I
103D CONGRESS
1ST SESSION
H. R. 1192
To provide for uniformity of quality and a substantial reduction in the
overall costs of health care in the United States through the development
of diagnostic and treatment protocols and the implementation of the
protocols in the program under title XVIII of the Social Security Act,
the imposition of limitations on the amount of damages that may be
paid in a health care liability action, and the mandatory establishment
by States of alternative dispute resolution systems to resolve health
care liability claims, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
MARCH 3, 1993
Mr. HUNTER introduced the following bill; which was referred jointly to the
Committees on Ways and Means, Energy and Commerce, and the Judiciary
A BILL
To provide for uniformity of quality and a substantial reduc-
tion in the overall costs of health care in the United
States through the development of diagnostic and treat-
ment protocols and the implementation of the protocols
in the program under title XVIII of the Social Security
Act, the imposition of limitations on the amount of dam-
ages that may be paid in a health care liability action,
and the mandatory establishment by States of alternative
dispute resolution systems to resolve health care liability
claims, and for other purposes.
(b) UNIFORMITY OF QUALITY AND SUBSTANTIAL RE-
DUCTION
IN COSTS
OF HEALTH CARE
AS PRINCIPAL
GOALS OF PROTOCOLS.—The Secretary shall ensure that,
in the development of protocols under subsection (a), the
principal goals are achieving uniformity of quality in, and
the substantial reduction of the overall costs of, health
care in the United States.
(c) APPROVAL OF PROTOCOLS AND PROGRAMS; PLAN
FOR IMPLEMENTATION IN MEDICARE PROGRAM.—
(1) IN GENERAL.—The Secretary shall require
that all protocols and programs developed under
subsection (a) be submitted to the Secretary. Sub-
ject to subsection (d), in the case of each such proto-
col or program so submitted, the Secretary shall—
(A) evaluate the protocol or program (as
the case may be) on the basis of the extent to
which the protocol or program facilitates the
goal described in subsection (b); and
(B) on such basis approve or disapprove
the protocol or program not later than 45 days
after the protocol or program is submitted to
the Secretary.
(2) PLAN FOR IMPLEMENTATION.—In the case
of each protocol and program approved under para-
graph (1), the Secretary, not later than 90 days
after the protocol or program (as the case may be)
is so approved, shall submit to the appropriate com-
mittees of the Congress a plan for the implementa-
tion of the protocol or program in the program
under title XVIII of the Social Security Act. The
plan shall include proposed legislation for accom-
plishing such implementation.
(d) COLLABORATION AMONG CENTERS.—The Sec-
retary may not approve a protocol or program for pur-
poses of subsection (c) unless the protocol or program (as
the case may be) has been approved by each of the heads
of the centers operated pursuant to subsection (a).
SEC. 102. REQUIREMENTS FOR CENTERS.
The Secretary may provide a grant or contract under
section 101(a) only if—
(1) the applicant for the grant operates a medi-
cal facility;
(2) such facility has a large patient population;
and
(3) the administrators and medical staff of the
facility have demonstrated expertise in developing
and implementing successful programs for the reduc-
tion of health care costs.
SEC. 103. ADVISORY COUNCIL.
The Secretary shall establish an advisory council to
provide recommendations to the Secretary with respect to
carrying out this title, including recommendations on ap-
proving applications for grants and contracts under sec-
tion 101(a). The Secretary shall make appointments to
such council from among health care providers and admin-
istrators of medical facilities who are not employees or
officers of the Federal Government.
SEC. 104. GENERAL PROVISIONS.
(a) APPLICATION FOR GRANT OR CONTRACT.—The
Secretary may provide a grant or contract under section
101(a) only if an application for the grant or contract is
submitted to the Secretary and the application is in such
form, is made in such manner, and contains such agree-
ments, assurances, and information as the Secretary
determines to be necessary to carry out this title.
(b) SOURCE
OF FUNDING.—The Secretary shall
make grants and contracts under section 101(a) using
only funds appropriated to carry out activities of the
Administrator for Health Care Policy and Research.
(c) LIMITATION ON AMOUNT PROVIDED TO RECIPI-
ENT.—The total amount provided to any entity under any
grant or contract made under section 101(a) may not
exceed $5,000,000.
(d) DEFINITION.—For purposes of this title, the term
‘‘Secretary’’ means the Secretary of Health and Human
Services.
TITLE 
II—MEDICAL 
MAL-
PRACTICE 
LIABILITY 
RE-
FORM
SEC. 201. DEFINITIONS.
