Title: Protecting Access to Care Act of 2017
Policy area: Health

Summary:
Protecting Access to Care Act of 2017
This bill establishes provisions governing health care lawsuits where coverage for the care was provided or subsidized by the federal government, including through a subsidy or tax benefit. The bill does not preempt certain state laws and federal vaccine injury laws and rules.
The statute of limitations is three years after the injury or one year after the claimant discovers the injury, whichever occurs first. For a minor, the statute of limitations is three years after the injury, except for a minor under six years old, for whom it is three years after the injury, one year after discovery of the injury, or the minor's eighth birthday, whichever occurs later. These limitations are tolled under certain circumstances.
Noneconomic damages are limited to $250,000. Juries may not be informed of this limitation. Parties are liable for the amount of damages directly proportional to their responsibility. These provisions do not preempt state laws that specify a particular monetary amount of damages.
Courts must supervise the payment of damages and may restrict attorney contingency fees. The bill sets limits on contingency fees.
Certain evidence regarding collateral source benefits (e.g., insurance payments) may be introduced in lawsuits involving injury or wrongful death. Providers of collateral source benefits may not recover any amount from the claimant in such a lawsuit. These provisions do not apply if Medicare is a secondary payer or there is third party liability for Medicaid services.
The bill provides for periodic payment of future damage awards.

[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1215 Introduced in House (IH)]

<DOC>






115th CONGRESS
  1st Session
                                H. R. 1215

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

                           February 24, 2017

 Mr. King of Iowa 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 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.

    Be it enacted by the Senate and House of Representatives 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 ``Protecting Access 
to Care Act of 2017''.
    (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. Definitions.
Sec. 10. Effect on other laws.
Sec. 11. Rules of construction.
Sec. 12. 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 
        compensating injured patients, and is a deterrent to the 
        sharing of information among health care professionals which 
        impedes efforts to improve patient safety and quality of care.
            (2) Effect on federal spending.--
                    (A) Congress finds that the health care liability 
                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 programs 
                        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 provide 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 payments.
                    (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 industries are industries affecting 
        interstate commerce 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 implement 
reasonable, comprehensive, and effective health care liability reforms 
designed to--
            (1) improve the availability of health care services 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 medicine'' and 
        lower the cost of health care liability insurance, 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 compensation, including 
        reasonable noneconomic damages;
            (4) improve the fairness and cost-effectiveness of our 
        current health care liability system to resolve disputes over, 
        and provide compensation for, health 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 unintended 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 discovers, 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, 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 committed fraud or collusion in the failure to bring 
an action on behalf of the injured minor.
    (b) 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--
            (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 claimant'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 
respect 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 
informed about the maximum award for noneconomic damages. An award for 
noneconomic damages in excess of $250,000 shall be reduced either 
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. If separate awards 
are rendered for past and future noneconomic damages and the combined 
awards exceed $250,000, the future noneconomic damages shall be reduced 
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 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 separate 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 proportion of responsibility of each party for the claimant's harm.
    (e) State Flexibility.--No provision of this section 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 lawsuit, the court shall supervise the 
arrangements for payment of damages to protect against conflicts of 
interest that may have the effect of reducing the amount of damages 
awarded that are actually paid to claimants. In particular, in any 
health care lawsuit in which the attorney for a party claims a 
financial stake in the outcome by virtue 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 exceed 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, settlement, mediation, 
arbitration, or any other form of alternative dispute resolution. In a 
health care lawsuit involving 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 requirement for court 
supervision in the first two sentences of subsection (a) applies only 
in civil actions.
    (c) State Flexibility.--No provision of this section 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 section 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 DAMAGES TO CLAIMANTS IN 
              HEALTH CARE LAWSUITS.

    (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 accordance with the Uniform 
Periodic Payment of Judgments Act promulgated by the National 
Conference of Commissioners on Uniform State Laws.
    (b) Applicability.--This section applies to all actions which have 
not been first set for trial or retrial before the effective date of 
this Act.
    (c) State Flexibility.--No provision of this section 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 damages 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 PROVIDERS.

    A health care provider who prescribes, or who dispenses pursuant to 
a prescription, a medical product approved, licensed, or cleared by the 
Food and Drug Administration shall not be named as a party to a product 
liability lawsuit involving such product and shall not be liable to a 
claimant in a class action lawsuit against the manufacturer, 
distributor, or seller of such product.

SEC. 9. DEFINITIONS.

