[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1572 Introduced in House (IH)]
103d CONGRESS
1st Session
H. R. 1572
To award grants to States to promote the development of alternative
dispute resolution systems for medical malpractice claims, to generate
knowledge about such systems through expert data gathering and
assessment activities, to promote uniformity and to curb excesses in
State liability systems through federally-mandated liability reforms,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
March 31, 1993
Mr. Kyl (for himself, Mr. Stenholm, Mr. Stump, Mr. Sam Johnson of
Texas, Mrs. Johnson of Connecticut, Mr. Barton of Texas, Mr. Kolbe, and
Mr. Gingrich) introduced the following bill; which was referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To award grants to States to promote the development of alternative
dispute resolution systems for medical malpractice claims, to generate
knowledge about such systems through expert data gathering and
assessment activities, to promote uniformity and to curb excesses in
State liability systems through federally-mandated liability reforms,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Medical Care Injury Compensation
Reform Act of 1993''.
SEC. 2. FINDINGS; PURPOSE.
(a) Findings.--Congress finds that--
(1) the health care and insurance industries are industries
affecting interstate commerce and the medical malpractice
litigation systems existing throughout the United States affect
interstate commerce by contributing to the high cost of health
care and premiums for malpractice insurance purchased by health
care providers;
(2) the Federal Government has a major interest in health
care as a direct provider of health care through the Public
Health Service, as a source of payment for health care through
Medicare, Medicaid, and other programs, and has a demonstrated
interest in assessing the quality of care, access to care, and
the costs of care through the evaluative activities of several
Federal agencies;
(3) there is increasing concern that health care liability
claims have significant negative effects on the health care
system, including--
(A) increasing costs attributable to defensive
medical practices, including the rising cost of medical
liability insurance and costs attributable to the
inefficiencies in the civil justice system;
(B) adverse effects on the quality of health care
through the encouragement of defensive health care
practices including unnecessary tests and procedures;
and
(C) adverse effects on patient access to care
because the fear of liability discourages health care
professionals from continuing to practice in high risk
specialties and certain geographic regions of the
country;
(4) it has been demonstrated that the civil justice system
is a costly, inefficient, and inequitable mechanism for
resolving claims against health care providers and producers;
(5) a disproportionately large percentage of funds expended
to compensate patients who suffer health care injuries is
distributed to a few individuals, while others are denied
adequate compensation;
(6) an exorbitant portion of awards in medical malpractice
actions goes towards paying the transaction costs of the
judicial system rather than compensating individuals for health
care injuries; and
(7) there is optimism that alternative dispute resolution
systems have the potential to significantly improve the adverse
effects of the medical liability environment; however, more
data and analysis is necessary to fully understand the benefits
of various procedural devices.
(b) Purpose.--It is the purpose of this Act to--
(1) provide incentives to States to develop alternative
dispute resolution procedures to attain a more efficient,
expeditious, and equitable resolution of health care
malpractice disputes;
(2) enhance general knowledge concerning the benefits of
different forms of alternative dispute resolution mechanisms;
and
(3) establish uniformity and curb excesses in the State-
based medical liability systems through federally-mandated
reforms.
SEC. 3. DEFINITIONS.
As used in this Act:
(1) Alternative dispute resolution system.--The term
``alternative dispute resolution system'' means a system that
is enacted or adopted by a State to resolve medical malpractice
claims or medical product liability claims instead of resorting
to a judicial proceeding in a State court.
(2) Claimant.--The term ``claimant'' means any person who
brings a health care liability action and, in the case of an
individual who is deceased, incompetent, or a minor, the person
on whose behalf such an action is brought.
(3) Clear and convincing evidence.--The term ``clear and
convincing evidence'' is that measure or degree of proof that
will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be
established, except that such measure or degree of proof is
more than that required under preponderance of the evidence,
but less than that required for proof beyond a reasonable
doubt.
(4) Economic losses.--The term ``economic losses'' means
losses for hospital and other medical expenses, lost wages,
lost employment, and other pecuniary losses.
(5) Health care liability action.--The term ``health care
liability action'' means any civil action brought pursuant to
State law in which a plaintiff alleges a medical malpractice
claim against a health care provider, health care professional,
or medical product producer.
(6) Health care professional.--The term ``health care
professional'' means any individual who provides health care
services in a State and who is required by State law or
regulation to be licensed or certified by the State to provide
such services in the State.
(7) Health care provider.--The term ``health care
provider'' means any organization or institution that is
engaged in the delivery of health care services in a State that
is required by State law or regulation to be licensed or
certified by the State to engage in the delivery of such
services in the State.
