I 
116TH CONGRESS 
1ST SESSION H. R. 3656 
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. 
IN THE HOUSE OF REPRESENTATIVES 
JULY 9, 2019 
Mr. HUDSON (for himself, Mr. MARSHALL, and Mr. BUCSHON) 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 subsequently determined by the Speaker, in each case for consider-
ation 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. 
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 
‘‘Accessible Care by Curbing Excessive lawSuitS Act of 
2019’’ or the ‘‘ACCESS Act of 2019’’. 
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(b) TABLE OF CONTENTS.—The table of contents of 
this Act is as follows: 
Sec. 1. Short title; table of contents. 
Sec. 2. Findings and purpose. 
Sec. 3. Encouraging speedy resolution of claims. 
Sec. 4. Compensating patient injury. 
Sec. 5. Maximizing patient recovery. 
Sec. 6. Additional health benefits. 
Sec. 7. Authorization of payment of future damages to claimants in health care 
lawsuits. 
Sec. 8. Product liability for health care providers. 
Sec. 9. Communications following unanticipated outcome. 
Sec. 10. Notice of intent to commence lawsuit. 
Sec. 11. Affidavit of merit. 
Sec. 12. Expert witness qualifications. 
Sec. 13. Definitions. 
Sec. 14. Effect on other laws. 
Sec. 15. Rules of construction. 
Sec. 16. Effective date. 
SEC. 2. FINDINGS AND PURPOSE. 
(a) FINDINGS.— 
(1) EFFECT
ON
HEALTH
CARE
ACCESS
AND 
COSTS.—Congress finds that the current civil justice 
system is adversely affecting patient access to health 
care services, better patient care, and cost-efficient 
health care, in that the health care liability system 
without reform is a costly and inefficient mechanism 
for resolving claims of health care liability and com-
pensating injured patients, and is a deterrent to the 
sharing of information among health care profes-
sionals which impedes efforts to improve patient 
safety and quality of care. 
(2) EFFECT ON FEDERAL SPENDING.— 
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(A) Congress finds that the health care li-
ability litigation systems existing throughout 
the United States have a significant effect on 
the amount, distribution, and use of Federal 
funds because of— 
(i) the large number of individuals 
who receive health care benefits under pro-
grams operated or financed by the Federal 
Government; 
(ii) the large number of individuals 
who benefit because of the exclusion from 
Federal taxes of the amounts spent to pro-
vide them with health insurance benefits; 
and 
(iii) the large number of health care 
providers who provide items or services for 
which the Federal Government makes pay-
ments. 
(B) Congress finds that the Federal deficit 
would be reduced by $62 billion over the next 
decade if Federal health care liability reforms 
were enacted, as verified by the Congressional 
Budget Office. 
(3) EFFECT
ON
INTERSTATE
COMMERCE.— 
Congress finds that the health care and insurance 
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industries are industries affecting interstate com-
merce and the health care liability litigation systems 
existing throughout the United States are activities 
that affect interstate commerce by contributing to 
the high costs of health care and premiums for 
health care liability insurance purchased by health 
care system providers. 
(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 liability actions 
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, and provide compensation for, health 
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care liability by reducing uncertainty in the amount 
of compensation provided to injured individuals; and 
(5) provide an increased sharing of information 
in the health care system which will reduce unin-
tended injury and improve patient care. 
SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 
(a) STATUTE OF LIMITATIONS.—The time for the 
commencement of a health care lawsuit shall be 3 years 
after the date of injury or 1 year after the claimant dis-
covers, or through the use of reasonable diligence should 
have discovered, the injury, whichever occurs first. In no 
event shall the time for commencement of a health care 
lawsuit exceed 3 years after the date of injury unless tolled 
for any of the following— 
(1) upon proof of fraud; 
(2) intentional concealment; or 
(3) the presence of a foreign body, which has no 
therapeutic or diagnostic purpose or effect, in the 
person of the injured person. 
Actions by a minor shall be commenced within 3 years 
from the date of the injury except that actions by a minor 
under the full age of 6 years shall be commenced within 
3 years of injury, or 1 year after the injury is discovered, 
or through the use of reasonable diligence should have 
been discovered, or prior to the minor’s 8th birthday, 
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whichever provides a longer period. Such time limitation 
shall be tolled for minors for any period during which a 
parent or guardian and a health care provider have com-
mitted fraud or collusion in the failure to bring an action 
on behalf of the injured minor. 
