I 
111TH CONGRESS 
1ST SESSION H. R. 4039 
To improve the medical justice system by encouraging the prompt and fair 
resolution of disputes, enhancing the quality of care, ensuring patient 
access to health care services, fostering alternatives to litigation, and 
combating defensive medicine, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
NOVEMBER 6, 2009 
Mr. DENT (for himself, Mr. LEE of New York, and Mr. TIBERI) introduced 
the following bill; which was referred to the Committee on Energy and 
Commerce, and in addition to the Committee on the Judiciary, for a pe-
riod to be subsequently determined by the Speaker, in each case for con-
sideration of such provisions as fall within the jurisdiction of the com-
mittee concerned 
A BILL 
To improve the medical justice system by encouraging the 
prompt and fair resolution of disputes, enhancing the 
quality of care, ensuring patient access to health care 
services, fostering alternatives to litigation, and com-
bating defensive medicine, 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. 
This Act may be cited as the ‘‘Ending Defensive Med-
icine and Encouraging Innovative Reforms Act of 2009’’. 
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SEC. 2. TABLE OF CONTENTS. 
The table of contents is as follows: 
Sec. 1. Short title. 
Sec. 2. Table of contents. 
TITLE I—NATIONWIDE REFORMS 
Subtitle A—In General 
Sec. 101. Authorization of payment of future damages to claimants in health 
care lawsuits. 
Sec. 102. Fair Share Rule. 
Sec. 103. Certificate of Merit. 
Sec. 104. Practice guidelines. 
Sec. 105. Payment determination. 
Sec. 106. Definitions. 
Subtitle B—Safety Net Providers 
Sec. 121. Protection for emergency and related services furnished pursuant to 
EMTALA. 
Subtitle C—Community Health Center Volunteers 
Sec. 131. Protection for health center volunteer practitioners. 
Subtitle D—Disaster Relief Volunteers 
Sec. 141. Protection for disaster relief volunteers. 
TITLE II—STATE REFORM INCENTIVES 
Sec. 201. Public Health Service Act amendment. 
TITLE I—NATIONWIDE REFORMS 
Subtitle A—In General 
SEC. 101. AUTHORIZATION OF PAYMENT OF FUTURE DAM-
AGES TO CLAIMANTS IN HEALTH CARE LAW-
SUITS. 
(a) COMPENSATING
PATIENT
INJURY.—In any 
health care lawsuit, if an award of future damages, with-
out reduction to present value, equaling or exceeding 
$50,000 is made against a party with sufficient insurance 
or other assets to fund a periodic payment of such a judg-
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ment, the court shall, at the request of any party, enter 
a judgment ordering that the future damages be paid by 
periodic payments. In any health care lawsuit, the court 
may be guided by the Uniform Periodic Payment of Judg-
ments Act promulgated by the National Conference of 
Commissioners on Uniform State Laws. 
(b) APPLICABILITY.—This section applies to all ac-
tions which have not been first set for trial or retrial be-
fore the date of enactment of this Act. 
SEC. 102. 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 liability is ren-
dered as to any party, a separate judgment shall be ren-
dered against each such party for the amount allocated 
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. 103. CERTIFICATE OF MERIT. 
(a) PRELIMINARY PROCEDURE.—Within 30 days of 
the filing of a health care lawsuit, the court shall appoint 
a qualified specialist whose appointment is agreed to by 
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one qualified specialist chosen by the claimant and one 
qualified specialist chosen by the defendant. If a qualified 
specialist is not agreed to by the qualified specialist chosen 
by the claimant and the qualified specialist chosen by the 
defendant within such 30 days, then the court shall ap-
point such qualified specialist at its discretion. The quali-
fied specialist appointed by the court shall, within 45 days 
of such appointment, submit to the court an affidavit that 
includes such specialist’s statement of opinion whether, 
based on a review of the available medical record and other 
relevant material, there is a reasonable and meritorious 
cause for the filing of the action against the defendant. 
If such specialist does not submit such affidavit to the 
court within 45 days of such appointment, the court shall 
dismiss such health care lawsuit. Such affidavit shall also 
contain a statement by the qualified specialist of specific 
breaches in the standard of care and the approximate neg-
ligence causation. Such affidavit shall not be admissible 
in any health care lawsuit or other court proceedings, or 
any arbitration proceeding. However, such affidavit, and 
information relevant to the determinations made by such 
specialist in such affidavit, shall be discoverable by the 
plaintiff and the defendant. In the case of multiple defend-
ants, a separate affidavit shall be required for each de-
fendant. The court shall set a reasonable fee that shall 
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be paid by the claimant for the preparation of such affi-
davit by such qualified specialist. The plaintiff’s attorney 
shall be given 90 days to obtain the certificate of merit 
affidavit in cases where the period to file the claim is due 
to expire because of the statute of limitations. If a case 
is filed without a certificate of merit affidavit, dismissal 
of the case is automatic without an extension permitted 
under the applicable statute of limitation exemption provi-
sion. 
(b) LOSER PAYS.—In a health care lawsuit, in the 
event the statement of opinion by a qualified specialist ap-
pointed by the court in an affidavit is that there is no 
reasonable and meritorious cause for the filing of the ac-
tion against the defendant, and the claimant does not sub-
stantially prevail by judgment, settlement, mediation, arbi-
tration, or any other form of alternative dispute resolu-
tion, the court shall order the claimant, or such claimant’s 
attorneys, to pay the costs and reasonable attorneys fees 
incurred by the defendant as a direct result of the health 
care lawsuit in which such qualified specialist’s opinion 
was filed. Claimants and their attorneys shall share liabil-
ity for such costs and reasonable attorneys fees incurred, 
as determined by the court in the interests of justice. 
