Protecting Access to Care Act of 2017

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. Short title; table of contents (a) Short title This Act may be cited as the Protecting Access to Care Act of 2017 (b) Table of contents The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Encouraging speedy resolution of claims. Sec. 3. Compensating patient injury. Sec. 4. Maximizing patient recovery. Sec. 5. Authorization of payment of future damages to claimants in health care lawsuits. Sec. 6. Product liability for health care providers. Sec. 7. Definitions. Sec. 8. Effect on other laws. Sec. 9. Rules of construction. Sec. 10. Effective date. 2. Encouraging speedy resolution of claims (a) Statute of limitations The time for the commencement of a health care lawsuit shall be 3 years after the date of injury or 1 year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of a health care lawsuit exceed 3 years after the date of injury unless tolled for any of the following— (1) upon proof of fraud; (2) intentional concealment; or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within 3 years from the date of the injury except that actions by a minor under the full age of 6 years shall be commenced within 3 years of injury, or 1 year after the injury is discovered, or through the use of reasonable diligence should have been discovered, or prior to the minor’s 8th birthday, whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which a parent or guardian and a health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor. (b) State flexibility No provision of subsection (a) shall be construed to preempt any state law (whether effective before, on, or after the date of the enactment of this Act) that— (1) specifies a time period of less than 3 years after the date of injury or less than 1 year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, for the filing of a health care lawsuit; (2) that specifies a different time period for the filing of lawsuits by a minor; (3) that triggers the time period based on the date of the alleged negligence; or (4) establishes a statute of repose for the filing of health care lawsuit. 3. Compensating patient injury (a) Unlimited amount of damages for actual economic losses in health care lawsuits In any health care lawsuit, nothing in this Act shall limit a claimant’s recovery of the full amount of the available economic damages, notwithstanding the limitation in subsection (b). (b) Additional noneconomic damages In any health care lawsuit, the amount of noneconomic damages, if available, shall not exceed $250,000, regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought with respect to the same injury. (c) No discount of award for noneconomic damages For purposes of applying the limitation in subsection (b), future noneconomic damages shall not be discounted to present value. The jury shall not be informed about the maximum award for noneconomic damages. An award for noneconomic damages in excess of $250,000 shall be reduced either before the entry of judgment, or by amendment of the judgment after entry of judgment, and such reduction shall be made before accounting for any other reduction in damages required by law. If separate awards are rendered for past and future noneconomic damages and the combined awards exceed $250,000, the future noneconomic damages shall be reduced first. (d) Fair share rule In any health care lawsuit, each party shall be liable for that party’s several share of any damages only and not for the share of any other person. Each party shall be liable only for the amount of damages allocated to such party in direct proportion to such party’s percentage of responsibility. Whenever a judgment of liability is rendered as to any party, a separate judgment shall be rendered against each such party for the amount allocated to such party. For purposes of this section, the trier of fact shall determine the proportion of responsibility of each party for the claimant’s harm. (e) State flexibility No provision of this section shall be construed to preempt any State law (whether effective before, on, or after the date of the enactment of this Act) that specifies a particular monetary amount of economic or noneconomic damages (or the total amount of damages) that may be awarded in a health care lawsuit, regardless of whether such monetary amount is greater or lesser than is provided for under this section. 4. Maximizing patient recovery (a) Court supervision of share of damages actually paid to claimants In any health care lawsuit, the court shall supervise the arrangements for payment of damages to protect against conflicts of interest that may have the effect of reducing the amount of damages awarded that are actually paid to claimants. In particular, in any health care lawsuit in which the attorney for a party claims a financial stake in the outcome by virtue of a contingent fee, the court shall have the power to restrict the payment of a claimant’s damage recovery to such attorney, and to redirect such damages to the claimant based upon the interests of justice and principles of equity. In no event shall the total of all contingent fees for representing all claimants in a health care lawsuit exceed the following limits: (1) Forty percent of the first $50,000 recovered by the claimant(s). (2) Thirty-three and one-third percent of the next $50,000 recovered by the claimant(s). (3) Twenty-five percent of the next $500,000 recovered by the claimant(s). (4) Fifteen percent of any amount by which the recovery by the claimant(s) is in excess of $600,000. (b) Applicability The limitations in this section shall apply whether the recovery is by judgment, settlement, mediation, arbitration, or any other form of alternative dispute resolution. In a health care lawsuit involving a minor or incompetent person, a court retains the authority to authorize or approve a fee that is less than the maximum permitted under this section. The requirement for court supervision in the first two sentences of subsection (a) applies only in civil actions. (c) State flexibility No provision of this section shall be construed to preempt any State law (whether effective before, on, or after the date of the enactment of this Act) that specifies a lesser percentage or lesser total value of damages which may be claimed by an attorney representing a claimant in a health care lawsuit. 5. Authorization of payment of future damages to claimants in health care lawsuits (a) In general In any health care lawsuit, if an award of future damages, without reduction to present value, equaling or exceeding $50,000 is made against a party with sufficient insurance or other assets to fund a periodic payment of such a judgment, the court shall, at the request of any party, enter a judgment ordering that the future damages be paid by periodic payments, in accordance with the Uniform Periodic Payment of Judgments Act promulgated by the National Conference of Commissioners on Uniform State Laws. (b) Applicability This section applies to all actions which have not been first set for trial or retrial before the effective date of this Act. (c) State Flexibility No provision of this section shall be construed to preempt any State law (whether effective before, on, or after the date of the enactment of this Act) that specifies periodic payments for future damages at any amount other than $50,000 or that mandates such payments absent the request of either party. 6. Product liability for health care providers A health care provider who prescribes, or who dispenses pursuant to a prescription, a medical product approved, licensed, or cleared by the Food and Drug Administration shall not be named as a party to a product liability lawsuit involving such product and shall not be liable to a claimant in a class action lawsuit against the manufacturer, distributor, or seller of such product. 7. Definitions In this Act: (1) Alternative dispute resolution system; ADR The term alternative dispute resolution system ADR (2) Claimant The term claimant (3) Collateral source benefits The term collateral source benefits (A) any State or Federal health, sickness, income-disability, accident, or workers’ compensation law; (B) any health, sickness, income-disability, or accident insurance that provides health benefits or income-disability coverage; (C) any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or income-disability benefits; and (D) any other publicly or privately funded program. (4) Contingent fee The term contingent fee (5) Economic damages The term economic damages (6) Future damages The term future damages (7) Health care lawsuit The term health care lawsuit (8) Health care liability action The term health care liability action (9) Health care liability claim The term health care liability claim (10) Health care provider The term health care provider (11) Health care services The term health care services (12) Medical product The term medical product drug device biological product 21 U.S.C. 321(g)(1) 42 U.S.C. 262(a) (13) Noneconomic damages The term noneconomic damages (14) Recovery The term recovery (15) Representative The term representative (16) State The term State 8. Effect on other laws (a) Vaccine injury (1) To the extent that title XXI of the Public Health Service Act establishes a Federal rule of law applicable to a civil action brought for a vaccine-related injury or death— (A) this Act does not affect the application of the rule of law to such an action; and (B) any rule of law prescribed by this Act in conflict with a rule of law of such title XXI shall not apply to such action. (2) If there is an aspect of a civil action brought for a vaccine-related injury or death to which a Federal rule of law under title XXI of the Public Health Service Act does not apply, then this Act or otherwise applicable law (as determined under this Act) will apply to such aspect of such action. (b) Other Federal law Except as provided in this section, nothing in this Act shall be deemed to affect any defense available to a defendant in a health care lawsuit or action under any other provision of Federal law. 9. Rules of construction (a) Health care lawsuits Unless otherwise specified in this Act, the provisions governing health care lawsuits set forth in this Act preempt, subject to subsections (b) and (c), State law to the extent that State law prevents the application of any provisions of law established by or under this Act. The provisions governing health care