    In this Act:
            (1) Alternative dispute resolution system; adr.--The term 
        ``alternative dispute resolution system'' or ``ADR'' means a 
        system that provides for the resolution of health care lawsuits 
        in a manner other than through a civil action brought in a 
        State or Federal court.
            (2) Claimant.--The term ``claimant'' means any person who 
        brings a health care lawsuit, including a person who asserts or 
        claims a right to legal or equitable contribution, indemnity, 
        or subrogation, arising out of a health care liability claim or 
        action, and any person on whose behalf such a claim is asserted 
        or such an action is brought, whether deceased, incompetent, or 
        a minor.
            (3) Collateral source benefits.--The term ``collateral 
        source benefits'' means any amount paid or reasonably likely to 
        be paid in the future to or on behalf of the claimant, or any 
        service, product, or other benefit provided or reasonably 
        likely to be provided in the future to or on behalf of the 
        claimant, as a result of the injury or wrongful death, pursuant 
        to--
                    (A) any State or Federal health, sickness, income-
                disability, accident, or workers' compensation law;
                    (B) any health, sickness, income-disability, or 
                accident insurance that provides health benefits or 
                income-disability coverage;
                    (C) any contract or agreement of any group, 
                organization, partnership, or corporation to provide, 
                pay for, or reimburse the cost of medical, hospital, 
                dental, or income-disability benefits; and
                    (D) any other publicly or privately funded program.
            (4) Contingent fee.--The term ``contingent fee'' includes 
        all compensation to any person or persons which is payable only 
        if a recovery is effected on behalf of one or more claimants.
            (5) Economic damages.--The term ``economic damages'' means 
        objectively verifiable monetary losses incurred as a result of 
        the provision or use of (or failure to provide or use) health 
        care services or medical products, such as past and future 
        medical expenses, loss of past and future earnings, cost of 
        obtaining domestic services, loss of employment, and loss of 
        business or employment opportunities, unless otherwise defined 
        under applicable State law. In no circumstances shall damages 
        for health care services or medical products exceed the amount 
        actually paid or incurred by or on behalf of the claimant.
            (6) Future damages.--The term ``future damages'' means any 
        damages that are incurred after the date of judgment, 
        settlement, or other resolution (including mediation, or any 
        other form of alternative dispute resolution).
            (7) Health care lawsuit.--The term ``health care lawsuit'' 
        means any health care liability claim concerning the provision 
        of goods or services for which coverage was provided in whole 
        or in part via a Federal program, subsidy or tax benefit, or 
        any health care liability action concerning the provision of 
        goods or services for which coverage was provided in whole or 
        in part via a Federal program, subsidy or tax benefit, brought 
        in a State or Federal court or pursuant to an alternative 
        dispute resolution system, against a health care provider 
        regardless of the theory of liability on which the claim is 
        based, or the number of claimants, plaintiffs, defendants, or 
        other parties, or the number of claims or causes of action, in 
        which the claimant alleges a health care liability claim. Such 
        term does not include a claim or action which is based on 
        criminal liability; which seeks civil fines or penalties paid 
        to Federal, State, or local government; or which is grounded in 
        antitrust.
            (8) Health care liability action.--The term ``health care 
        liability action'' means a civil action brought in a State or 
        Federal court or pursuant to an alternative dispute resolution 
        system, against a health care provider regardless of the theory 
        of liability on which the claim is based, or the number of 
        plaintiffs, defendants, or other parties, or the number of 
        causes of action, in which the claimant alleges a health care 
        liability claim.
            (9) Health care liability claim.--The term ``health care 
        liability claim'' means a demand by any person, whether or not 
        pursuant to ADR, against a health care provider, including, but 
        not limited to, third-party claims, cross-claims, counter-
        claims, or contribution claims, which are based upon the 
        provision or use of (or the failure to provide or use) health 
        care services or medical products, regardless of the theory of 
        liability on which the claim is based, or the number of 
        plaintiffs, defendants, or other parties, or the number of 
        causes of action.
            (10) Health care provider.--The term ``health care 
        provider'' means any person or entity required by State or 
        Federal laws or regulations to be licensed, registered, or 
        certified to provide health care services, and being either so 
        licensed, registered, or certified, or exempted from such 
        requirement by other statute or regulation, as well as any 
        other individual or entity defined as a health care provider, 
        health care professional, or health care institution under 
        State law.
            (11) Health care services.--The term ``health care 
        services'' means the provision of any goods or services by a 
        health care provider, or by any individual working under the 
        supervision of a health care provider, that relates to the 
        diagnosis, prevention, or treatment of any human disease or 
        impairment, or the assessment or care of the health of human 
        beings.
            (12) Medical product.--The term ``medical product'' means a 
        drug, device, or biological product intended for humans, and 
        the terms ``drug'', ``device'', and ``biological product'' have 
        the meanings given such terms in sections 201(g)(1) and 201(h) 
        of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
        321(g)(1) and (h)) and section 351(a) of the Public Health 
        Service Act (42 U.S.C. 262(a)), respectively, including any 
        component or raw material used therein, but excluding health 
        care services.
            (13) Noneconomic damages.--The term ``noneconomic damages'' 
        means damages for physical and emotional pain, suffering, 
        inconvenience, physical impairment, mental anguish, 
        disfigurement, loss of enjoyment of life, loss of society and 
        companionship, loss of consortium (other than loss of domestic 
        service), hedonic damages, injury to reputation, and all other 
        nonpecuniary losses of any kind or nature incurred as a result 
        of the provision or use of (or failure to provide or use) 
        health care services or medical products, unless otherwise 
        defined under applicable State law.
            (14) Recovery.--The term ``recovery'' means the net sum 
        recovered after deducting any disbursements or costs incurred 
        in connection with prosecution or settlement of the claim, 
        including all costs paid or advanced by any person. Costs of 
        health care incurred by the plaintiff and the attorneys' office 
        overhead costs or charges for legal services are not deductible 
        disbursements or costs for such purpose.
            (15) Representative.--The term ``representative'' means a 
        legal guardian, attorney, person designated to make decisions 
        on behalf of a patient under a medical power of attorney, or 
        any person recognized in law or custom as a patient's agent.
            (16) State.--The term ``State'' means each of the several 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, the Virgin Islands, Guam, American Samoa, the Northern 
        Mariana Islands, the Trust Territory of the Pacific Islands, 
        and any other territory or possession of the United States, or 
        any political subdivision thereof.

