IB 
Union Calendar No. 47 
112TH CONGRESS 
1ST SESSION 
H. R. 5 
[Report No. 112–39, Parts I and II] 
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 
JANUARY 24, 2011 
Mr. GINGREY of Georgia (for himself, Mr. DAVID SCOTT of Georgia, and Mr. 
SMITH of Texas) 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 Speak-
er, in each case for consideration of such provisions as fall within the ju-
risdiction of the committee concerned 
MARCH 17, 2011 
Reported from the Committee on the Judiciary with an amendment 
[Strike out all after the enacting clause and insert the part printed in italic] 
MARCH 17, 2011 
Referral to the Committee on Energy and Commerce, extended for a period 
ending not later than May 13, 2011 
MAY 13, 2011 
Referral to the Committee on Energy and Commerce, extended for a period 
ending not later than May 23, 2011 
MAY 23, 2011 
Additional sponsors: Mr. SESSIONS, Mr. ROGERS
of Michigan, Mrs. 
BLACKBURN, Mr. PLATTS, Mr. DENT, Mr. ROE of Tennessee, Mr. FLEM-
ING, Mrs. MYRICK, Mr. BRADY of Texas, Mr. FRANKS of Arizona, Mr. 
PRICE of Georgia, Mr. BISHOP of Utah, Mr. CRAWFORD, Mr. BURTON 
of Indiana, Mr. BUCSHON, Mr. LAMBORN, Mr. WILSON of South Caro-
lina, Mr. HERGER, Mr. FLORES, Mr. MARCHANT, Mr. PEARCE, Mr. 
MCCLINTOCK, Mr. HARRIS, Mr. HUELSKAMP, Mr. HARPER, Mr. 
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BILBRAY, Mr. ROYCE, Mr. GRIMM, Mr. SHIMKUS, Mr. GRAVES of Mis-
souri, Mrs. BIGGERT, Mr. STEARNS, Mr. HELLER, Mr. GARRETT, Mr. 
WESTMORELAND, Mr. JOHNSON of Ohio, Mr. SIMPSON, Mr. AKIN, Mr. 
ROGERS of Kentucky, Mr. WALDEN, Mr. ROSS of Florida, Mr. WOLF, 
Mr. QUAYLE, Mr. CONAWAY, Mr. GIBBS, Mr. MILLER of Florida, Mr. 
GERLACH, Mr. YOUNG of Florida, Mrs. BLACK, Mr. GALLEGLY, Mr. 
GUTHRIE, Mr. TIBERI, Mr. MATHESON, Mr. WITTMAN, Mr. SCALISE, Mr. 
BOUSTANY, Mr. BUCHANAN, Mrs. BONO
MACK, Mr. ISSA, Mrs. 
MCMORRIS RODGERS, Mr. GOSAR, Mr. MARINO, Mr. LATTA, Mr. 
HUIZENGA of Michigan, Mr. WOODALL, Mr. COLE, Mr. COFFMAN of Col-
orado, Mr. BENISHEK, Mr. FITZPATRICK, Mrs. ELLMERS, Mr. FORBES, 
Mr. LATHAM, Mr. KLINE, Mr. SCHOCK, Mr. TIPTON, Mr. CRENSHAW, 
Mr. CALVERT, Mr. SHUSTER, Mr. GUINTA, Mr. LUETKEMEYER, Mr. 
JONES, Mr. MCKINLEY, Mr. CANSECO, Mr. MANZULLO, Mr. WALBERG, 
Mr. ROHRABACHER, Mr. AUSTRIA, Mr. ALEXANDER, Mr. BASS of New 
Hampshire, Mr. OLSON, Mr. KINZINGER of Illinois, Mrs. CAPITO, Mr. 
GARY G. MILLER of California, Mr. REED, Mr. DOLD, Mr. TURNER, Mr. 
NEUGEBAUER, Mr. WALSH of Illinois, Ms. BUERKLE, Mr. ROSKAM, Mr. 
MCCOTTER, Mr. THOMPSON of Pennsylvania, Mr. MCCAUL, Mr. KELLY, 
Mr. CHAFFETZ, Mr. BARTLETT, Mrs. BACHMANN, Ms. GRANGER, Mr. 
LONG, Mr. MACK, Mr. HANNA, Mr. PETRI, Ms. JENKINS, Mr. 
HENSARLING, Mrs. HARTZLER, Mr. SAM JOHNSON of Texas, Mr. AUSTIN 
SCOTT of Georgia, Mr. LABRADOR, Mr. HALL, Mr. FLEISCHMANN, Mr. 
MURPHY of Pennsylvania, Mr. WEST, Mr. RIBBLE, Mr. FARENTHOLD, 
Mr. HULTGREN, Mr. NUNNELEE, Mr. GARDNER, Mr. WOMACK, Mr. 