(8) Injury.--The term ``injury'' means any illness,
disease, or other harm that is the subject of a medical
malpractice claim or a medical product liability claim.
(9) Medical malpractice claim.--The term ``medical
malpractice claim'' means any claim relating to the provision
of (or the failure to provide) health care services without
regard to the theory of liability asserted, and includes any
third-party claim, cross-claim, counterclaim, or contribution
claim in a health care liability action.
(10) Medical product.--The term ``medical product'' means a
device (as defined in section 201(h) of the Federal Food, Drug,
and Cosmetic Act) or a drug (as defined in section 201(g)(1) of
the Federal Food, Drug, and Cosmetic Act).
(11) Medical product liability claim.--The term ``medical
product liability claim'' means any claim in which a claimant
alleges an injury arising from or relating to the use of a
medical product.
(12) Medical product producer.--The term ``medical product
producer'' means any entity that is the designer, manufacturer,
producer, or seller of a medical product that is the subject of
a medical product liability claim.
(13) Noneconomic losses.--The term ``noneconomic losses''
means losses for physical and emotional pain, suffering,
inconvenience, physical impairment, mental anguish,
disfigurement, loss of enjoyment of life, loss of consortium,
and other nonpecuniary losses.
(14) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(15) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, and Guam.
TITLE I--GRANTS TO STATES FOR ALTERNATIVE DISPUTE RESOLUTION SYSTEMS
SEC. 101. GRANTS TO STATES.
(a) In General.--The Secretary shall make grants to States for the
implementation and evaluation of alternative dispute resolution
systems.
(b) Eligibility.--A State is eligible to receive a grant under this
section if the State submits to the Secretary an application at such
time, in such form, and containing such information and assurances as
the Secretary may require, including--
(1) a description of the alternative dispute resolution
system that the State intends to implement with amounts
received under the grant;
(2) assurances that the State will comply with all data
gathering requirements promulgated by the Secretary under
section 102(a); and
(3) any information and assurances necessary to enable the
Secretary to determine whether the State's alternative dispute
resolution system meets the qualification standards for such
systems developed by the Secretary under section 102(a).
(c) Number of Grants.--
(1) In general.--Except as provided in paragraph (2), the
Secretary shall award not less than 10 grants each fiscal year
under this section.
(2) Exception.--Notwithstanding paragraph (1), the
Secretary may award less than 10 grants under this section in a
fiscal year if the Secretary determines that there are an
inadequate number of applications submitted that meet the
eligibility and approval requirements of this section in such
fiscal year.
(d) Designation of Model States.--
(1) In general.--The Secretary shall designate each State
receiving a grant under this section as a model alternative
dispute resolution State.
(2) Extension of period of grant.--Upon application to the
Secretary, a State designated under paragraph (1) shall be
eligible for a 2-year extension of the grant received under
this section.
(3) Dissemination of information to other states.--The
Secretary shall disseminate information on the alternative
dispute resolution systems implemented by the States designated
under paragraph (1) to other States, health care professionals,
health care providers, and other interested parties.
SEC. 102. ADMINISTRATION.
(a) Standards and Regulations for Alternative Dispute Resolution
Grant Program.--
(1) In general.--In consultation with the Director of the
Agency for Health Care Policy and Research, the Secretary shall
develop and promulgate standards and regulations necessary to
carry out the grant program established under section 101,
including--
(A) qualification standards for alternative dispute
resolution systems that States must meet in order to
receive grants under such section; and
(B) regulations establishing data gathering
requirements for States receiving grants under such
section.
(2) Criteria for programs.--In developing qualification
standards for alternative dispute resolution systems under
paragraph (1)(A), the Secretary shall take into account the
effectiveness of such systems in--
(A) supporting access to health care;
(B) encouraging improvements in the quality of
health care;
(C) enhancing and not impairing the physician-
patient relationship;
(D) encouraging innovation that leads to an
improved level of health care;
(E) compensating for avoidable medical injury due
to provider fault and not compensating for injury which
is unavoidable by standard medical practice;
(F) resolving claims promptly and in amounts
proportional to the injury;
(G) providing predictable outcomes; and
(H) operating efficiently in terms of financial
costs, professional energies, and governmental
processes.
(b) Technical Assistance.--The Secretary shall provide States with
technical assistance to enable States to submit applications for grants
under section 101, including information on the establishment and
operation of alternative dispute resolution systems.
(c) Evaluation of Alternative Dispute Resolution Systems.--Not
later than 4 years after awarding the first grant to a State under
section 101, the Secretary shall prepare and submit to Congress a
report describing and evaluating the alternative dispute resolution
systems implemented by States with funds provided under such grants,
and shall include in the report--
(1) information on--
(A) the effect of such systems on the cost of
health care within the State,
(B) the impact of such systems on the access of
individuals to health care within the State, and
(C) the effect of such systems on the quality of
health care provided within such State; and
(2) an analysis of the feasibility and desirability of
establishing a national alternative dispute resolution system.
