I 
111TH CONGRESS 
1ST SESSION H. R. 1468 
To provide health care liability reform, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
MARCH 12, 2009 
Mr. BURGESS introduced the following bill; which was referred to the 
Committee on the Judiciary 
A BILL 
To provide health care liability reform, 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 Justice Act of 2009’’. 
(b) TABLE OF CONTENTS.—The table of contents of 
this Act is as follows: 
Sec. 1. Short title; table of contents. 
Sec. 2. Cap on non-economic damages against health care practitioners. 
Sec. 3. Cap on non-economic damages against health care institutions. 
Sec. 4. Cap, in wrongful death cases, on total damages against any single 
health care practitioner. 
Sec. 5. Limitation of insurer liability when insurer rejects certain settlement of-
fers. 
Sec. 6. Mandatory jury instruction on cap on damages. 
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Sec. 7. Determination of negligence; mandatory jury instruction. 
Sec. 8. Expert reports required to be served in civil actions. 
Sec. 9. Expert opinions relating to physicians may be provided only by actively 
practicing physicians. 
Sec. 10. Payment of future damages on periodic or accrual basis. 
Sec. 11. Unanimous jury required for punitive or exemplary damages. 
Sec. 12. Proportionate liability. 
Sec. 13. Defense-initiated settlement process. 
Sec. 14. Statute of limitations; statute of repose. 
Sec. 15. Limitation on liability for Good Samaritans providing emergency 
health care. 
Sec. 16. Definitions. 
SEC. 
2. 
CAP 
ON 
NON-ECONOMIC 
DAMAGES 
AGAINST 
HEALTH CARE PRACTITIONERS. 
When an individual is injured or dies as the result 
of health care, a person entitled to non-economic damages 
may not recover, from the class of liable health care practi-
tioners (regardless of the theory of liability), more than 
$250,000 such damages. 
SEC. 
3. 
CAP 
ON 
NON-ECONOMIC 
DAMAGES 
AGAINST 
HEALTH CARE INSTITUTIONS. 
When an individual is injured or dies as the result 
of health care, a person entitled to non-economic damages 
may not recover— 
(1) from any single liable health care institution 
(regardless of the theory of liability), more than 
$250,000 such damages; and 
(2) from the class of liable health care institu-
tions (regardless of the theory of liability), more 
than $500,000 such damages. 
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SEC. 4. CAP, IN WRONGFUL DEATH CASES, ON TOTAL DAM-
AGES AGAINST ANY SINGLE HEALTH CARE 
PRACTITIONER. 
(a) IN GENERAL.—When an individual dies as the 
result of health care, a person entitled to damages may 
not recover, from any single liable health care practitioner 
(regardless of the theory of liability), more than 
$1,400,000 in total damages. 
(b) TOTAL DAMAGES DEFINED.—In this section, the 
term ‘‘total damages’’ includes compensatory damages, 
punitive damages, statutory damages, and any other type 
of damages. 
(c) ADJUSTMENT FOR INFLATION.—For each cal-
endar year after the calendar year of the enactment of 
this Act, the dollar amount referred to in subsection (a) 
shall be adjusted to reflect changes in the Consumer Price 
Index of the Bureau of Labor Statistics of the Department 
of Labor. The adjustment shall be based on the relation-
ship between— 
(1) the Consumer Price Index data most re-
cently published as of January 1 of the calendar 
year of the enactment of this Act; and 
(2) the Consumer Price Index data most re-
cently published as of January 1 of the calendar 
year concerned. 
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(d) APPLICABILITY
OF ADJUSTMENT.—The dollar 
amount that applies to a recovery is the dollar amount 
for the calendar year during which the amount of the re-
covery is made final. 
SEC. 5. LIMITATION OF INSURER LIABILITY WHEN IN-
SURER REJECTS CERTAIN SETTLEMENT OF-
FERS. 
