 (B) AMOUNT OF REDUCTION.—The

25 amount by which an award of damages to a
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1 claimant shall be reduced under subparagraph

2 (A) shall be—

3 (i) the total amount of any payments

4 (other than such award) that have been

5 made or that will be made to the claimant

6 to compensate the claimant for the injury

7 that was the subject of the claim; minus

8 (ii) the amount paid by the claimant

9 (or by the spouse, parent, or legal guard10 ian of the claimant) to secure the pay11 ments described in clause (i).

12 (d) LIMITATION ON ATTORNEY’S FEES.—If the

13 claimant has entered into an agreement with the claim14 ant’s attorney to pay the attorney’s fees on a contingency

15 basis, the attorney’s fees for the claim may not exceed—

16 (1) 25 percent of the first $150,000 of any

17 award or settlement paid to the claimant; or

18 (2) 15 percent of any additional amounts paid

19 to the claimant.

20 (e) JOINT AND SEVERAL LIABILITY.—The liability of

21 each party against whom a claim is filed shall be several

22 only and shall not be joint, and each party shall be liable

23 only for the amount of damages allocated to the party in

24 direct proportion to the party’s percentage of responsibil25 ity (as determined by the trier of fact).
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1 (f) UNIFORM STANDARD FOR DETERMINING NEG2 LIGENCE.—A party against whom a claim is filed may not

3 be found to have acted negligently unless the party’s con4 duct at the time of providing the health care services that

5 are the subject of the claim was not reasonable.

6 (g) APPLICATION OF MEDICAL PRACTICE GUIDE7 LINES.—

8 (1) USE OF GUIDELINES AS AFFIRMATIVE DE9 FENSE.—In the resolution of any claim, it shall be

10 a complete defense to any allegation that a party

11 against whom the claim is filed was negligent that,

12 in the provision of (or the failure to provide) the

13 services that are the subject of the claim, the party

14 followed the appropriate practice guideline.

15 (2) RESTRICTION ON GUIDELINES CONSIDERED

16 APPROPRIATE.—

17 (A) GUIDELINES SANCTIONED BY SEC18 RETARY.—For purposes of paragraph (1), a

19 practice guideline may not be considered appro20 priate with respect to claims during a year un21 less the Secretary has sanctioned the use of the

22 guideline for purposes of an affirmative defense

23 to claims brought during the year in accordance

24 with subparagraph (B) or (C).
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1 (B) PROCESS FOR SANCTIONING GUIDE2 LINES.—Not less frequently than October 1 of

3 each year (beginning with 1994), the Secretary,

4 shall review the practice guidelines and stand5 ards developed by the Administrator for Health

6 Care Policy and Research pursuant to section

7 1142 of the Social Security Act, and shall sanc8 tion those guidelines which the Secretary con9 siders appropriate for purposes of an affirma10 tive defense to claims brought during the next

11 calendar year as appropriate practice guidelines

12 for purposes of paragraph (1).

13 (C) USE OF STATE GUIDELINES.—Upon

14 the application of a State, the Secretary may

15 sanction practice guidelines selected by the

16 State for purposes of an affirmative defense to

17 claims brought in the State as appropriate

18 practice guidelines for purposes of paragraph

19 (1) if the guidelines meet such requirements as

20 the Secretary may impose.

21 (3) PROHIBITING APPLICATION OF FAILURE TO

22 FOLLOW GUIDELINES AS PRIMA FACIE EVIDENCE OF

23 NEGLIGENCE.—No claimant may be deemed to have

24 presented prima facie evidence that a party against

25 whom the claim is filed was negligent solely by show-
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1 ing that the party failed to follow the appropriate

2 practice guideline.

3 (h) SPECIAL PROVISION FOR CERTAIN OBSTETRIC

4 SERVICES.—

5 (1) IMPOSITION OF HIGHER STANDARD OF

6 PROOF.—

7 (A) IN GENERAL.—In the case of a claim

8 relating to services provided during labor or the

9 delivery of a baby, if the party against whom

10 the claim is filed did not previously treat the

11 claimant for the pregnancy, the trier of fact

12 may not find that the party committed mal13 practice and may not assess damages against

14 the party unless the malpractice is proven by

15 clear and convincing evidence.

16 (B) APPLICABILITY TO GROUP PRACTICES

17 OR AGREEMENTS AMONG PROVIDERS.—For

18 purposes of subparagraph (A), a party shall be

19 considered to have previously treated an indi20 vidual for a pregnancy if the party is a member

21 of a group practice whose members previously

22 treated the claimant for the pregnancy or is

23 providing services to the claimant during labor

24 or the delivery of a baby pursuant to an agree25 ment with another party.
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1 (2) CLEAR AND CONVINCING EVIDENCE DE2 FINED.—In paragraph (1), the term ‘‘clear and con3 vincing evidence’’ is that measure or degree of proof

4 that will produce in the mind of the trier of fact a

5 firm belief or conviction as to the truth of the allega6 tions sought to be established, except that such

7 measure or degree of proof is more than that re8 quired under preponderance of the evidence, but less

9 than that required for proof beyond a reasonable

10 doubt.