LANDRY, Ms. HAYWORTH, Mr. HUNTER, and Mr. RUNYAN 
MAY 23, 2011 
Reported from the Committee on Energy and Commerce with amendments, 
committed to the Committee of the Whole House on the State of the 
Union, and ordered to be printed 
[Omit the part struck through and insert the part printed in boldface roman] 
A BILL 
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. 
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Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Help Efficient, Accessible, Low-cost, Timely Healthcare 
(HEALTH) Act of 2011’’. 
(b) TABLE OF CONTENTS.—The table of contents of this 
Act is as follows: 
Sec. 1. Short title; table of contents. 
Sec. 2. Findings and purpose. 
Sec. 3. Encouraging speedy resolution of claims. 
Sec. 4. Compensating patient injury. 
Sec. 5. Maximizing patient recovery. 
Sec. 6. Punitive damages. 
Sec. 7. Authorization of payment of future damages to claimants in HEALTH 
care lawsuits. 
Sec. 8. Definitions. 
Sec. 9. Effect on other laws. 
Sec. 10. State flexibility and protection of States’ rights. 
Sec. 11. Applicability; effective date. 
SEC. 2. FINDINGS AND PURPOSE. 
(a) FINDINGS.— 
(1) EFFECT
ON
HEALTH
CARE
ACCESS
AND 
COSTS.—Congress finds that our current civil justice 
system is adversely affecting patient access to health 
care services, better patient care, and cost-efficient 
health care, in that the health care liability system is 
a costly and ineffective mechanism for resolving 
claims of health care liability and compensating in-
jured patients, and is a deterrent to the sharing of in-
formation among health care professionals which im-
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pedes efforts to improve patient safety and quality of 
care. 
(2) EFFECT ON INTERSTATE COMMERCE.—Con-
gress finds that the health care and insurance indus-
tries are industries affecting interstate commerce and 
the health care liability litigation systems existing 
throughout the United States are activities that affect 
interstate commerce by contributing to the high costs 
of health care and premiums for health care liability 
insurance purchased by health care system providers. 
(3) EFFECT ON FEDERAL SPENDING.—Congress 
finds that the health care liability litigation systems 
existing throughout the United States have a signifi-
cant effect on the amount, distribution, and use of 
Federal funds because of— 
(A) the large number of individuals who re-
ceive health care benefits under programs oper-
ated 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 to provide them with 
health insurance benefits; and 
(C) the large number of health care pro-
viders who provide items or services for which 
the Federal Government makes payments. 
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(b) PURPOSE.—It is the purpose of this Act to imple-
ment reasonable, comprehensive, and effective health care 
liability reforms designed to— 
(1) improve the availability of health care serv-
ices in cases in which health care liability actions 
have been shown to be a factor in the decreased avail-
ability of services; 
(2) reduce the incidence of ‘‘defensive medicine’’ 
and lower the cost of health care liability insurance, 
all of which contribute to the escalation of health care 
costs; 
(3) ensure that persons with meritorious health 
care injury claims receive fair and adequate com-
pensation, including reasonable noneconomic dam-
ages; 
(4) improve the fairness and cost-effectiveness of 
our current health care liability system to resolve dis-
putes over, and provide compensation for, health care 
liability by reducing uncertainty in the amount of 
compensation provided to injured individuals; and 
(5) provide an increased sharing of information 
in the health care system which will reduce unin-
tended injury and improve patient care. 
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SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 
The time for the commencement of a health care law-
suit shall be 3 years after the date of manifestation 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 com-
mencement of a health care lawsuit exceed 3 years after the 
date of manifestation 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 per-
son of the injured person. 
Actions by a minor shall be commenced within 3 years from 
the date of the alleged manifestation of injury except that 
actions by a minor under the full age of 6 years shall be 
commenced within 3 years of manifestation of injury or 
prior to the minor’s 8th birthday, whichever provides a 
longer period. Such time limitation shall be tolled for mi-
nors for any period during which a parent or guardian 
and a health care provider or health care organization have 
committed fraud or collusion in the failure to bring an ac-
tion on behalf of the injured minor. 
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SEC. 4. 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 claim-
ant’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, may be as much as $250,000, regardless of the 
number of parties against whom the action is brought or 
the number of separate claims or actions brought with re-
spect to the same injury. 
(c) NO DISCOUNT OF AWARD FOR NONECONOMIC DAM-
AGES.—For purposes of applying the limitation in sub-
section (b), future noneconomic damages shall not be dis-
counted 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 amend-
ment of the judgment after entry of judgment, and such re-
duction shall be made before accounting for any other re-
duction 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 non-
economic damages shall be reduced first. 
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(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 liabil-
ity is rendered as to any party, a separate judgment shall 
be rendered against each such party for the amount allo-
cated 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. 