(b) STATE FLEXIBILITY.—No provision of Sub-
section (a) shall be construed to preempt any state law 
(whether effective before, on, or after the date of the en-
actment of this Act) that— 
(1) specifies a time period of less than 3 years 
after the date of injury or less than 1 year after the 
claimant discovers, or through the use of reasonable 
diligence should have discovered, the injury, for the 
filing of a health care lawsuit; 
(2) that specifies a different time period for the 
filing of lawsuits by a minor; 
(3) that triggers the time period based on the 
date of the alleged negligence; or 
(4) establishes a statute of repose for the filing 
of health care lawsuit. 
SEC. 4. COMPENSATING PATIENT INJURY. 
(a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL 
ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 
health care lawsuit, nothing in this Act shall limit a claim-
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ant’s recovery of the full amount of the available economic 
damages, notwithstanding the limitation in subsection (b). 
(b) ADDITIONAL NONECONOMIC DAMAGES.—In any 
health care lawsuit, the amount of noneconomic damages, 
if available, shall not exceed $250,000, regardless of the 
number of parties against whom the action is brought or 
the number of separate claims or actions brought with re-
spect to the same injury. 
(c) NO DISCOUNT OF AWARD FOR NONECONOMIC 
DAMAGES.—For purposes of applying the limitation in 
subsection (b), future noneconomic damages shall not be 
discounted to present value. The jury shall not be in-
formed about the maximum award for noneconomic dam-
ages. An award for noneconomic damages in excess of 
$250,000 shall be reduced either before the entry of judg-
ment, or by amendment of the judgment after entry of 
judgment, and such reduction shall be made before ac-
counting for any other reduction in damages required by 
law. If separate awards are rendered for past and future 
noneconomic damages and the combined awards exceed 
$250,000, the future noneconomic damages shall be re-
duced first. 
(d) 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 
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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 rendered as to any party, a sepa-
rate judgment shall be rendered against each such party 
for the amount allocated to such party. For purposes of 
this section, the trier of fact shall determine the propor-
tion of responsibility of each party for the claimant’s 
harm. 
(e) STATE FLEXIBILITY.—No provision of this sec-
tion shall be construed to preempt any State law (whether 
effective before, on, or after the date of the enactment of 
this Act) that specifies a particular monetary amount of 
economic or noneconomic damages (or the total amount 
of damages) that may be awarded in a health care lawsuit, 
regardless of whether such monetary amount is greater 
or lesser than is provided for under this section. 
SEC. 5. MAXIMIZING PATIENT RECOVERY. 
(a) COURT SUPERVISION OF SHARE OF DAMAGES 
ACTUALLY PAID TO CLAIMANTS.—In any health care law-
suit, the court shall supervise the arrangements for pay-
ment of damages to protect against conflicts of interest 
that may have the effect of reducing the amount of dam-
ages awarded that are actually paid to claimants. In par-
ticular, in any health care lawsuit in which the attorney 
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for a party claims a financial stake in the outcome by vir-
tue of a contingent fee, the court shall have the power 
to restrict the payment of a claimant’s damage recovery 
to such attorney, and to redirect such damages to the 
claimant based upon the interests of justice and principles 
of equity. In no event shall the total of all contingent fees 
for representing all claimants in a health care lawsuit ex-
ceed the following limits: 
(1) Forty percent of the first $50,000 recovered 
by the claimant(s). 
(2) Thirty-three and one-third percent of the 
next $50,000 recovered by the claimant(s). 
(3) Twenty-five percent of the next $500,000 
recovered by the claimant(s). 
(4) Fifteen percent of any amount by which the 
recovery by the claimant(s) is in excess of $600,000. 
(b) APPLICABILITY.—The limitations in this section 
shall apply whether the recovery is by judgment, settle-
ment, mediation, arbitration, or any other form of alter-
native dispute resolution. In a health care lawsuit involv-
ing a minor or incompetent person, a court retains the 
authority to authorize or approve a fee that is less than 
the maximum permitted under this section. The require-
ment for court supervision in the first two sentences of 
subsection (a) applies only in civil actions. 
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(c) STATE FLEXIBILITY.—No provision of this sec-
tion shall be construed to preempt any State law (whether 
effective before, on, or after the date of the enactment of 
this Act) that specifies a lesser percentage or lesser total 
value of damages which may be claimed by an attorney 
representing a claimant in a health care lawsuit. 
SEC. 6. ADDITIONAL HEALTH BENEFITS. 
