I
104TH CONGRESS
1ST SESSION
H. R. 229
To impose certain requirements on medical malpractice liability claims.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 4, 1995
Mr. DORNAN introduced the following bill; which was referred to the Commit-
tee on the Judiciary and, in addition, to the Committee on 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 impose certain requirements on medical malpractice
liability claims.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Medical Injury Com-
pensation Reform Act of 1995’’.
SEC. 2. GENERAL PROVISIONS.
(a) CONGRESSIONAL FINDINGS.—
(1) EFFECT ON INTERSTATE COMMERCE.—The
Congress finds that the health care and insurance
industries are industries affecting interstate com-
merce and the medical malpractice litigation systems
existing throughout the United States affect inter-
state commerce by contributing to the high cost of
health care and premiums for malpractice insurance
purchased by health care providers.
(2) EFFECT
ON
FEDERAL
SPENDING.—The
Congress finds that the medical malpractice litiga-
tion systems existing throughout the United States
have a significant effect on the amount, distribution,
and use of Federal funds because of—
(A) the large number of individuals who
receive health care benefits under programs op-
erated or financed by the Federal Government;
(B) the large number of individuals who
benefit because of the exclusion from Federal
taxes of the amounts spent by their employers
to provide them with health insurance benefits;
(C) the large number of health care provid-
ers and health care professionals who provide
items or services for which the Federal Govern-
ment makes payments; and
(D) the large number of such providers
and professionals who have received direct or
indirect financial assistance from the Federal
Government because of their status as such
professionals or providers.
(b) APPLICABILITY.—This Act shall apply with re-
spect to any medical malpractice liability claim and to any
medical malpractice liability action brought in any State
or Federal court, except that this Act shall not apply to—
(1) a claim or action for damages arising from
a vaccine-related injury or death to the extent that
title XXI of the Public Health Service Act applies to
the claim or action; or
(2) a claim or action in which the claimant’s
sole allegation is an allegation of an injury arising
from the use of a medical product.
(c) PREEMPTION OF STATE LAW.—Subject to section
10, this Act supersedes State law only to the extent that
State law differs from any provision of law established by
or under this Act. Any issue that is not governed by any
provision of law established by or under this Act shall be
governed by otherwise applicable State or Federal law.
(d) FEDERAL COURT JURISDICTION NOT ESTAB-
LISHED ON FEDERAL QUESTION GROUNDS.—Nothing in
this Act shall be construed to establish any jurisdiction
in the district courts of the United States over medical
malpractice liability actions on the basis of section 1331
or 1337 of title 28, United States Code.
SEC. 3. DEFINITIONS.
As used in this Act:
(1) CLAIMANT.—The term ‘‘claimant’’ means
any person who alleges a medical malpractice liabil-
ity claim or, in the case of an individual who is de-
ceased, incompetent, or a minor, the person on
whose behalf such a claim is alleged.
(2) ECONOMIC DAMAGES.—The term ‘‘economic
damages’’ means damages paid to compensate an in-
dividual for losses for hospital and other medical ex-
penses, lost wages, lost employment, and other pecu-
niary losses.
(3) HEALTH CARE PROFESSIONAL.—The term
‘‘health care professional’’ means any individual who
provides health care services in a State and who is
required by State law or regulation to be licensed or
certified by the State to provide such services in the
State.
(4) HEALTH
CARE
PROVIDER.—The term
‘‘health care provider’’ means any organization or
institution that is engaged in the delivery of health
care services in a State and that is required by State
law or regulation to be licensed or certified by the
State to engage in the delivery of such services in
the State.
(5) INJURY.—The term ‘‘injury’’ means any ill-
ness, disease, or other harm that is the subject of
a medical malpractice liability action or claim.
(6) MEDICAL
MALPRACTICE
LIABILITY
AC-
TION.—The term ‘‘medical malpractice liability ac-
tion’’ means a civil action (other than an action in
which the claimant’s sole allegation is an allegation
of an intentional tort) brought in a State or Federal
court against a health care provider or health care
professional (regardless of the theory of liability on
which the action is based) in which the claimant al-
leges a medical malpractice liability claim.
(7) 
MEDICAL
MALPRACTICE
LIABILITY
CLAIM.—The term ‘‘medical malpractice liability
claim’’ means a claim in which the claimant alleges
that injury was caused by the provision of (or the
failure to provide) health care services.
