I
104TH CONGRESS
1ST SESSION
H. R. 352
To establish uniform national standards for the resolution of medical
malpractice claims, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
JANUARY 4, 1995
Mr. PORTER introduced the following bill; which was referred to the
Committee on the Judiciary
A BILL
To establish uniform national standards for the resolution
of medical malpractice claims, and for other purposes.
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
‘‘Medical Malpractice Fairness Act’’.
(b) TABLE OF CONTENTS.—The table of contents of
this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings; purpose.
TITLE I—UNIFORM STANDARDS FOR MALPRACTICE CLAIMS
Sec. 101. Applicability.
Sec. 102. Requirement for initial resolution of action through alternative dis-
pute resolution.
Sec. 103. Procedural requirements for filing of actions.
Sec. 104. Treatment of noneconomic and punitive damages.
Sec. 105. Periodic payments for future losses.
Sec. 106. Treatment of attorney’s fees and other costs.
Sec. 107. Uniform statute of limitations.
Sec. 108. Special provision for certain obstetric services.
Sec. 109. Optional application of practice guidelines.
Sec. 110. Jurisdiction of Federal courts.
Sec. 111. Preemption.
TITLE II—REQUIREMENTS FOR STATE ALTERNATIVE DISPUTE
RESOLUTION SYSTEMS (ADR)
Sec. 201. Basic requirements.
Sec. 202. Certification of State systems; applicability of alternative Federal sys-
tem.
Sec. 203. Reports on implementation and effectiveness of alternative dispute
resolution systems.
TITLE III—DEFINITIONS
Sec. 301. Definitions.
SEC. 2. FINDINGS; PURPOSE.
(a) FINDINGS.—Congress finds that—
(1) the costs of health care consume more than
14 percent of the Gross Domestic Product of the
United States, significantly affecting interstate com-
merce and the budget of the Federal Government;
(2) claims for medical malpractice are a signifi-
cant factor in the cost of health care and cause phy-
sicians, hospitals, and other health care providers to
undertake diagnostic tests and procedures partly as
defensive measures against the possibility of mal-
practice claims;
(3) the health care and insurance industries are
industries affecting interstate commerce and the
medical malpractice litigation systems existing
throughout the United States affect interstate com-
merce by contributing to the high cost of health care
and premiums for malpractice insurance purchased
by health care providers; and
(4) the Federal Government has a major inter-
est in health care as a direct provider of health care
and as a source of payment for health care, and has
a demonstrated interest in assessing the quality of
care, access to care, and the costs of care through
the evaluative activities of several Federal agencies.
(b) PURPOSE.—It is the purpose of this Act to—
(1) develop alternative dispute resolution proce-
dures to attain a more efficient, expeditious, and eq-
uitable resolution of health care malpractice dis-
putes;
(2) enhance general knowledge concerning the
benefits of different forms of alternative dispute res-
olution mechanisms; and
(3) establish uniformity and curb excesses in
the State-based medical liability systems through
Federally mandated reforms.
TITLE I—UNIFORM STANDARDS
FOR MALPRACTICE CLAIMS
SEC. 101. APPLICABILITY.
Except as provided in section 111, this Act shall
apply to any medical malpractice liability action brought
in a Federal or State court, and to any medical mal-
practice claim subject to an alternative dispute resolution
system, that is initiated on or after January 1, 1997.
SEC. 102. REQUIREMENT FOR INITIAL RESOLUTION OF AC-
TION THROUGH ALTERNATIVE DISPUTE RES-
OLUTION.
(a) IN GENERAL.—
(1) STATE CASES.—A medical malpractice li-
ability action may not be brought in any State court
during a calendar year unless the medical mal-
practice claim that is the subject of the action has
been initially resolved under an alternative dispute
resolution system certified for the year by the Sec-
retary under section 202(a), or, in the case of a
State in which such a system is not in effect for the
year, under the alternative Federal system estab-
lished under section 202(b).
(2) FEDERAL DIVERSITY ACTIONS.—A medical
malpractice liability action may not be brought in
any Federal court under section 1332 of title 28,
United States Code, during a calendar year unless
the medical malpractice claim that is the subject of
the action has been initially resolved under the alter-
native dispute resolution system referred to in para-
graph (1) that applied in the State whose law ap-
plies in such action.
(3) CLAIMS AGAINST UNITED STATES.—
(A) ESTABLISHMENT
OF
PROCESS
FOR
CLAIMS.—The Attorney General shall establish
an alternative dispute resolution process for the
resolution of tort claims consisting of medical
malpractice claims brought against the United
States under chapter 171 of title 28, United
States Code. Under such process, the resolution
of a claim shall occur after the completion of
the administrative claim process applicable to
the claim under section 2675 of such title.
(B) REQUIREMENT FOR INITIAL RESOLU-
TION UNDER PROCESS.—A medical malpractice
liability action based on a medical malpractice
claim described in subparagraph (A) may not
be brought in any Federal court unless the
claim has been initially resolved under the alter-
native dispute resolution process established by
the Attorney General under such subparagraph.
(b) INITIAL
RESOLUTION
OF
CLAIMS
UNDER
ADR.—For purposes of subsection (a), an action is ‘‘ini-
tially resolved’’ under an alternative dispute resolution
system if—
(1) the ADR reaches a decision on whether the
defendant is liable to the plaintiff for damages; and
(2) if the ADR determines that the defendant
is liable, the ADR reaches a decision on the amount
of damages assessed against the defendant.
