I 
111TH CONGRESS 
2D SESSION 
H. R. 5690 
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, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JULY 1, 2010 
Mr. GINGREY of Georgia (for himself, Mr. FLEMING, Mr. SMITH of Texas, Mr. 
KLINE of Minnesota, Mr. HALL of Texas, Mr. BILBRAY, Mr. MARCHANT, 
Mr. BISHOP of Utah, Mr. FRANKS of Arizona, Mr. ROONEY, Mr. SHAD-
EGG, Mr. LEE
of New York, Mrs. MCMORRIS
RODGERS, Mrs. 
BLACKBURN, Mr. ROE of Tennessee, Mr. KINGSTON, Mr. COLE, Mr. 
CASSIDY, Mr. PITTS, Mr. WESTMORELAND, Mr. LATTA, Mr. BONNER, 
Mr. LINDER, Mr. BOUSTANY, Mr. GRIFFITH, Mr. TIM MURPHY of Penn-
sylvania, Mr. BARTLETT, and Mr. DENT) 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 subse-
quently determined by the Speaker, in each case for consideration of such 
provisions as fall within the jurisdiction of the committee concerned 
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, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
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SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Meaningful End to Defensive Medicine & Aimless Law-
suits (MedMal) Act of 2010’’. 
(b) TABLE OF CONTENTS.—The table of contents for 
this Act is as follows: 
Sec. 1. Short title; table of contents. 
Sec. 2. Findings; purpose. 
Sec. 3. Health care lawsuit statute of limitations. 
Sec. 4. Early offer. 
Sec. 5. Collateral source benefits. 
Sec. 6. Benevolent gesture or admission of fault by a health care provider. 
Sec. 7. Fair share rule. 
Sec. 8. Punitive damages. 
Sec. 9. Authorization of payment of future damages to claimants in health care 
lawsuits. 
Sec. 10. Liability of health care providers for FDA-approved products. 
Sec. 11. Expert Witness Standards. 
Sec. 12. Protection of States’ rights and effect on other laws. 
Sec. 13. Definitions. 
Sec. 14. Applicability. 
SEC. 2. FINDINGS; PURPOSE. 
(a) FINDINGS.— 
(1) EFFECT
ON
HEALTH
CARE
ACCESS
AND 
COSTS.—Congress finds that the United States civil 
justice system adversely affects patient access to 
health care services, the quality of patient care, and 
the cost-efficiency of health care because the health 
care liability system is costly, ineffective, and a de-
terrent to the sharing of information among health 
care professionals, which impedes efforts to improve 
patient safety and quality of care. 
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(2) EFFECT
ON
INTERSTATE
COMMERCE.— 
Congress finds that— 
(A) the health care and insurance indus-
tries affect interstate commerce; and 
(B) the health care liability litigation sys-
tems throughout the United States affect inter-
state commerce by contributing to the high cost 
of health care and premiums for health care li-
ability insurance purchased by health care sys-
tem providers. 
(3) EFFECT
ON
FEDERAL
SPENDING.—Con-
gress finds that the health care liability litigation 
systems 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 
receive health care benefits under programs op-
erated 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 lawsuits have been 
shown to be a factor in the decreased availability of 
services; 
(2) reduce the incidence of ‘‘defensive medi-
cine’’ and lower the cost of health care liability in-
surance, 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 
disputes over health care liability by reducing uncer-
tainty in the amount of compensation provided to in-
jured individuals; and 
(5) increase the sharing of information in the 
health care system to reduce unintended injury and 
improve patient care. 
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SEC. 3. HEALTH CARE LAWSUIT STATUTE OF LIMITATIONS. 
(a) STATUTE OF LIMITATIONS FOR HEALTH CARE 
LAWSUIT.—Except as provided under subsection (b), a 
health care lawsuit is barred unless it is commenced before 
the earlier of— 
(1) the expiration of the 3-year period begin-
ning on the date of manifestation of injury; or 
(2) the expiration of the 1-year period begin-
ning on the date on which the claimant discovers, or 
through the use of reasonable diligence should have 
discovered, the injury. 
(b) TOLLING OF STATUTE OF LIMITATIONS.—The 
statute of limitations under subsection (a) may be tolled 
for any of the following: 
(1) Proof of fraud. 
(2) Intentional concealment of information nec-
essary for a claimant to file a health care lawsuit. 
(3) The presence of a foreign body, which has 
no therapeutic or diagnostic purpose or effect, in the 
person of the injured person that is related to the 
health care liability claim. 
(c) APPLICABILITY.—This section shall not apply to 
any health care lawsuit arising from an injury occurring 
before the date of the enactment of this Act. 
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SEC. 4. EARLY OFFER. 