In this title, the following definitions shall apply:
(1) ECONOMIC DAMAGES.—The term ‘‘economic
damages’’ means damages paid to compensate an in-
dividual for medical expenses, lost wages or other in-
come, lost employment, burial expenses, and other
pecuniary losses.
(2) HEALTH
CARE
LIABILITY
ACTION.—The
term ‘‘health care liability action’’ means a civil ac-
tion brought against a health care provider (regard-
less of the theory of liability on which the action is
based) in which a plaintiff alleges an injury caused
by the provision of (or the failure to provide) health
care services, except that such term does not in-
clude—
(A) any action in which a plaintiff alleges
an intentional tort; or
(B) any action in which the plaintiff’s sole
allegation is an allegation of an injury arising
from the use of a medical product.
(3) HEALTH
CARE
PROVIDER.—The term
‘‘health care provider’’ means any individual or en-
tity that is engaged in the delivery of health care
services and is required under Federal or State law
to be licensed, certified, or accredited in order to
deliver such services.
(4) INJURY.—The term ‘‘injury’’ means any ill-
ness, disease, or other harm that is the subject of
a health care liability action.
(5) 
NON-ECONOMIC
DAMAGES.—The 
term
‘‘non-economic damages’’ means any damages paid
to compensate an individual for subjective, non-mon-
etary losses, including pain, suffering, inconvenience,
mental suffering, emotional distress, loss of society
and companionship, loss of consortium, injury to
reputation, and humiliation, but does not include
punitive damages.
(6) SECRETARY.—The term ‘‘Secretary’’ means
the Secretary of Health and Human Services.
(7) STATE.—The term ‘‘State’’ means each of
the several States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands,
Guam, American Samoa, and the Northern Mariana
Islands.
SEC. 202. MALPRACTICE LIABILITY REFORM REQUIRE-
MENTS DESCRIBED.
(a) IN GENERAL.—Subject to section 203, a State
meets the requirements of this section if it has enacted
laws, rules, or regulations relating to the treatment of
health care liability actions that meet the requirements of
subsections (b) through (d), and relating to alternative
dispute resolution mechanisms that meet the requirements
of subsection (e).
(b) LIABILITY SEVERAL AND NOT JOINT FOR NON-
ECONOMIC DAMAGES.—
(1) IN
GENERAL.—With respect to non-eco-
nomic damages, the liability of each defendant in a
health care liability action shall be several only and
shall not be joint. Each defendant shall be liable
only for the amount of non-economic losses incurred
by the plaintiff that is in direct proportion to the de-
fendant’s percentage of responsibility for the injury
suffered by the plaintiff (as determined by the trier
of fact pursuant to paragraph (2)).
(2) DETERMINATION OF PERCENTAGE OF RE-
SPONSIBILITY.—The trier of fact shall determine the
extent of each defendant’s responsibility for the non-
economic injury suffered by the plaintiff, and shall
assign a percentage of responsibility for such injury
to each defendant.
(c) LIMITATION ON NONECONOMIC DAMAGES.—
(1) IN GENERAL.—The total amount of non-
economic damages that may be awarded to an indi-
vidual and the family members of such individual for
losses resulting from an injury which is the subject
of a health care liability action may not exceed
$250,000, regardless of the number of health care
providers against whom the action is brought or the
number of actions brought with respect to the
injury.
(2) 
ADJUSTMENT
FOR
INFLATION.—The
amount referred to in paragraph (1) shall be in-
creased every 3rd year (beginning with the 3rd year
that begins after the date of the enactment of this
Act) in the same manner as amounts are increased
under section 215(i) of the Social Security Act for
base quarters or cost-of-living computation quarters
in such a year.
(d) MANDATORY OFFSETS FOR DAMAGES PAID BY
A COLLATERAL SOURCE.—
(1) IN GENERAL.—The total amount of dam-
ages received by an individual under a health care
liability action shall be reduced (in accordance with
paragraph (2)) by any other payment that has been
or will be made to the individual to compensate the
individual for the injury that was the subject of the
health care liability action, including payment
under—
(A) Federal or State disability or sickness
programs;
(B) Federal, State, or private health insur-
ance programs;
(C) private disability insurance programs;
(D) employer wage continuation programs;
and
(E) any other source of payment intended
to compensate such individual for such injury.
(2) AMOUNT OF REDUCTION.—The amount by
which an award of damages to an individual shall be
reduced under paragraph (1) shall be the total
amount of any payments (other than such award)
that have been made or that will be made to the in-
dividual to compensate the individual for the injury
that was the subject of the action.