(c) DEFINITION.—In this section, the term ‘‘qualified 
specialist’’ means, with respect to a health care lawsuit— 
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(1) a health care professional who— 
(A) is appropriately credentialed or li-
censed in one or more States to deliver health 
care services; 
(B) typically treats the diagnosis or condi-
tion or provides the type of treatment under re-
view; 
(C) can demonstrate by competent evi-
dence that, as a result of training, education, 
knowledge, and experience in the evaluation, di-
agnosis, and treatment of the disease or injury 
which is the subject matter of the lawsuit 
against the defendant, the health care profes-
sional is substantially familiar with applicable 
standards of care and practice on the date of 
the incident as they relate to the act or omis-
sion which is the subject of the lawsuit; and 
(D) has not been out of practice for more 
than 5 consecutive years; and 
(2) if the claim in the health care lawsuit in-
volved treatment that is recommended or provided 
by a physician (allopathic or osteopathic), with re-
spect to issues of negligence concerning such treat-
ment, a physician whose medical specialty or sub-
specialty is the same as the defendant’s or in addi-
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tion to a showing of substantial familiarity in ac-
cordance with this section, there is a showing that 
the standards of care and practice in the two spe-
cialty or subspecialty fields are similar. 
SEC. 104. PRACTICE GUIDELINES. 
Notwithstanding any other provision of Federal, 
State, or local law the following shall apply: 
(1) In a health care lawsuit or proceeding 
brought against a health care provider, such pro-
vider shall not be liable for the care provided if, in 
delivering such care, such provider acted consistent 
with accepted clinical practice guidelines established 
by the specialty of which the defendant is board cer-
tified or if guidelines established by the specialty are 
not available, accepted clinical practice guideline list-
ed in the National Guideline Clearinghouse. Non- 
compliance with accepted clinical practice guidelines 
established by the specialty of which the defendant 
is board certified, or if guidelines established by the 
specialty are not available, accepted clinical practice 
guidelines listed in the National Guideline Clearing-
house shall not, in a health care lawsuit or pro-
ceeding brought against a health care provider, con-
stitute a breach of the applicable medical standard 
of care, or be otherwise admissible to prove a breach 
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of the standard of care, negligence or other tortious 
conduct. 
(2) Compliance or non-compliance with regula-
tions, directives, or guidelines established by or on 
behalf of the Secretary of Health and Human Serv-
ices pursuant to authority set forth in title XVIII of 
the Social Security Act (42 U.S.C. 1395–1395ccc) 
shall not, in a health care lawsuit or proceeding 
brought against a health care provider, constitute a 
breach of the medical standard of care, or be other-
wise admissible to prove a breach of the medical 
standard of care, negligence or other tortious con-
duct. 
(3) Compliance or non-compliance with regula-
tions, directives, or guidelines established by or on 
behalf of the Secretary of Health and Human Serv-
ices or any State official or entity administering 
Medicaid programs under title XIX of the Social Se-
curity Act (42 U.S.C. 1396–1396v) and Children’s 
Health Insurance Programs under title XXI of the 
Social Security Act (42 U.S.C. 1397aa–1397jj) shall 
not, in a health care lawsuit or proceeding brought 
against a health care provider, constitute a breach of 
the applicable medical standard of care, or be other-
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wise admissible to prove a breach of the standard of 
care, negligence or other tortious conduct. 
(4) Compliance or non-compliance with Com-
parative Effectiveness Research and any regulations, 
directives, or guidelines based in whole or in part 
upon such research shall not, in a health care law-
suit or proceeding brought against a health care pro-
vider, constitute a breach of the applicable medical 
standard of care, or be otherwise admissible to prove 
the medical standard of care, negligence or other 
tortious conduct. 
SEC. 105. PAYMENT DETERMINATION. 
Notwithstanding any other provision of Federal, 
State, or local law the following shall apply: 
(1) Evidence of payments and reimbursements 
made to health care providers pursuant to title 
XVIII of the Social Security Act (42 U.S.C. 1395– 
1395ccc) and evidence of payment rates, payment 
mechanisms, and payment policies established on or 
behalf of the Secretary of Health and Human Serv-
ices for services provided pursuant to the programs 
set forth in title XVIII of the Social Security Act 
(42 U.S.C. 1395–1395ccc) shall not, in a health care 
lawsuit or proceeding brought against a health care 
provider, constitute a determination that a health 
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care provider has or has not met the medical stand-
ard of care or be otherwise admissible to prove 
breach of the medical standard of care, negligence or 
other tortious conduct. 
(2) Compliance or non-compliance with pay-
ment rates, payment mechanisms, or payment poli-
cies established by or on behalf of the Secretary of 
Health and Human Services or any State official or 
entity administering Medicaid programs under title 
XIX of the Social Security Act (42 U.S.C. 1396– 
1396v) and Children’s Health Insurance Programs 
under title XXI of the Social Security Act (42 
U.S.C. 1397aa–1397jj) shall not, in a health care 
lawsuit or proceeding brought against a health care 
provider, constitute a determination that a health 
care provider has or has not met the applicable med-
ical standard of care or be otherwise admissible to 
prove a breach of the medical standard of care, neg-
ligence or other tortious conduct. 
SEC. 106. DEFINITIONS. 
In this subtitle: 
(1) 
HEALTH
CARE
LAWSUIT.—The 
term 
‘‘health care lawsuit’’ means any health care liability 
claim concerning the provision of health care goods 
or services or any medical product affecting inter-
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