lawsuits set forth in this Act supersede chapter 171 (1) provides for a greater amount of damages or contingent fees, a longer period in which a health care lawsuit may be commenced, or a reduced applicability or scope of periodic payment of future damages, than provided in this Act; or (2) prohibits the introduction of evidence regarding collateral source benefits, or mandates or permits subrogation or a lien on collateral source benefits. (b) Protection of States’ rights and other laws Any issue that is not governed by any provision of law established by or under this Act (including State standards of negligence) shall be governed by otherwise applicable State or Federal law (c) State Flexibility No provision of this Act shall be construed to preempt any defense available to a party in a health care lawsuit under any other provision of State or Federal law. 10. Effective date This Act shall apply to any health care lawsuit brought in a Federal or State court, or subject to an alternative dispute resolution system, that is initiated on or after the date of the enactment of this Act, except that any health care lawsuit arising from an injury occurring prior to the date of the enactment of this Act shall be governed by the applicable statute of limitations provisions in effect at the time the cause of action accrued. March 22, 2017 Reported from the Committee on the Judiciary March 22, 2017 The Committee on Energy and Commerce

Summary: Protecting Access to Care Act of 2017 This bill establishes provisions governing health care lawsuits where coverage for the care was provided or subsidized by the federal government, including through a subsidy or tax benefit. (Sec. 2) In general, the statute of limitations is three years after the occurrence of the breach or tort, three years after medical or health-care treatment for the injury is completed, or one year after the claimant discovers the injury, whichever occurs first. For a minor, the statute of limitations is three years after the occurrence of the breach or tort or three years after medical or health-care treatment for the injury is completed, whichever occurs first, except for a minor under six years old, for whom it is the later of three years after the occurrence of the breach or tort, three years after medical or health-care treatment for the injury is completed, one year after discovery of the injury, or the minor's eighth birthday. These limitations are tolled under certain circumstances. These provisions do not preempt certain state laws. (Sec. 3) Noneconomic damages are limited to $250,000, before accounting for reductions in damages required by law. Juries may not be informed of this limitation. Parties are liable for the amount of damages directly proportional to their responsibility. These provisions do not preempt state laws that specify a particular monetary amount of damages. (Sec. 4) Courts must supervise the payment of damages and may restrict attorney contingent fees. The bill sets limits on contingent fees. The bill does not preempt state laws that specify a lesser percentage or value of damages that may be claimed by an attorney representing a claimant. (Sec. 5) The bill provides for periodic payment of future damage awards. The bill does not preempt state laws that mandate periodic payments. (Sec. 6) A health care provider who prescribes, or dispenses pursuant to a prescription, a medical product approved by the Food and Drug Administration may not be a party to a product liability lawsuit or a class action lawsuit regarding the medical product. (Sec. 8) The bill does not preempt federal vaccine injury laws. (Sec. 9) The bill preempts federal tort laws that provide for greater amounts of damages or contingent fees, a longer statute of limitations, or reduced applicability or scope of periodic payment of future damages. (Sec. 10) The bill applies to health care lawsuits initiated after enactment. Lawsuits are governed by the statue of limitations applicable at the time of injury. (Sec. 11) The bill establishes limitations on expert-witness testimony by a health-care professional who was not licensed to practice or had not practiced, in the state or a contiguous bordering state, a relevant profession or specialty during the year preceding the date of the alleged injury or wrongful act. (Sec. 12) Certain provider communications shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest in a health-care liability action. These provisions do not preempt state laws making additional communications inadmissible as evidence. (Sec. 13) The bill specifies additional qualifications for expert witnesses in health-care liability actions. These provisions do not preempt state laws placing additional qualification requirements upon individuals testifying as expert witnesses. (Sec. 14) The bill establishes requirements for the filing of an affidavit of merit. These provisions do not preempt state laws establishing additional requirements for pre-litigation documentation. (Sec. 15) The bill establishes requirements for the provision of advance notice of intent to commence a health-care lawsuit against a provider. These provisions do not preempt state laws establishing different time periods for the filing of written notice.