In a civil action, to the extent the civil action seeks 
damages for the injury or death of an individual as the 
result of health care, when the insurer of a health care 
practitioner or health care institution rejects a reasonable 
settlement offer within policy limits, the insurer is not, by 
reason of that rejection, liable for damages in an amount 
that exceeds the liability of the insured. 
SEC. 6. MANDATORY JURY INSTRUCTION ON CAP ON DAM-
AGES. 
In a civil action tried to a jury, to the extent the civil 
action seeks damages for the injury or death of an indi-
vidual as the result of health care, the court shall instruct 
the jury that the jury is not to consider whether, or to 
what extent, a limitation on damages applies. 
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SEC. 7. DETERMINATION OF NEGLIGENCE; MANDATORY 
JURY INSTRUCTION. 
(a) IN GENERAL.—When an individual is injured or 
dies as the result of health care, liability for negligence 
may not be based solely on a bad result. 
(b) MANDATORY JURY INSTRUCTION.—In a civil ac-
tion tried to a jury, to the extent the civil action seeks 
damages for the injury or death of an individual as the 
result of health care and alleges liability for negligence, 
the court shall instruct the jury as provided in subsection 
(a). 
SEC. 8. EXPERT REPORTS REQUIRED TO BE SERVED IN 
CIVIL ACTIONS. 
(a) SERVICE REQUIRED.—To the extent a pleading 
filed in a civil action seeks damages against a health care 
practitioner for the injury or death of an individual as the 
result of health care, the party filing the pleading shall, 
not later than 120 days after the date on which the plead-
ing was filed, serve on each party against whom such dam-
ages are sought a qualified expert report. 
(b) QUALIFIED EXPERT REPORT.—As used in sub-
section (a), a qualified expert report is a written report 
of a qualified health care expert that— 
(1) includes a curriculum vitae for that expert; 
and 
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(2) sets forth a summary of the expert opinion 
of that expert as to— 
(A) the standard of care applicable to that 
practitioner; 
(B) how that practitioner failed to meet 
that standard of care; and 
(C) the causal relationship between that 
failure and the injury or death of the individual. 
(c) MOTION TO ENFORCE.—A party not served as 
required by subsection (a) may move the court to enforce 
that subsection. On such a motion, the court— 
(1) shall dismiss, with prejudice, the pleading 
as it relates to that party; and 
(2) shall award to that party the attorney fees 
reasonably incurred by that party to respond to that 
pleading. 
(d) USE OF EXPERT REPORT.— 
(1) IN
GENERAL.—Except as otherwise pro-
vided in this section, a qualified expert report served 
under subsection (a) may not, in that civil action— 
(A) be offered by any party as evidence; 
(B) be used by any party in discovery or 
any other pretrial proceeding; or 
(C) be referred to by any party at trial. 
(2) VIOLATIONS.— 
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(A) BY OTHER PARTY.—If paragraph (1) 
is violated by a party other than the party who 
served the report, the court shall, on motion of 
any party or on its own motion, take such 
measures as the court considers appropriate, 
which may include the imposition of sanctions. 
(B) BY SERVING PARTY.—If paragraph (1) 
is violated by the party who served the report, 
paragraph (1) shall no longer apply to any 
party. 
SEC. 9. EXPERT OPINIONS RELATING TO PHYSICIANS MAY 
BE PROVIDED ONLY BY ACTIVELY PRAC-
TICING PHYSICIANS. 
(a) IN GENERAL.—A physician-related opinion may 
be provided only by an actively practicing physician who 
is determined by the court to be qualified on the basis 
of training and experience to render that opinion. 
(b) CONSIDERATIONS REQUIRED.—In determining 
whether an actively practicing physician is qualified under 
subsection (a), the court shall, except on good cause 
shown, consider whether that physician is board-certified, 
or has other substantial training, in an area of medical 
practice relevant to the health care to which the opinion 
relates. 