(e) ESTABLISHMENT
OF ALTERNATIVE DISPUTE
RESOLUTION MECHANISMS.—
(1) IN GENERAL.—Each State shall have in ef-
fect at least one mediation or pretrial screening
panel that meets requirements specified in regula-
tions issued by the Secretary, or shall have in effect
another alternative dispute resolution mechanism
which the Secretary, in consultation with the Attor-
ney General, finds to be equally effective in deterring
the filing of frivolous health care liability actions and
providing fair and expeditious compensation for mer-
itorious health care liability claims.
(2) PROMULGATION
OF
REGULATIONS.—Sub-
ject to paragraph (3), the Secretary, in consultation
with the Administrative Conference of the United
States and the Attorney General, shall promulgate
regulations that specify the Secretary’s criteria for
mediation and pretrial screening panels and for eval-
uating the effectiveness of other alternative dispute
resolution mechanisms under paragraph (1).
(3) TOLLING
OF
STATUTE
OF
LIMITATIONS
DURING ALTERNATIVE PROCEDURES.—Any regula-
tions promulgated by the Secretary pursuant to
paragraph (2) shall include a requirement that a
State may not include any time occurring after a
claim is filed with a mediation or pretrial screening
panel or under any other alternative dispute resolu-
tion mechanism under paragraph (1) for purposes of
determining the applicability of any statute of limi-
tations to a health care liability action arising from
the injury that is the subject of the claim.
SEC. 203. WAIVER OF REQUIREMENTS FOR GOOD CAUSE OR
FOR 
CARRYING 
OUT 
DEMONSTRATION
PROJECTS.
The Secretary may waive any of the requirements of
subsections (b) through (e) of section 202 for good cause
or to the extent necessary to enable a State to carry out
an experimental, demonstration, or pilot project if, in the
judgment of the Secretary, the project is likely to promote
the objectives of this title.
SEC. 204. CERTIFICATION OF STATE COMPLIANCE.
(a) NOTIFICATION.—
(1) IN GENERAL.—Not later than 6 months be-
fore the beginning of each year (beginning with the
first year that begins after the expiration of the 3-
year period beginning on the date of the enactment
of this Act), each State shall submit a notification
to the Secretary, with a certification by the Chief
Executive Officer of the State that, on the date the
notification is submitted, the State has enacted,
adopted, or otherwise has in effect laws, rules, or
regulations that meet the requirements of section
202.
(2) CONTENTS OF NOTIFICATION.—The notifi-
cation shall be accompanied by documentation to
support the certification required by this subsection,
including copies of relevant State statutes, rules,
procedures, regulations, judicial decisions, State con-
stitutional provisions, and opinions of the State At-
torney General, and shall contain such other infor-
mation, be in such form, and be submitted in such
manner, as the Secretary may require.
(b) REVIEW OF NOTIFICATION.—
(1) IN GENERAL.— Within 90 days after receiv-
ing a notification under subsection (a), the Secretary
shall review the notification and determine whether
the notification demonstrates that the State has en-
acted, adopted, or otherwise has in effect laws, rules,
or regulations that meet the requirements of section
202.
(2) APPROVAL OF NOTIFICATION.—If the Sec-
retary determines that the notification makes such
demonstration, the Secretary shall approve the
notification.
(3) NOTICE OF DISAPPROVAL.—If, after review-
ing a State’s notification under subsection (a), the
Secretary determines that the notification does not
make the demonstration required, the Secretary
shall, not later than 15 days after making such de-
termination, provide the State with a written notice
specifying such determination and containing rec-
ommendations for revisions which would cause the
notification of the State to be approved.
(4) REVIEW OF REVISED NOTIFICATIONS.—Not
later than 30 days after receiving a revised notifica-
tion, the Secretary shall review the revised notifica-
tion and determine whether the notification dem-
onstrates that the State has enacted, adopted, or
otherwise has in effect laws, rules, or regulations
that meet the requirements of section 202. If the
Secretary determines that the revised notification
makes such a demonstration, the Secretary shall
approve the revised notification.
(c) NON-COMPLIANCE.—
(1) FAILURE TO SUBMIT NOTIFICATION.—If a
State fails to submit to the Secretary a notification
or revised notification pursuant to this section, the
Secretary shall, not later than 15 days after the pe-
riod provided for submitting notification under this
section, send the State written notice of determina-
tion of non-compliance.
(2) FAILURE TO MEET REQUIREMENTS.—If the
Secretary determines that a revised notification sub-
mitted under subsection (b) does not demonstrate
that the State has enacted, adopted, or otherwise
has in effect laws, rules, or regulations that meet the
requirements of section 202, and disapproves the
State’s revised notification, the Secretary shall, not
later than 15 days after making such determination,
provide the State with written notice of non-compli-
ance, including the determination of the Secretary
and the reasons therefore.