SEC. 10. EFFECT ON OTHER LAWS.

    (a) Vaccine Injury.--
            (1) To the extent that title XXI of the Public Health 
        Service Act establishes a Federal rule of law applicable to a 
        civil action brought for a vaccine-related injury or death--
                    (A) this Act does not affect the application of the 
                rule of law to such an action; and
                    (B) any rule of law prescribed by this Act in 
                conflict with a rule of law of such title XXI shall not 
                apply to such action.
            (2) If there is an aspect of a civil action brought for a 
        vaccine-related injury or death to which a Federal rule of law 
        under title XXI of the Public Health Service Act does not 
        apply, then this Act or otherwise applicable law (as determined 
        under this Act) will apply to such aspect of such action.
    (b) Other Federal Law.--Except as provided in this section, nothing 
in this Act shall be deemed to affect any defense available to a 
defendant in a health care lawsuit or action under any other provision 
of Federal law.

SEC. 11. RULES OF CONSTRUCTION.

    (a) Health Care Lawsuits.--Unless otherwise specified in this Act, 
the provisions governing health care lawsuits set forth in this Act 
preempt, subject to subsections (b) and (c), State law to the extent 
that State law prevents the application of any provisions of law 
established by or under this Act. The provisions governing health care 
lawsuits set forth in this Act supersede chapter 171 of title 28, 
United States Code, to the extent that such chapter--
            (1) provides for a greater amount of damages or contingent 
        fees, 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) prohibits the introduction of evidence regarding 
        collateral source benefits, or mandates or permits subrogation 
        or a lien on collateral source benefits.
    (b) Protection of States' Rights and Other Laws.--Any issue that is 
not governed by any provision of law established by or under this Act 
(including State standards of negligence) shall be governed by 
otherwise applicable State or Federal law.
    (c) State Flexibility.--No provision of this Act shall be construed 
to preempt any defense available to a party in a health care lawsuit 
under any other provision of State or Federal law.

SEC. 12. EFFECTIVE DATE.

    This Act shall apply to any health care lawsuit brought in a 
Federal or State court, or subject to an alternative dispute resolution 
system, that is initiated on or after the date of the enactment of this 
Act, except that any health care lawsuit arising from an injury 
occurring prior to the date of the enactment of this Act shall be 
governed by the applicable statute of limitations provisions in effect 
at the time the cause of action accrued.
                                 <all>