(ii) whenever a judgment of liability is 
rendered as to any such party, a separate 
judgment shall be rendered against each 
such party for the amount allocated to 
such party; and 
(iii) for purposes of this subpara-
graph, the trier of fact shall determine the 
proportion of responsibility of each such 
party for the claimant’s harm. 
(C) SUBSEQUENT REMEDIAL MEASURES.— 
Evidence of subsequent remedial measures to 
an EHR-related adverse event with respect to 
certified EHR technology used or provided by 
the covered entity (including changes to the cer-
tified EHR system, additional training require-
ments, or changes to standard operating proce-
dures) by a covered entity shall not be admis-
sible in health care lawsuits. 
(D) INCREASED BURDEN OF PROOF PRO-
TECTION
FOR
COVERED
ENTITIES.—Punitive 
damages may, if otherwise permitted by appli-
cable State or Federal law, be awarded against 
any covered entity in a health care lawsuit only 
if it is proven by clear and convincing evidence 
that such entity acted with reckless disregard 
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for the health or safety of the claimant. In any 
such health care lawsuit where no judgment for 
compensatory damages is rendered against such 
entity, no punitive damages may be awarded 
with respect to the claim in such lawsuit. 
(E) PROTECTION FROM LIBEL OR SLAN-
DER.—Covered entities and employees, agents 
and representatives of covered entities are im-
mune from civil action for libel or slander aris-
ing from information or entries made in cer-
tified EHR technology and for the transfer of 
such information to another eligible provider, 
hospital or health information exchange, if the 
information, transfer of information, or entries 
were made in good faith and without malice. 
(e) DEFINITIONS.—In this section: 
(1) CLAIMANT.—The term ‘‘claimant’’ means 
any person who brings a health care lawsuit, includ-
ing a person who asserts or claims a right to legal 
or equitable contribution, indemnity, or subrogation, 
arising out of a health care liability claim or action, 
and any person on whose behalf such a claim is as-
serted or such an action is brought, whether de-
ceased, incompetent, or a minor. 
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(2) 
COMPENSATORY
DAMAGES.—The 
term 
‘‘compensatory 
damages’’ 
means 
objectively 
verifiable monetary losses incurred as a result of the 
provisions of, use of, or payment for (or failure to 
provide, use, or pay for) health care services or med-
ical products, such as past and future medical ex-
penses, loss of past and future earnings, cost of ob-
taining domestic services, loss of employment, and 
loss of business or employment opportunities, dam-
ages for physical and emotional pain, suffering, in-
convenience, physical impairment, mental anguish, 
disfigurement, loss of enjoyment in life, loss of soci-
ety and companionship, loss of consortium (other 
than loss of domestic service), hedonic damages, in-
jury to reputation, and all other nonpecuniary losses 
of any kind or nature. Such term includes economic 
damages and noneconomic damages, as such terms 
are defined in this subsection. 
(3) ECONOMIC DAMAGES.—The term ‘‘economic 
damages’’ means objectively verifiable monetary 
losses incurred as a result of the provisions of, use 
of, or payment for (or failure to provide, use, or pay 
for) health care services or medical products, such as 
past and future medical expenses, loss of past and 
future earnings, cost of obtaining domestic services, 
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loss of employment, and loss of business or employ-
ment opportunities. 
(4) CERTIFIED EHR TECHNOLOGY.—The term 
‘‘certified EHR technology’’ has the meaning given 
such term in section 1848(o)(4) of the Social Secu-
rity Act (42 U.S.C. 1395w–4(o)(4)). 
(5) EHR-RELATED
ADVERSE
EVENT.—The 
term ‘‘EHR-related adverse event’’ means, with re-
spect to a provider, a defect, malfunction, or error 
in the certified health information technology or 
electronic health record used by the provider, or in 
the input or output of data maintained through such 
technology or record, that results or could reason-
ably result in harm to a patient. 
(6) 
HEALTH
CARE
LAWSUIT.—The 
term 
‘‘health care lawsuit’’ means any health care liability 
claim concerning the provision of health care items 
or services or any medical product affecting inter-
state commerce, or any health care liability action 
concerning the provision of health care items or 
services or any medical product affecting interstate 
commerce, brought in a State or Federal court or 
pursuant to an alternative dispute resolution system, 
against a health care provider, a health care organi-
zation, or the manufacturer, distributor, supplier, 
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marketer, promoter, or seller of a medical product, 
regardless of the theory of liability on which the 
claim is based, or the number of claimants, plain-
tiffs, defendants, or other parties, or the number of 
claims or causes of action, in which the claimant al-
leges a health care liability claim. Such term does 
not include a claim or action which is based on 
criminal liability; which seeks civil fines or penalties 
paid to Federal, State, or local government; or which 
is grounded in antitrust. 