(8) MEDICAL
PRODUCT.—The term ‘‘medical
product’’ means a device (as defined in section
201(h) of the Federal Food, Drug, and Cosmetic
Act) or a drug (as defined in section 201(g)(1) of
the Federal Food, Drug, and Cosmetic Act).
(9) NONECONOMIC DAMAGES.—The term ‘‘non-
economic damages’’ means damages paid to com-
pensate an individual for losses for physical and
emotional pain, suffering, inconvenience, physical
impairment, mental anguish, disfigurement, loss of
enjoyment of life, loss of consortium, and other
nonpecuniary losses, but does not include punitive
damages.
(10) 
SECRETARY.—The 
term 
‘‘Secretary’’
means the Secretary of Health and Human Services.
(11) STATE.—The term ‘‘State’’ means each of
the several States, the District of Columbia, the
Commonwealth of Puerto Rico, and any other terri-
tory or possession of the United States.
SEC. 4. EFFECTIVE DATE.
(a) IN GENERAL.—Except as provided in subsection
(b) and section 11, this Act shall apply with respect to
claims accruing or actions brought on or after the expira-
tion of the 3-year period that begins on the date of the
enactment of this Act.
(b) EXCEPTION FOR STATES REQUESTING EARLIER
IMPLEMENTATION OF REFORMS.—
(1) APPLICATION.—A State may submit an ap-
plication to the Secretary requesting the early imple-
mentation of this Act with respect to claims or ac-
tions brought in the State.
(2) DECISION BY SECRETARY.—The Secretary
shall issue a response to a State’s application under
paragraph (1) not later than 90 days after receiving
the application. If the Secretary determines that the
State meets the requirements of this Act at the time
of submitting its application, the Secretary shall ap-
prove the State’s application, and this Act shall
apply with respect to actions brought in the State on
or after the expiration of the 90-day period that be-
gins on the date the Secretary issues the response.
If the Secretary denies the State’s application, the
Secretary shall provide the State with a written ex-
planation of the grounds for the decision.
SEC. 5. STATUTE OF LIMITATIONS.
(a) IN GENERAL.—No medical malpractice liability
claim may be brought after the expiration of the 2-year
period that begins on the date the alleged injury that is
the subject of the action should reasonably have been dis-
covered, but in no event after the expiration of the 4-year
period that begins on the date the alleged injury occurred.
(b) EXCEPTION FOR MINORS.—In the case of an al-
leged injury suffered by a minor who has not attained 6
years of age, no medical malpractice liability claim may
be brought after the expiration of the 2-year period that
begins on the date the alleged injury that is the subject
of the action should reasonably have been discovered, but
in no event after the date on which the minor attains 10
years of age.
SEC. 6. ATTORNEYS’ FEES.
(a) LIMITATION ON CONTINGENCY FEES.—An attor-
ney shall not contract for or collect a contingency fee for
representing a claimant in a medical malpractice liability
action in excess of the following:
(1) 40 percent of the first $50,000 (or portion
thereof) of the amount recovered by the claimant.
(2) 331⁄3 percent of the next $50,000 (or por-
tion thereof) of the amount recovered by the claim-
ant.
(3) 25 percent of the next $500,000 (or portion
thereof) of the amount recovered by the claimant.
(4) 15 percent of any amounts recovered by the
claimant in excess of $600,000.
This subsection applies whether the recovery is by settle-
ment, arbitration, or judgment.
(b) CALCULATION OF PERIODIC PAYMENTS.—If peri-
odic payments are awarded to the claimant pursuant to
section 7(b), the court shall place a total value on these
payments based upon the projected life expectancy of the
claimant and include this amount in computing the total
award from which attorneys’ fees are calculated under
subsection (a).
(c) EFFECT OF FAILURE TO COMPLY.—Failure to
comply with this section by an attorney at law shall be
grounds for professional discipline by the appropriate
State agency responsible for the conduct of disciplinary
actions against attorneys-at-law.
(d) DEFINITIONS.—For purposes of this section—
(1) the term ‘‘contingency fee’’ means any fee
for professional legal services which is in whole or in
part contingent upon the recovery of any amount of
damages, whether through judgment or settlement;
and
(2) the term ‘‘recovered’’ means the net sum re-
covered after deducting any disbursements or costs
incurred in connection with prosecution or settle-
ment of the claim, except that costs of medical care
incurred by the claimant and the attorney’s office
overhead costs or charges shall not be deductible dis-
bursements under this paragraph.
SEC. 7. CALCULATION AND PAYMENT OF DAMAGES.