(3) FAILURE TO MEET REQUIREMENTS AFTER
INITIAL APPROVAL.—If, during any time period after
a notification is approved under this section, the
Secretary determines that the State does not have
currently in effect or has ceased enforcing the laws,
rules, or regulations upon which the notification was
approved, the Secretary shall, not later than 30 days
of making such determination provide the State with
written notice of such determination and withdraw
the approval of the notification. Such notice shall
specify the determination of the Secretary and the
reasons therefore.
(d) CONSULTATION WITH ATTORNEY GENERAL.—In
making determinations of compliance or non-compliance
pursuant to this section, the Secretary shall consult with
the Attorney General.
SEC. 205. INCENTIVES THROUGH MEDICARE AND MEDIC-
AID.
(a) MEDICARE INCENTIVES.—
(1) IN GENERAL.—Section 1886 of the Social
Security Act (42 U.S.C. 1395ww) is amended by
adding at the end the following new subsection:
‘‘(j) PAYMENT INCENTIVES TO ENCOURAGE MEDI-
CAL MALPRACTICE LIABILITY REFORM.—
‘‘(1) REDUCTION IN PAYMENTS FOR HOSPITALS
LOCATED
IN
CERTAIN
STATES.—Notwithstanding
any other provision of this title, the Secretary shall
reduce each payment amount otherwise determined
under this section by 1 percent for discharges during
a cost reporting period with respect to hospitals that
are not located in a State which the Secretary cer-
tifies (pursuant to section 204 of the Savings
Through Health Protocols and Malpractice Reform
Act of 1993) meets the requirements of section 202
of the Savings Through Health Protocols and Mal-
practice Reform Act of 1993 for the cost reporting
period.
‘‘(2) ADDITIONAL
PAYMENT
FOR
HOSPITALS
LOCATED IN STATES ENACTING REFORMS.—With re-
spect to hospitals that are not subject to a reduction
in payment under paragraph (1), the Secretary shall
make an additional payment for discharges during a
cost reporting period equal to the product of—
‘‘(A) an amount equal to the total of all
amounts that were not paid to hospitals during
the cost reporting period as a result of the re-
ductions made under such paragraph; and
‘‘(B) a percentage equal to the percentage
of all payments under this section during the
year to all hospitals that are not subject to the
reduction described in such paragraph that is
attributable to payments to that hospital.’’.
(2) EFFECTIVE DATE.—The amendment made
by paragraph (1) shall apply with respect to dis-
charges for cost reporting periods beginning on or
after the first day of the first fiscal year that begins
after the expiration of the 3-year period beginning
on the date of the enactment of this Act.
(b) MEDICAID INCENTIVES.—
(1) IN GENERAL.—Section 1903 of the Social
Security Act (42 U.S.C. 1396b) is amended by in-
serting after subsection (r) the following new sub-
section:
‘‘(s)(1)(A) In order for a State to receive payments
under paragraph (7) of subsection (a) for quarters in a
year without being subject to the reduction described in
subparagraph (B), the Secretary must certify (pursuant
to section 204 of the Savings Through Health Protocols
and Malpractice Reform Act of 1993) that the State meets
the requirements of section 202 of the Savings Through
Health Protocols and Malpractice Reform Act of 1993 for
the year.
‘‘(B) If a State is not certified for a year by the Sec-
retary under subparagraph (A), the per centum specified
in paragraph (7) of subsection (a) with respect to the
State shall be reduced by 2 percentage points for quarters
during the year.
‘‘(2) In the case of a State that is not subject to the
reduction described in paragraph (1)(B) for quarters dur-
ing a year, the Secretary shall make an additional pay-
ment to the State equal to the product of—
‘‘(A) an amount equal to the total of all
amounts that were not paid to States during the
year as a result of the reductions made under such
paragraph; and
‘‘(B) a percentage equal to the percentage of all
payments under this section during the year to all
States that are not subject to the reduction de-
scribed in such paragraph that is attributable to
payments to that State.’’.
(2) EFFECTIVE DATE.—The amendment made
by paragraph (1) shall apply to calendar quarters
beginning on or after the first January 1 that begins
after the expiration of the 3-year period beginning
on the date of the enactment of this Act.
SEC. 206. APPLICABILITY OF CERTAIN PROVISIONS TO FED-
ERAL TORT CLAIMS ACT.