SEC. 5. MAXIMIZING PATIENT RECOVERY. 
(a) COURT SUPERVISION OF SHARE OF DAMAGES AC-
TUALLY 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 inter-
ests of justice and principles of equity. In no event shall 
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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 re-
covered 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 dis-
pute resolution. In a health care lawsuit involving a minor 
or incompetent person, a court retains the authority to au-
thorize or approve a fee that is less than the maximum per-
mitted under this section. The requirement for court super-
vision in the first two sentences of subsection (a) applies 
only in civil actions. 
SEC. 6. PUNITIVE DAMAGES. 
(a) IN GENERAL.—Punitive damages may, if other-
wise permitted by applicable State or Federal law, be 
awarded against any person in a health care lawsuit only 
if it is proven by clear and convincing evidence that such 
person acted with malicious intent to injure the claimant, 
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or that such person deliberately failed to avoid unnecessary 
injury that such person knew the claimant was substan-
tially certain to suffer. In any health care lawsuit where 
no judgment for compensatory damages is rendered against 
such person, no punitive damages may be awarded with 
respect to the claim in such lawsuit. No demand for puni-
tive damages shall be included in a health care lawsuit as 
initially filed. A court may allow a claimant to file an 
amended pleading for punitive damages only upon a mo-
tion by the claimant and after a finding by the court, upon 
review of supporting and opposing affidavits or after a 
hearing, after weighing the evidence, that the claimant has 
established by a substantial probability that the claimant 
will prevail on the claim for punitive damages. At the re-
quest of any party in a health care lawsuit, the trier of 
fact shall consider in a separate proceeding— 
(1) whether punitive damages are to be awarded 
and the amount of such award; and 
(2) the amount of punitive damages following a 
determination of punitive liability. 
If a separate proceeding is requested, evidence relevant only 
to the claim for punitive damages, as determined by appli-
cable State law, shall be inadmissible in any proceeding 
to determine whether compensatory damages are to be 
awarded. 
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(b) DETERMINING AMOUNT OF PUNITIVE DAMAGES.— 
(1) FACTORS CONSIDERED.—In determining the 
amount of punitive damages, if awarded, in a health 
care lawsuit, the trier of fact shall consider only the 
following— 
(A) the severity of the harm caused by the 
conduct of such party; 
(B) the duration of the conduct or any con-
cealment of it by such party; 
(C) the profitability of the conduct to such 
party; 
(D) the number of products sold or medical 
procedures rendered for compensation, as the 
case may be, by such party, of the kind causing 
the harm complained of by the claimant; 
(E) any criminal penalties imposed on such 
party, as a result of the conduct complained of 
by the claimant; and 
(F) the amount of any civil fines assessed 
against such party as a result of the conduct 
complained of by the claimant. 
(2) MAXIMUM AWARD.—The amount of punitive 
damages, if awarded, in a health care lawsuit may be 
as much as $250,000 or as much as two times the 
amount of economic damages awarded, whichever is 
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greater. The jury shall not be informed of this limita-
tion. 
(c) NO PUNITIVE DAMAGES
FOR PRODUCTS THAT 
COMPLY WITH FDA STANDARDS.— 
(1) IN GENERAL.— 
(A) No punitive damages may be awarded 
against the manufacturer or distributor of a 
medical product, or a supplier of any component 
or raw material of such medical product, based 
on a claim that such product caused the claim-
ant’s harm where— 
(i)(I) such medical product was subject 
to premarket approval, clearance, or licen-
sure by the Food and Drug Administration 
with respect to the safety of the formulation 
or performance of the aspect of such medical 
product which caused the claimant’s harm 
or the adequacy of the packaging or labeling 
of such medical product; and 
(II) such medical product was so ap-
proved, cleared, or licensed; or 
(ii) such medical product is generally 
recognized among qualified experts as safe 
and effective pursuant to conditions estab-
lished by the Food and Drug Administra-
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tion and applicable Food and Drug Admin-
istration regulations, including without 
limitation those related to packaging and 
labeling, unless the Food and Drug Admin-
istration has determined that such medical 
product was not manufactured or distrib-
uted in substantial compliance with appli-
cable Food and Drug Administration stat-
utes and regulations. 
(B) RULE
OF
CONSTRUCTION.—Subpara-
graph (A) may not be construed as establishing 
the obligation of the Food and Drug Administra-
tion to demonstrate affirmatively that a manu-
facturer, distributor, or supplier referred to in 
such subparagraph meets any of the conditions 
described in such subparagraph. 
(2) LIABILITY OF HEALTH CARE PROVIDERS.—A 
health care provider who prescribes, or who dispenses 
pursuant to a prescription, a medical product ap-
proved, licensed, or cleared by the Food and Drug Ad-
ministration shall not be named as a party to a prod-
uct 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. Nothing in this paragraph prevents a court 
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