(a) LIMITATION ON NONECONOMIC DAMAGES.—The
total amount of noneconomic damages that may be award-
ed to a claimant for losses resulting from the injury which
is the subject of a medical malpractice liability action may
not exceed $250,000, regardless of the number of parties
SEC. 8. NOTICE OF ACTION.
(a) NOTICE REQUIREMENT.—
(1) IN GENERAL.—No medical malpractice li-
ability action may be commenced unless the defend-
ant has been given at least 90 days notice of the in-
tention to commence the action.
(2) CONTENTS OF NOTICE.—The notice under
paragraph (1) shall include the legal basis of the
medical malpractice liability claim on which the ac-
tion is based and the type of loss sustained, includ-
ing the specific nature of the injuries suffered.
(b) EFFECT ON STATUTE OF LIMITATIONS.—If the
notice under paragraph (1) is served within 90 days before
the expiration of the statute of limitations for filing the
medical malpractice liability action, the time for commenc-
ing the action shall extend for 90 days after the notice
under paragraph (1) is served.
(c) EFFECT OF FAILURE TO COMPLY.—Failure to
comply with this section shall not invalidate any court pro-
ceedings in the medical malpractice liability action in-
volved, and shall not affect the jurisdiction of the court
to render a judgment in the action, but a failure to comply
with this section by an attorney at law shall be grounds
for professional discipline by the appropriate State agency
responsible for the conduct of disciplinary actions against
attorneys-at-law.
SEC. 9. INJUNCTIVE RELIEF.
Whenever any person has engaged or is about to en-
gage in any conduct in violation of this Act, the appro-
priate court may, upon application of an interested party,
issue an injunction or other appropriate order restraining
such conduct.
SEC. 10. PREEMPTION.
(a) IN GENERAL.—The preceding provisions of this
Act supersede any State law only to the extent that State
law—
(1) permits the recovery of a greater amount of
damages by claimant;
(2) permits the collection of a greater amount
of attorneys’ fees by a claimant’s attorney; or
(3) establishes a longer period during which a
medical malpractice liability claim may be initiated.
(b) EFFECT ON SOVEREIGN IMMUNITY AND CHOICE
OF LAW OR VENUE.—Nothing in subsection (a) shall be
construed to—
(1) waive or affect any defense of sovereign im-
munity asserted by any State under any provision of
law;
(2) waive or affect any defense of sovereign im-
munity asserted by the United States;
(3) affect the applicability of any provision of
the Foreign Sovereign Immunities Act of 1976;
(4) preempt State choice-of-law rules with re-
spect to claims brought by a foreign country or a
citizen of a foreign country; or
(5) affect the right of any court to transfer
venue or to apply the law of a foreign country or to
dismiss a claim of a foreign country or of a citizen
of a foreign nation on the ground of inconvenient
forum.
SEC. 11. PERMITTING STATE PROFESSIONAL SOCIETIES TO
PARTICIPATE IN DISCIPLINARY ACTIVITIES.
(a) ROLE OF PROFESSIONAL SOCIETIES.—Notwith-
standing any other provision of State or Federal law, a
State agency responsible for the conduct of disciplinary
actions for a type of health care practitioner may enter
into agreements with State or county professional societies
of such type of health care practitioner to permit such so-
cieties to participate in the licensing of such health care
practitioner, and to review any health care malpractice ac-
tion, health care malpractice claim or allegation, or other
information concerning the practice patterns of any such
health care practitioner. Any such agreement shall comply
with subsection (b).
(b) REQUIREMENTS OF AGREEMENTS.—Any agree-
ment entered into under subsection (a) for licensing activi-
ties or the review of any health care malpractice action,
health care malpractice claim or allegation, or other infor-
mation concerning the practice patterns of a health care
practitioner shall provide that—
(1) the health care professional society conducts
such activities or review as expeditiously as possible;
(2) after the completion of such review, such so-
ciety shall report its findings to the State agency
with which it entered into such agreement;
(3) the conduct of such activities or review and
the reporting of such findings be conducted in a
manner which assures the preservation of confiden-
tiality of health care information and of the review
process; and
(4) no individual affiliated with such society is
liable for any damages or injury directly caused by
the individual’s actions in conducting such activities
or review.
(c) AGREEMENTS NOT MANDATORY.—Nothing in
this section may be construed to require a State to enter
into agreements with societies described in subsection (a)
to conduct the activities described in such subsection.
(d) EFFECTIVE DATE.—This section shall take effect
2 years after the date of the enactment of this Act.
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