(a) COLLATERAL SOURCE BENEFITS.—In any health 
care lawsuit involving injury or wrongful death, any party 
may introduce evidence of collateral source benefits. If a 
party elects to introduce such evidence, any opposing party 
may introduce evidence of any amount paid or contributed 
or reasonably likely to be paid or contributed in the future 
by or on behalf of the opposing party to secure the right 
to such collateral source benefits. 
(b) SUBROGATION.—No provider of collateral source 
benefits shall recover any amount against the claimant or 
receive any lien or credit against the claimant’s recovery 
or be equitably or legally subrogated to the right of the 
claimant in a health care lawsuit involving injury or 
wrongful death. 
(c) APPLICABILITY.—This section shall apply to any 
health care lawsuit that is settled as well as a health care 
lawsuit that is resolved by a fact finder. This section shall 
not apply to section 1862(b) (42 U.S.C. 1395y(b)) or sec-
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tion 1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social 
Security Act. 
(d) STATE FLEXIBILITY.—No provision of subsection 
(a) shall be construed to preempt any State law (whether 
effective before, on, or after the date of the enactment of 
this Act) that specifies a mandatory offset of collateral 
source benefits against an award in a health care liability 
lawsuit. 
SEC. 7. 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, in ac-
cordance with 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 effective date of this Act. 
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(c) STATE FLEXIBILITY.—No provision of this sec-
tion shall be construed to preempt any State law (whether 
effective before, on, or after the date of the enactment of 
this Act) that specifies periodic payments for future dam-
ages at any amount other than $50,000 or that mandates 
such payments absent the request of either party. 
SEC. 8. PRODUCT LIABILITY FOR HEALTH CARE PRO-
VIDERS. 
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-
istration shall 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 lawsuit against the manu-
facturer, distributor, or seller of such product. 
SEC. 9. COMMUNICATIONS FOLLOWING UNANTICIPATED 
OUTCOME. 
(a) PROVIDER COMMUNICATIONS.—In any health 
care liability action, any and all statements, affirmations, 
gestures, or conduct expressing apology, fault, sympathy, 
commiseration, condolence, compassion, or a general sense 
of benevolence which are made by a health care provider 
or an employee of a health care provider to the patient, 
a relative of the patient, or a representative of the patient 
and which relate to the discomfort, pain, suffering, injury, 
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or death of the patient as the result of the unanticipated 
outcome of medical care shall be inadmissible for any pur-
pose as evidence of an admission of liability or as evidence 
of an admission against interest. 
(b) STATE FLEXIBILITY.—No provision of this sec-
tion shall be construed to preempt any State law (whether 
effective before, on, or after the date of the enactment of 
this Act) that makes additional communications inadmis-
sible as evidence of an admission of liability or as evidence 
of an admission against interest. 
SEC. 10. NOTICE OF INTENT TO COMMENCE LAWSUIT. 
(a) ADVANCE NOTICE.—A person shall not com-
mence an action against a health care provider unless the 
person has given the health care provider 90 days written 
notice before the action is commenced. 
(b) EXCEPTIONS.—A lawsuit against a health care 
provider filed within 6 months of the statute of limitations 
expiring as to any claimant, or within 1 year of the statute 
of repose expiring as to any claimant, shall be exempt 
from compliance with this section. 
(c) STATE FLEXIBILITY.—No provision of this sec-
tion shall be construed to preempt any State law (whether 
effective before, on, or after the date of the enactment of 
this Act) that establishes a different time period for the 
filing of written notice. 
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SEC. 11. AFFIDAVIT OF MERIT. 
(a) REQUIRED FILING.—Subject to subsection (b), 
the plaintiff in an action alleging medical negligence or, 
if the plaintiff is represented by an attorney, the plaintiff’s 
attorney shall file simultaneously with the health care law-
suit an affidavit of merit signed by a health professional 
who meets the requirements for an expert witness under 
Sec. 12 of this Act. The affidavit of merit shall certify 
that the health professional has reviewed the notice and 
all medical records supplied to him or her by the plaintiff’s 
attorney concerning the allegations contained in the notice 
and shall contain a statement of each of the following: 
(1) The applicable standard of practice or care. 
(2) The health professional’s opinion that the 
applicable standard of practice or care was breached 
by the health professional or health facility receiving 
the notice. 
(3) The actions that should have been taken or 
omitted by the health professional or health facility 
in order to have complied with the applicable stand-
ard of practice or care. 
(4) The manner in which the breach of the 
standard of practice or care was the proximate cause 
of the injury alleged in the notice. 
(5) A listing of the medical records reviewed. 
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