TITLE II--UNIFORM STANDARDS FOR MALPRACTICE CLAIMS
SEC. 201. APPLICABILITY.
Except as provided in section 209, this title shall apply to any
health care liability action brought in a Federal or State court and to
any medical malpractice claim or medical product liability claim
subject to an alternative dispute resolution system.
SEC. 202. CALCULATION AND PAYMENT OF DAMAGES.
(a) Periodic Payments for Future Losses.--No person may be required
to pay more than $100,000 in a single payment in damages (whether for
economic or noneconomic losses) for expenses to be incurred in the
future, but shall be permitted to make such payments on a periodic
basis. The periods for such payments shall be determined by the court,
based upon projections of when such expenses are likely to be incurred.
(b) Limitation on Noneconomic Losses.--The total amount of damages
that may be awarded to an individual and the family members of such
individual for noneconomic losses resulting from an injury which is the
subject of an action or claim may not exceed $250,000, regardless of
the number of health care professionals, health care providers, and
health care producers against whom the action or claim is brought or
the number of actions or claims brought with respect to the injury.
(c) Mandatory Offsets for Damages Paid by a Collateral Source.--
(1) In general.--The total amount of damages received by an
individual shall be reduced (in accordance with paragraph (2))
by any other payment that has been or will be made to the
individual to compensate the individual for the injury that was
the subject of the action or claim.
(2) Amount of reduction.--The amount by which an award of
damages to an individual shall be reduced under paragraph (1)
shall be--
(A) the total amount of any payments (other than
such award) that have been made or that will be made to
the individual to compensate the individual for the
injury that was the subject of the action or claim;
minus
(B) the amount paid by the individual (or by the
spouse, parent, or legal guardian of the individual) to
secure the payments described in subparagraph (A).
(d) Attorney's Fees.--A claimant's attorney's fees may not exceed--
(1) 25 percent of the first $150,000 of any award or
settlement paid to the claimant; or
(2) 15 percent of any additional amounts paid to the
claimant.
(e) Limitation on Punitive Damages.--The total amount of punitive
damages that may be assessed with respect to an action or claim may not
exceed twice the total amount of the damages awarded to compensate the
claimant for losses resulting from the injury which is the subject of
the claim or action, regardless of the number of health care
professionals, health care providers, and health care producers against
whom the action or claim is brought or the number of actions or claims
brought with respect to the injury.
SEC. 203. JOINT AND SEVERAL LIABILITY FOR NONECONOMIC LOSSES.
The liability of each defendant for noneconomic losses shall be
several only and shall not be joint, and each defendant shall be liable
only for the amount of noneconomic losses allocated to the defendant in
direct proportion to the defendant's percentage of responsibility (as
determined by the trier of fact).
SEC. 204. UNIFORM STATUTE OF LIMITATIONS.
(a) In General.--No medical malpractice claim or medical product
liability claim may be initiated after the expiration of the 2-year
period that begins on the earlier of the date which the alleged injury
that is the subject of such action was discovered or the date on which
such injury should reasonably have been discovered, but in no event
after the expiration of the 4-year period that begins on the date the
alleged injury occurred.
(b) Exception for Minors.--In the case of an alleged injury
suffered by a minor who has not attained 6 years of age, no medical
malpractice liability claim or medical product liability claim may be
brought after the expiration of the 2-year period that begins on the
date the alleged injury that is the subject of the action should
reasonably have been discovered, but in no event after the date on
which the minor attains 10 years of age.
SEC. 205. SPECIAL PROVISION FOR CERTAIN OBSTETRIC SERVICES.
(a) In General.--In the case of a medical malpractice claim or
medical product liability claim relating to services provided during
labor or the delivery of a baby, if the defendant health care
professional did not previously treat the plaintiff for the pregnancy,
the trier of fact may not find that the defendant committed malpractice
and may not assess damages against the defendant unless the malpractice
is proven by clear and convincing evidence.
(b) Applicability to Group Practices or Agreements Among
Providers.--For purposes of subsection (a), a health care professional
shall be considered to have previously treated an individual for a
pregnancy if the professional is a member of a group practice whose
members previously treated the individual for the pregnancy or is
providing services to the individual during labor or the delivery of a
baby pursuant to an agreement with another professional.
SEC. 206. UNIFORM STANDARD FOR DETERMINING NEGLIGENCE.