(a) IN GENERAL.—If a claimant rejects a qualified 
early offer from a defendant in a health care lawsuit, the 
amount of noneconomic damages that may be awarded 
against that defendant in the lawsuit may not exceed 
$350,000. 
(b) QUALIFIED EARLY OFFER.—In this section, the 
term ‘‘qualified early offer’’ means, with respect to a 
health care lawsuit, a reasonable offer that— 
(1) is made by a defendant to a claimant in 
order to settle the health care liability claim which 
is the subject of the lawsuit; 
(2) provides for the periodic payment to the 
claimant of net economic damages as such damages 
accrue, for which the defendant is responsible, to the 
claimant, to the extent that such damages are not 
already covered by a collateral source; 
(3) provides for payment of the reasonable at-
torney’s fees of the claimant; 
(4) is made to the claimant not later than 180 
days after the date such lawsuit is commenced; and 
(5) allows the claimant to accept or reject such 
offer within 30 days after the date on which such 
offer is made. 
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(c) CALCULATION OF AWARD.—If a claimant rejects 
a qualified early offer from a defendant in a health care 
lawsuit— 
(1) an award for noneconomic damages in ex-
cess of $350,000 shall be reduced to such amount ei-
ther before the entry of judgment, or by amendment 
of the judgment after entry of judgment, and such 
reduction shall be made before accounting for any 
other reduction in damages required by law; and 
(2) in a case in which separate awards are ren-
dered for past and future noneconomic damages, the 
future noneconomic damages shall be reduced first. 
(d) ATTORNEY’S FEES.—If a qualified early offer is 
rejected and a judgment is subsequently entered against 
the offeree in that health care lawsuit, the offeree shall 
be liable for the attorney’s fees of the offeror. 
(e) NO JURY NOTIFICATION.—If a claimant rejects 
a qualified early offer, the jury shall not be informed about 
the maximum award for noneconomic damages. 
(f) EARLY OFFER EVIDENCE INADMISSIBLE.—In 
any health care lawsuit, a qualified early offer shall be 
inadmissible as evidence of admission of liability or as evi-
dence of an admission against interest. 
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SEC. 5. COLLATERAL SOURCE BENEFITS. 
(a) EVIDENCE OF COLLATERAL SOURCE BENEFITS 
ADMISSIBLE.—In any health care lawsuit involving injury 
or wrongful death, a party may introduce evidence of col-
lateral source benefits. 
(b) 
COLLATERAL
SOURCE
BENEFITS
INTRO-
DUCED.—If a party elects to introduce evidence of collat-
eral source benefits, an opposing party may introduce evi-
dence of an amount paid or contributed or reasonably like-
ly to be paid or contributed in the future by or on behalf 
of the opposing party in order to secure such collateral 
source benefits. 
(c) PROVIDERS OF COLLATERAL SOURCE BENEFITS 
BARRED FROM RECOVERY.—In any health care lawsuit 
involving injury or wrongful death, a provider of collateral 
source benefits may not— 
(1) recover an amount against the claimant; 
(2) receive a lien or credit against the claim-
ant’s recovery; or 
(3) be equitably or legally subrogated to the 
rights of the claimant. 
(d) RECOVERY DEFINED.—In this section, the term 
‘‘recovery’’ means, with respect to a health care liability 
claim, the net sum recovered by a claimant after deducting 
any disbursements or costs incurred in connection with 
prosecution or settlement of the claim, including all costs 
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paid or advanced by any person, but does not include costs 
of health care incurred by the claimant or the charges for 
legal services of the claimant’s attorney. 
(e) APPLICABILITY.—Subsection (c) shall not apply 
in the case of a collateral source benefit for which the Sec-
retary of Health and Human Services or a State or local 
agency administering a State Medicaid plan may recover 
(or expect to recover) any payment made for such benefit 
pursuant to section 1862(b) (42 U.S.C. 1395y(b)) or sec-
tion 1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social 
Security Act. 
SEC. 6. BENEVOLENT GESTURE OR ADMISSION OF FAULT 
BY A HEALTH CARE PROVIDER. 
(a) EVIDENCE INADMISSIBLE.—In any health care 
lawsuit, a benevolent gesture or admission of fault that 
is made by a health care provider, or an employee of a 
health care provider, to the claimant, a relative of the 
claimant, or a representative of the claimant shall be inad-
missible as evidence of admission of liability or as evidence 
of an admission against interest. 
(b) APPLICATION OF RULE.—The rule established 
under subsection (a) applies to a benevolent gesture or ad-
mission of fault by a health care provider to a claimant 
or the claimant’s relative or representative (including any 
such gesture or admission made before the commencement 
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of the health care lawsuit) regarding the claimant’s dis-
comfort, pain, suffering, injury, or death, regardless of the 
cause, including the unanticipated outcome of any treat-
ment, consultation, care, or service provided by such pro-
vider (or by the employees, agents, or contractors of such 
provider) or the omission of such treatment, consultation, 
care, or service. 