11 (i) PREEMPTION.—

12 (1) IN GENERAL.—This section supersedes any

13 State law only to the extent that State law—

14 (A) permits the recovery of a greater

15 amount of damages by a plaintiff;

16 (B) permits the collection of a greater

17 amount of attorneys’ fees by a plaintiff’s attor18 ney;

19 (C) establishes a longer period during

20 which a medical malpractice liability claim may

21 be initiated; or

22 (D) establishes a stricter standard for de23 termining whether a defendant was negligent or

24 for determining the liability of defendants de-
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1 scribed in subsection (h) in actions described in

2 such subsection.

3 (2) EFFECT ON SOVEREIGN IMMUNITY AND

4 CHOICE OF LAW OR VENUE.—Nothing in paragraph

5 (1) shall be construed to—

6 (A) waive or affect any defense of sov7 ereign immunity asserted by any State under

8 any provision of law;

9 (B) waive or affect any defense of sov10 ereign immunity asserted by the United States;

11 (C) affect the applicability of any provision

12 of the Foreign Sovereign Immunities Act of

13 1976;

14 (D) preempt State choice-of-law rules with

15 respect to claims brought by a foreign nation or

16 a citizen of a foreign nation; or

17 (E) affect the right of any court to trans18 fer venue or to apply the law of a foreign nation

19 or to dismiss a claim of a foreign nation or of

20 a citizen of a foreign nation on the ground of

21 inconvenient forum.

22 SEC. 7. DEFINITIONS.

23 As used in this Act:

24 (1) ALTERNATIVE DISPUTE RESOLUTION SYS25 TEM; ADR.—The term ‘‘alternative dispute resolution
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1 system’’ or ‘‘ADR’’ means a system established by

2 a State that provides for the resolution of medical

3 malpractice liability claims in a manner other than

4 through medical malpractice liability actions.

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

6 any person who alleges a medical malpractice liabil7 ity claim, or, in the case of an individual who is de8 ceased, incompetent, or a minor, the person on

9 whose behalf such a claim is alleged.

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

11 damages’’ means damages paid to compensate an in12 dividual for losses for hospital and other medical ex13 penses, lost wages, lost employment, and other pecu14 niary losses.

15 (4) HEALTH CARE PROFESSIONAL.—The term

16 ‘‘health care professional’’ means any individual who

17 provides health care services in a State and who is

18 required by State law or regulation to be licensed or

19 certified by the State to provide such services in the

20 State.

21 (5) HEALTH CARE PROVIDER.—The term

22 ‘‘health care provider’’ means any organization or

23 institution that is engaged in the delivery of health

24 care services in a State and that is required by State

25 law or regulation to be licensed or certified by the
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1 State to engage in the delivery of such services in

2 the State.

3 (6) INJURY.—The term ‘‘injury’’ means any ill4 ness, disease, or other harm that is the subject of

5 a medical malpractice liability action or claim.

6 (7) MEDICAL MALPRACTICE LIABILITY AC7 TION.—The term ‘‘medical malpractice liability ac8 tion’’ means a civil action (other than an action in

9 which the plaintiff’s sole allegation is an allegation

10 of an intentional tort) brought in a State or Federal

11 court against a health care provider or health care

12 professional (regardless of the theory of liability on

13 which the action is based) in which the plaintiff al14 leges a medical malpractice liability claim.

15 (8) MEDICAL MALPRACTICE LIABILITY

16 CLAIM.—The term ‘‘medical malpractice liability

17 claim’’ means a claim in which the claimant alleges

18 that injury was caused by the provision of (or the

19 failure to provide) health care services.

20 (9) MEDICAL PRODUCT.—The term ‘‘medical

21 product’’ means a device (as defined in section

22 201(h) of the Federal Food, Drug, and Cosmetic

23 Act) or a drug (as defined in section 201(g)(1) of

24 the Federal Food, Drug, and Cosmetic Act).
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1 (10) NONECONOMIC DAMAGES.—The term

2 ‘‘noneconomic damages’’ means damages paid to

3 compensate an individual for losses for physical and

4 emotional pain, suffering, inconvenience, physical

5 impairment, mental anguish, disfigurement, loss of

6 enjoyment of life, loss of consortium, and other

7 nonpecuniary losses, but does not include punitive

8 damages.

9 (11) SECRETARY.—The term ‘‘Secretary’’

10 means the Secretary of Health and Human Services.

11 (12) STATE.—The term ‘‘State’’ means each of

12 the several States, the District of Columbia, the

13 Commonwealth of Puerto Rico, the Virgin Islands,

14 Guam, and American Samoa.

15 SEC. 8. EFFECTIVE DATE.

16 This Act shall apply to claims accruing on or after

17 January 1, 1994.

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