(a) Standard of Reasonableness.--Except as provided in subsection
(b), a defendant may not be found to have committed malpractice unless
the defendant's conduct at the time of providing the health care
services that are the subject of the action was not reasonable.
(b) Actions Brought Under Strict Liability.--Subsection (a) shall
not apply to any action in which the claimant asserts that the
defendant is liable under a theory of strict liability.
SEC. 207. RESTRICTIONS ON PUNITIVE DAMAGES RELATING TO MEDICAL PRODUCT
LIABILITY CLAIMS.
(a) Restrictions for Approved Products or Devices.--
(1) In general.--Punitive damages otherwise permitted by
applicable law shall not be awarded with respect to any medical
product liability claim alleged against a medical product
producer if--
(A) the drug or device that is the subject of such
claim--
(i) was subject to approval under section
505 or premarket approval under section 515 of
the Federal Food, Drug, and Cosmetic Act by the
Food and Drug Administration with respect to--
(I) the safety of the formulation
or performance of the aspect of the
drug or device; or
(II) the adequacy of the packaging
or labeling of the drug or device, and
(ii) was approved by the Food and Drug
Administration; or
(B) the drug or device is generally recognized as
safe and effective pursuant to conditions established
by the Food and Drug Administration and applicable
regulations, including packaging and labeling
regulations.
(2) Exception in case of withheld information,
misrepresentation, or illegal payment.--The provisions of
paragraph (1) shall not apply if it is determined on the basis
of clear and convincing evidence that the medical product
producer--
(A) withheld from or misrepresented to the Food and
Drug Administration information concerning such drug or
device that is required to be submitted under the
Federal Food, Drug, and Cosmetic Act or section 352 of
the Public Health Service Act that is material and
relevant to the action; or
(B) made an illegal payment to an official of the
Food and Drug Administration for the purpose of
securing approval of the drug or device.
(b) Separate Proceeding To Determine Punitive Damages.--
(1) Considerations.--At the request of a medical product
producer in a health care liability action in which a medical
product liability claim is alleged against the producer, the
trier of fact shall consider in a separate proceeding--
(A) whether punitive damages are to be awarded and
the amount of the award; or
(B) the amount of punitive damages following a
determination of punitive liability.
(2) Evidence.--If a separate proceeding is requested in
accordance with paragraph (1), evidence relevant only to the
claim of punitive damages (as determined by applicable State
law) shall be inadmissible in any proceeding to determine
whether compensatory damages are to be awarded to the claimant.
(c) Criteria for Determining Amount of Punitive Damages.--Subject
to the limitation on punitive damages provided in section 202(e), all
relevant evidence shall be considered in determining the amount of
punitive damages assessed with respect to a medical product liability
claim, including--
(1) the financial condition of the medical product
producer;
(2) the severity of the harm caused by the conduct of the
medical product producer;
(3) the duration of the conduct or any concealment of the
conduct by the medical product producer;
(4) the profitability of the conduct to the medical product
producer;
(5) the number of products sold by the medical product
producer of the kind causing the harm complained of by the
claimant;
(6) awards of punitive or exemplary damages to persons
similarly situated to the claimant;
(7) prospective awards of compensatory damages to persons
similarly situated to the claimant;
(8) any criminal penalties imposed on the medical product
producer as a result of the conduct complained of by the
claimant; and
(9) the amount of any civil fines assessed against the
defendant as a result of the conduct complained of by the
claimant.
SEC. 208. JURISDICTION OF FEDERAL COURTS.
The district courts of the United States shall not have
jurisdiction of any health care liability action based on sections 1331
or 1337 of title 28, United States Code.
SEC. 209. PREEMPTION.
(a) In General.--This title supersedes any State law only to the
extent that the State law permits the recovery by a claimant or the
assessment against a defendant of a greater amount of damages, permits
the awarding of a greater amount of attorneys' fees, establishes a
longer period during which a medical malpractice claim or medical
product liability claim may be initiated, or establishes a less strict
standard of proof for determining whether a defendant has committed
malpractice, than the provisions of this title.
(b) Effect on Sovereign Immunity and Choice of Law or Venue.--
Nothing in this title shall be construed to--
(1) waive or affect any defense of sovereign immunity
asserted by any State under any provision of law;
(2) waive or affect any defense of sovereign immunity
asserted by the United States;
(3) affect the applicability of any provision of the
Foreign Sovereign Immunities Act of 1976;
(4) preempt State choice-of-law rules with respect to
claims brought by a foreign nation or a citizen of a foreign
nation; or
(5) affect the right of any court to transfer venue or to
apply the law of a foreign nation or to dismiss a claim of a
foreign nation or of a citizen of a foreign nation on the
ground in inconvenient forum.
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