(a) IN GENERAL.—Chapter 171 of title 28, United
States Code, is amended by adding at the end the follow-
ing new section:
‘‘§2681. Special rules for health care liability actions
‘‘(a) Notwithstanding any other provision of this
chapter, any action brought against the United States
under this chapter that is a health care liability action
shall be subject to the following:
‘‘(1)(A) With respect to non-economic damages,
the liability of the United States shall be several
only and shall not be joint. The United States shall
be liable only for the amount of non-economic losses
incurred by the plaintiff that is in direct proportion
to the United States’ percentage of responsibility for
the injury suffered by the plaintiff (as determined by
the court pursuant to subparagraph (B)).
‘‘(B) The court shall determine the extent of
each defendant’s responsibility for the non-economic
injury suffered by the plaintiff, and shall assign a
percentage of responsibility for such injury to each
defendant.
‘‘(2)(A) The total amount of noneconomic dam-
ages that may be awarded to an individual and the
family members of such individual for losses result-
ing from an injury which is the subject of the action
may not exceed $250,000, regardless of the number
of defendants against whom the action is brought or
the number of actions brought with respect to the
injury.
‘‘(B) The amount referred to in subparagraph
(A) shall be increased every 3rd year (beginning
with the 3rd year that begins after the date of the
enactment of this section) in the same manner as
amounts are increased under section 215(i) of the
Social Security Act for base quarters or cost-of-liv-
ing computation quarters in such a year.
‘‘(3)(A) The total amount of damages received
by an individual shall be reduced (in accordance with
subparagraph (B)) by any other payment that has
been or will be made to the individual to compensate
the individual for the injury that was the subject of
the action, including payment under—
‘‘(i) Federal or State disability or sickness
programs;
‘‘(ii) Federal, State, or private health in-
surance programs;
‘‘(iii) private disability insurance programs;
‘‘(iv) employer wage continuation pro-
grams; and
‘‘(v) any other source of payment intended
to compensate such individual for such injury.
‘‘(B) The amount by which an award of dam-
ages to an individual shall be reduced under sub-
paragraph (A) shall be the total amount of any pay-
ments (other than such award) that have been made
or that will be made to the individual to compensate
the individual for the injury that was the subject of
the action.
‘‘(b) In this section, the following definitions shall
apply:
‘‘(1) The term ‘economic damages’ means dam-
ages paid to compensate an individual for medical
expenses, lost wages or other income, lost employ-
ment, burial expenses, and other pecuniary losses.
‘‘(2) The term ‘health care liability action’
means a civil action brought against the United
States (regardless of the theory of liability on which
the action is based) in which a plaintiff alleges an
injury caused by the provision of (or the failure to
provide) health care services, except that such term
does not include—
‘‘(A) any action in which a plaintiff alleges
an intentional tort; or
‘‘(B) any action in which the plaintiff’s
sole allegation is an allegation of an injury aris-
ing from the use of a medical product.
‘‘(3) The term ‘injury’ means any illness, dis-
ease, or other harm that is the subject of a health
care liability action.
‘‘(4) The term ‘non-economic damages’ means
any damages paid to compensate an individual for
subjective, non-monetary losses, including pain, suf-
fering, inconvenience, mental suffering, emotional
distress, loss of society and companionship, loss of
consortium, injury to reputation, and humiliation,
but does not include punitive damages.’’.
(b) CLERICAL AMENDMENT.—The table of sections
at the beginning of chapter 171 of title 28, United States
Code, is amended by adding at the end the following new
item:
‘‘2681. Special rules for health care liability actions.’’.
(c) EFFECTIVE DATE.—The amendments made by
subsections (a) and (b) shall apply to actions brought
against the United States on or after the date of the en-
actment of this Act.
SEC. 207. RULES OF CONSTRUCTION.
Nothing in this title may be construed to—
(1) waive or affect any defense of sovereign im-
munity asserted by any State under any law or by
the United States;
(2) preempt State choice-of-law rules with re-
spect to claims brought by a foreign nation or a citi-
zen of a foreign nation;
(3) affect the right of any court to transfer
venue, to apply the law of a foreign nation, or to dis-
miss a claim of a foreign nation or of a citizen of
a foreign nation on the ground of inconvenient
forum;
(4) create or vest jurisdiction in the district
courts of the United States over any health care li-
ability action subject to this Act (which is not other-
wise properly in Federal district court); or
(5) prevent any State from enacting, adopting,
or otherwise having in effect more comprehensive or
additional health care liability reforms than those set
forth in this title.
Æ
HR 1192 IH——2