(c) APPLICABILITY.—This section shall apply in all 
judicial proceedings commenced after the date of the en-
actment of this Act and, insofar as is just and practicable, 
in all judicial proceedings pending on such date of enact-
ment. 
(d) DEFINITIONS.—In this section: 
(1) BENEVOLENT GESTURE.—The term ‘‘benev-
olent gesture’’ means any statement, affirmation, 
gesture, or conduct, including subsequent remedial 
or preventative measures, expressing apology, sym-
pathy, commiseration, condolence, compassion, or a 
general sense of benevolence that relates solely to 
discomfort, pain, suffering, injury, or death as the 
result of the unanticipated outcome of medical care. 
(2) RELATIVE.—The term ‘‘relative’’ means, 
with respect to a claimant, the claimant’s spouse, 
parent, stepparent, grandparent, child, stepchild, 
grandchild, brother, sister, half-brother, half-sister, 
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spouse’s parents, or any other person who has a 
family-type relationship with the claimant. 
(3) REPRESENTATIVE.—The term ‘‘representa-
tive’’ means a legal guardian, attorney, or an agent 
designated to make medical decisions under a power 
of attorney over health care matters, a health care 
representative who is authorized to make health care 
decisions for a principal under applicable law, a sur-
rogate designated in an advance directive for health 
care, or any person recognized in law or custom as 
an agent. 
(4) UNANTICIPATED
OUTCOME.—The term 
‘‘unanticipated outcome’’ means an outcome of a 
medical treatment or procedure, care, or service that 
differs from the expected or anticipated result. 
SEC. 7. FAIR SHARE RULE. 
(a) LIABILITY.—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. 
(b) ALLOCATION OF DAMAGES.—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. 
(c) DETERMINATION OF RESPONSIBILITY.—For pur-
poses of this section, the trier of fact shall determine the 
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proportion of responsibility of each party for the claim-
ant’s harm. 
SEC. 8. PUNITIVE DAMAGES. 
(a) PUNITIVE DAMAGES AWARD.—Punitive damages 
may be awarded against a defendant in a health care law-
suit for a health care liability claim only if— 
(1) otherwise permitted by applicable State or 
Federal law; 
(2) it is proven by clear and convincing evidence 
that such defendant acted with malicious intent to 
injure the claimant, or that such defendant delib-
erately failed to avoid unnecessary injury that such 
defendant knew the claimant was substantially cer-
tain to suffer; and 
(3) compensatory damages are awarded for 
such claim. 
(b) DEMAND FOR PUNITIVE DAMAGES.— 
(1) COMPLAINT.—A claimant may not file a de-
mand for punitive damages in the original complaint 
for a health care lawsuit. 
(2) AMENDED
COMPLAINT.—A claimant may 
file an amended complaint for punitive damages if 
the court finds, after reviewing supporting and op-
posing affidavits or after a hearing, that the claim-
ant has established by a substantial probability that 
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the claimant will prevail on the claim for punitive 
damages. 
(3) HEARING.— 
(A) REQUEST
FOR
PUNITIVE
DAMAGES 
HEARING.—At the request of any party in a 
health care lawsuit, the trier of fact shall con-
sider in a separate hearing whether punitive 
damages are to be awarded and the amount of 
such award, using the factors listed under sub-
section (c). 
(B) EVIDENCE INADMISSIBLE.—If a sepa-
rate punitive damages hearing is requested, any 
evidence introduced at such hearing that is rel-
evant only to the claim for punitive damages, as 
determined by applicable State law, shall be in-
admissible in any proceeding to determine 
whether compensatory damages are to be 
awarded. 
(c) AMOUNT OF PUNITIVE DAMAGES.— 
(1) FACTORS
CONSIDERED.—In determining 
the amount of punitive damages against a party in 
a health care lawsuit, the trier of fact shall consider, 
where applicable, only the following: 
(A) The severity of the harm caused by the 
conduct of such party. 
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(B) The duration of the conduct or any 
concealment of conduct by such party. 
(C) The profitability of the conduct to such 
party. 
(D) The number of products sold or med-
ical procedures rendered for compensation by 
such party that caused the harm complained of 
by the claimant. 
(E) Any criminal penalties imposed on 
such party, as a result of the conduct com-
plained of by the claimant. 
(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 maximum amount 
of punitive damages that may be awarded in a 
health care lawsuit is $350,000 or two times the 
amount of economic damages awarded, whichever is 
greater. 