(c) LEGAL EFFECT OF UNCONTESTED ADR DECI-
SION.—If no party files a notice of intent to contest a deci-
sion reached under an alternative dispute resolution sys-
tem pursuant to section 103(a)(1), the decision shall be
enforced by a court of competent jurisdiction in the same
manner as the verdict of a medical malpractice liability
action adjudicated in a State or Federal trial court.
SEC. 103. PROCEDURAL REQUIREMENTS FOR FILING OF
ACTIONS.
(a) PROCEDURES FOR FILING ACTIONS AFTER DECI-
SION.—
(1) NOTICE
OF
INTENT
TO
CONTEST
DECI-
SION.—Not later than 60 days after a decision is is-
sued with respect to a medical malpractice claim
under an alternative dispute resolution system, each
party affected by the decision shall submit a sealed
statement to a court of competent jurisdiction indi-
cating whether or not the party intends to contest
the decision.
(2) DEADLINE FOR FILING ACTION.—A medical
malpractice liability action may not be brought by a
party unless—
(A) the party has filed the notice of intent
required by paragraph (1); and
(B) the party files the action in a court of
competent jurisdiction not later than 90 days
after the decision resolving the medical mal-
practice claim that is the subject of the action
is issued under the applicable alternative dis-
pute resolution system.
(3) COURT
OF
COMPETENT
JURISDICTION.—
For purposes of this subsection, the term ‘‘court of
competent jurisdiction’’ means—
(A) with respect to actions filed in a State
court, the appropriate State trial court; and
(B) with respect to actions filed in a Fed-
eral court, the appropriate United States dis-
trict court.
(b) CERTIFICATE OF MERIT.—
(1) IN GENERAL.—Each individual who files a
notice of intent to contest a decision under the alter-
native dispute resolution system pursuant to sub-
section (a)(1) shall, not later than 90 days after the
applicable medical malpractice liability action is
filed—
(A) submit a certificate of merit described
in subsection (b); or
(B) post a surety (or equivalent security)
bond of $4,000 (or, during the 45-day period
that begins on the date the action is filed, a
cost bond of $2,000) with the court.
(2) EXTENSION OF DEADLINE.—On the motion
of any party to the action or upon a written agree-
ment of the parties filed with the court, the court
may extend the deadline specified in paragraph (1)
for a period not to exceed 30 days.
(3) WAIVER FOR GOOD CAUSE.—The court may
waive the application of paragraph (1) to a plaintiff
if the plaintiff shows good cause that such para-
graph should not apply.
(4) CERTIFICATE
OF
MERIT
DESCRIBED.—In
this subsection, a ‘‘certificate of merit’’ means—
(A) with respect to a plaintiff, an affidavit
declaring that the individual (or the individual’s
attorney) has obtained a written opinion from a
medical expert who is knowledgeable of the rel-
evant medical issues involved in the action that
the defendant was negligent and the defend-
ant’s conduct was a proximate cause of the al-
leged injury that is the subject of the action;
and
(B) with respect to a defendant, an affida-
vit declaring that the individual (or the individ-
ual’s attorney) has obtained a written opinion
from a medical expert who is knowledgeable of
the relevant medical issues involved in the ac-
tion that the defendant followed the appropriate
standards or procedures and exercised due care,
and that the defendant’s conduct was not the
proximate cause of the alleged injury that is the
subject of the action.
(c) EFFECT OF FAILURE TO MEET REQUIREMENT
TO FILE CERTIFICATE.—If an individual fails to file a cer-
tificate of merit with respect to a medical malpractice li-
ability action under subsection (b)—
(1) if the individual is a plaintiff, the court
shall dismiss the action without prejudice to the
refiling of the action by the individual;
(2) if the individual is a defendant, the court
shall award judgment to the plaintiff based on the
plaintiff’s pleadings; and
(3) the court shall require the individual to pay
any court costs incurred by the opposing parties as
a result of the filing of the action.
(d) JUDICIAL NOTICE OF DECISION UNDER ADR
SYSTEM.—A medical malpractice liability action brought
after a decision on the claim that is the subject of the
action has been reached under an alternative dispute reso-
lution system shall be tried de novo, except that the court
shall take judicial notice of such decision and (in the case
of an action tried by a jury) shall read the decision to
the jury prior to any opening statements and make the
decision available to the jury during the trial.
SEC. 104. TREATMENT OF NONECONOMIC AND PUNITIVE
DAMAGES.
(a) LIMITATION ON NONECONOMIC DAMAGES.—The
total amount of noneconomic damages that may be award-
ed to a claimant and the members of the claimant’s family
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 against
whom the action is brought or the number of actions
brought with respect to the injury.
(b) TREATMENT OF PUNITIVE DAMAGES AWARDED
AGAINST MANUFACTURER OF MEDICAL PRODUCT.—
(1) LIMITATION ON AMOUNT OF AWARD.—The
total amount of punitive or exemplary damages that
may be awarded with respect to an injury which is
the subject of a medical malpractice liability action
may not exceed twice the total amount of other dam-
ages awarded with respect to the injury.
(2) DISTRIBUTION
OF
AWARD.—Of the total
amount of any punitive damages awarded in a medi-
cal malpractice liability action, 50 percent shall be
paid to the claimant and 50 percent shall be paid to
the State in which the action is brought (or, in a
case brought in Federal court, in the State in which
the health care services that caused the injury that
is the subject of the action were provided) for the
purposes of carrying out the activities described in
paragraph (3).
(3) ACTIVITIES DESCRIBED.—A State shall use
amounts paid pursuant to paragraph (2) to carry
out activities to assure the safety and quality of
health care services provided in the State, including
(but not limited to)—
(A) implementing health care quality as-
surance programs;
(B) carrying out programs to reduce mal-
practice-related costs for providers volunteering