(c) DEFINITIONS.—In this section: 
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(1) The term ‘‘actively practicing physician’’ 
means an individual who— 
(A) is licensed to practice medicine in the 
United States or, if the individual is a defend-
ant providing a physician-related opinion with 
respect to the health care provided by that de-
fendant, is a graduate of a medical school ac-
credited by the Liaison Committee on Medical 
Education or the American Osteopathic Asso-
ciation; 
(B) is practicing medicine when the opin-
ion is rendered, or was practicing medicine 
when the health care was provided; and 
(C) has knowledge of the accepted stand-
ards of care for the health care to which the 
opinion relates. 
(2) The term ‘‘physician-related opinion’’ means 
an expert opinion as to any one or more of the fol-
lowing: 
(A) The standard of care applicable to a 
physician. 
(B) Whether a physician failed to meet 
such a standard of care. 
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(C) Whether there was a causal relation-
ship between such a failure by a physician and 
the injury or death of an individual. 
(3) The term ‘‘practicing medicine’’ includes 
training residents or students at an accredited 
school of medicine or osteopathy, and serving as a 
consulting physician to other physicians who provide 
direct patient care. 
SEC. 10. PAYMENT OF FUTURE DAMAGES ON PERIODIC OR 
ACCRUAL BASIS. 
(a) IN GENERAL.—When future damages are award-
ed against a health care practitioner to a person for the 
injury or death of an individual as a result of health care, 
and the present value of those future damages is $100,000 
or more, that health care practitioner may move that the 
court order payment on a periodic or accrual basis of those 
damages. On such a motion, the court— 
(1) shall order that payment be made on an ac-
crual basis of future damages described in sub-
section (b)(1); and 
(2) may order that payment be made on a peri-
odic or accrual basis of any other future damages 
that the court considers appropriate. 
(b) FUTURE DAMAGES DEFINED.—In this section, 
the term ‘‘future damages’’ means— 
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(1) the future costs of medical, health care, or 
custodial services; 
(2) noneconomic damages, such as pain and 
suffering or loss of consortium; 
(3) loss of future earnings; and 
(4) any other damages incurred after the award 
is made. 
SEC. 11. UNANIMOUS JURY REQUIRED FOR PUNITIVE OR 
EXEMPLARY DAMAGES. 
When an individual is injured or dies as the result 
of health care, a jury may not award punitive or exemplary 
damages against a health care practitioner or health care 
institution unless the jury is unanimous with regard to 
both the liability of that party for such damages and the 
amount of the award of such damages. 
SEC. 12. PROPORTIONATE LIABILITY. 
When an individual is injured or dies as the result 
of health care and a person is entitled to damages for that 
injury or death, each person responsible is liable only for 
a proportionate share of the total damages that directly 
corresponds to that person’s proportionate share of the 
total responsibility. 
SEC. 13. DEFENSE-INITIATED SETTLEMENT PROCESS. 
(a) IN GENERAL.—In a civil action, to the extent the 
civil action seeks damages for the injury or death of an 
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individual as the result of health care, a health care practi-
tioner or health care institution against which such dam-
ages are sought may serve one or more qualified settle-
ment offers under this section to a person seeking such 
damages. If the person seeking such damages does not ac-
cept such an offer, that person may thereafter serve one 
or more qualified settlement offers under this section to 
the party whose offer was not accepted. 
(b) QUALIFIED SETTLEMENT OFFER.—A qualified 
settlement offer under this section is an offer, in writing, 
to settle the matter as between the offeror and the offeree, 
which— 
(1) specifies that it is made under this section; 
(2) states the terms of settlement; and 
(3) states the deadline within which the offer 
must be accepted. 
(c) EFFECT OF OFFER.—If the offeree of a qualified 
settlement offer does not accept that offer, and thereafter 
receives a judgment at trial that, as between the offeror 
and the offeree, is significantly less favorable than the 
terms of settlement in that offer, that offeree is respon-
sible for those litigation costs reasonably incurred, after 
the deadline stated in the offer, by the offeror to respond 
to the claims of the offeree. 
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