(3) NO JURY NOTIFICATION.—The jury shall 
not be informed about the maximum award for puni-
tive damages under paragraph (2). 
(d) MALICIOUS INTENT TO INJURE.—In this section, 
the term ‘‘malicious intent to injure’’ means intentionally 
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causing or attempting to cause physical injury other than 
providing health care goods or services. 
SEC. 9. AUTHORIZATION OF PAYMENT OF FUTURE DAM-
AGES TO CLAIMANTS IN HEALTH CARE LAW-
SUITS. 
(a) IN GENERAL.—In any health care lawsuit, if an 
award of future damages, without 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 judgment, the court shall, at 
the request of any party, enter a judgment ordering that 
the future damages be paid by periodic payments. 
(b) COURT GUIDANCE.—In any health care lawsuit, 
the court may be guided by the Uniform Periodic Payment 
of Judgments Act promulgated by the National Con-
ference of Commissioners on Uniform State Laws. 
(c) APPLICABILITY.—This section applies to all ac-
tions that have not been first set for trial or retrial before 
the effective date of this Act. 
SEC. 10. LIABILITY OF HEALTH CARE PROVIDERS FOR FDA- 
APPROVED PRODUCTS. 
(a) IN GENERAL.—Except as provided in subsection 
(b), a health care provider who prescribes, or who dis-
penses pursuant to a prescription, a medical product ap-
proved, licensed, or cleared by the Food and Drug Admin-
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istration may not be named as a party to a product liabil-
ity lawsuit involving such product and shall not be liable 
to a claimant in a class action involving such product that 
is brought against the manufacturer, distributor, or seller 
of such product. 
(b) CONSOLIDATION
OF CASES.—Nothing in sub-
section (a) prevents a court from consolidating cases in-
volving health care providers and cases involving product 
liability claims against the manufacturer, distributor, or 
seller of a medical product. 
SEC. 11. EXPERT WITNESS STANDARDS. 
(a) REQUIREMENTS.—No individual shall be qualified 
to testify as an expert witness concerning issues of neg-
ligence in any health care lawsuit against a defendant un-
less such individual— 
(1) except as required under subsection (b), is 
a health care professional who— 
(A) is appropriately credentialed or li-
censed in 1 or more States to deliver health 
care services; and 
(B) typically treats the diagnosis or condi-
tion or provides the type of treatment under re-
view; and 
(2) can demonstrate by competent evidence 
that, as a result of training, education, knowledge, 
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and experience in the evaluation, diagnosis, and 
treatment of the disease or injury which is the sub-
ject matter of the lawsuit against the defendant, the 
individual was substantially familiar with applicable 
standards of care and practice as they relate to the 
act or omission which is the subject of the lawsuit 
on the date of the incident. 
(b) PHYSICIAN REVIEW.—In a health care lawsuit, 
if the claim of the plaintiff involved treatment that is rec-
ommended or provided by a physician (allopathic or osteo-
pathic), an individual shall not be qualified to be an expert 
witness under this subsection with respect to issues of neg-
ligence concerning such treatment unless such individual 
is a physician. 
(c) SPECIALTIES AND SUBSPECIALTIES.—With re-
spect to a lawsuit described in subsection (a), a court shall 
not permit an expert in one medical specialty or sub-
specialty to testify against a defendant in another medical 
specialty or subspecialty unless, in addition to a showing 
of substantial familiarity in accordance with subsection 
(a)(2), there is a showing that the standards of care and 
practice in the two specialty or subspecialty fields are simi-
lar. 
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(d) LIMITATION.—The limitations in this subsection 
shall not apply to expert witnesses testifying as to the de-
gree or permanency of medical or physical impairment. 
SEC. 12. PROTECTION OF STATES’ RIGHTS AND EFFECT ON 
OTHER LAWS. 
(a) PREEMPTION OF STATE LAW.—The provisions 
governing health care lawsuits set forth in this Act pre-
empt, subject to subsections (c) and (d), State law to the 
extent that State law prevents the application of any pro-
visions of law established by this Act. 
(b) PREEMPTION OF FEDERAL LAW.—The provisions 
governing health care lawsuits set forth in this Act super-
sede chapters 161 and 171 of title 28, United States Code, 
to the extent that such chapters— 
(1) provide for a greater amount of damages, a 
longer period in which a health care lawsuit may be 
commenced, or a reduced applicability or scope of 
periodic payment of future damages, than provided 
in this Act; or 
(2) prohibit the introduction of evidence regard-
ing collateral source benefits, or mandate or permit 
subrogation or a lien on collateral source benefits. 
(c) PROTECTION OF STATES’ RIGHTS AND OTHER 
LAWS.— 
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