(7) HEALTH
CARE
LIABILITY
ACTION.—The 
term ‘‘health care liability action’’ means a civil ac-
tion brought in a State or Federal court or pursuant 
to an alternative dispute resolution system, against 
a health care provider, a health care organization, or 
the manufacturer, distributor, supplier, marketer, 
promoter, or seller of a medical product, regardless 
of the theory of liability on which the claim is based, 
or the number of plaintiffs, defendants, or other par-
ties, or the number of causes of action, in which the 
claimant alleges a health care liability claim. 
(8) HEALTH
CARE
LIABILITY
CLAIM.—The 
term ‘‘health care liability claim’’ means a demand 
by any person, whether or not pursuant to alter-
native dispute resolution, against a health care pro-
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vider, health care organization, or the manufacturer, 
distributor, supplier, marketer, promoter, or seller of 
a medical product, including third-party claims, 
cross-claims, counter-claims, or contribution claims, 
which are based upon the provision of, use of, or 
payment for (or the failure to provide, use or pay 
for) health care services or medical products, regard-
less of the theory of liability on which the claim is 
based, or the number of plaintiffs, defendants, or 
other parties, or the number of causes of action. 
(9) HEALTH CARE ORGANIZATION.—The term 
‘‘health care organization’’ means any person or en-
tity which is obligated to provide or pay for health 
benefits under any health plan, including any person 
or entity acting under a contract or arrangement 
with a health care organization to provide or admin-
ister any health benefit. 
(10) HEALTH
CARE
PROVIDER.—The term 
‘‘health care provider’’ means any person or entity 
required by State or Federal laws or regulations to 
be licensed, registered, or certified to provide health 
care services, and being either so licensed, reg-
istered, or certified, or exempted from such require-
ment by other statute or regulation. 
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(11) HEALTH CARE ITEMS OR SERVICES.—The 
term ‘‘health care items or services’’ means any 
items or services provided by a health care organiza-
tion, provider, or by any individual working under 
the supervision of a health care provider, that relates 
to the diagnosis, prevention, or treatment of any 
human disease or impairment, or the assessment or 
care of the health of human beings. 
(12) MALICIOUS
INTENT
TO
INJURE.—The 
term ‘‘malicious intent to injure’’ means inten-
tionally causing or attempting to cause physical in-
jury other than providing health care items or serv-
ices. 
(13) MEDICAL PRODUCT.—The term ‘‘medical 
product’’ means a drug, device, or biological product 
intended for humans, and the terms ‘‘drug’’, ‘‘de-
vice’’, and ‘‘biological product’’ have the meanings 
given such terms in sections 201(g)(1) and 201(h) 
of the Federal Food, Drug, and Cosmetic Act (21 
U.S.C. 321(g)(1) and (h)) and section 351(a) of the 
Public Health Service Act (42 U.S.C. 262(a)), re-
spectively, including any component or raw material 
used therein, but excluding health care services. 
(14) 
NONECONOMIC
DAMAGES.—The 
term 
‘‘noneconomic damages’’ means damages for phys-
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ical impairment, mental anguish, disfigurement, loss 
of enjoyment of life, loss of society and companion-
ship, loss of consortium (other than loss of domestic 
service), hedonic damages, injury to reputation, and 
all other nonpecuniary losses of any kind of nature. 
(15) PATIENT
SAFETY
ORGANIZATION.—The 
term ‘‘patient safety organization’’ has the meaning 
given to such term in section 921 of the Public 
Health Service Act (42 U.S.C. 299b–21). 
(16) PUNITIVE DAMAGES.—The term ‘‘punitive 
damages’’ means damages awarded, for the purpose 
of punishment or deterrence, and not solely for com-
pensatory purposes, against a health care provider, 
health care organization, or a manufacturer, dis-
tributor, or supplier of a medical product. Punitive 
damages are neither economic nor economic dam-
ages. 
(17) 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, the Northern Mariana Is-
lands, the Trust Territory of the Pacific Islands, and 
any other territory or possession of the United 
States, or any political subdivision thereof. 
Æ 
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