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- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Accessible Care by Curbing Excessive lawSuitS Act of 5 2019’’ or the ‘‘ACCESS Act of 2019’’. 6 VerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 3656 IH (b) TABLE OF CONTENTS.—The table of contents of 1 this Act is as follows: 2 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. 3 (a) FINDINGS.— 4 (1) EFFECT ON HEALTH CARE ACCESS AND 5 COSTS.—Congress finds that the current civil justice 6 system is adversely affecting patient access to health 7 care services, better patient care, and cost-efficient 8 health care, in that the health care liability system 9 without reform is a costly and inefficient mechanism 10 for resolving claims of health care liability and com- 11 pensating injured patients, and is a deterrent to the 12 sharing of information among health care profes- 13 sionals which impedes efforts to improve patient 14 safety and quality of care. 15 (2) EFFECT ON FEDERAL SPENDING.— 16 VerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 3656 IH (A) Congress finds that the health care li- 1 ability litigation systems existing throughout 2 the United States have a significant effect on 3 the amount, distribution, and use of Federal 4 funds because of— 5 (i) the large number of individuals 6 who receive health care benefits under pro- 7 grams operated or financed by the Federal 8 Government; 9 (ii) the large number of individuals 10 who benefit because of the exclusion from 11 Federal taxes of the amounts spent to pro- 12 vide them with health insurance benefits; 13 and 14 (iii) the large number of health care 15 providers who provide items or services for 16 which the Federal Government makes pay- 17 ments. 18 (B) Congress finds that the Federal deficit 19 would be reduced by $62 billion over the next 20 decade if Federal health care liability reforms 21 were enacted, as verified by the Congressional 22 Budget Office. 23 (3) EFFECT ON INTERSTATE COMMERCE.— 24 Congress finds that the health care and insurance 25 VerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 3656 IH industries are industries affecting interstate com- 1 merce and the health care liability litigation systems 2 existing throughout the United States are activities 3 that affect interstate commerce by contributing to 4 the high costs of health care and premiums for 5 health care liability insurance purchased by health 6 care system providers. 7 (b) PURPOSE.—It is the purpose of this Act to imple- 8 ment reasonable, comprehensive, and effective health care 9 liability reforms designed to— 10 (1) improve the availability of health care serv- 11 ices in cases in which health care liability actions 12 have been shown to be a factor in the decreased 13 availability of services; 14 (2) reduce the incidence of ‘‘defensive medi- 15 cine’’ and lower the cost of health care liability in- 16 surance, all of which contribute to the escalation of 17 health care costs; 18 (3) ensure that persons with meritorious health 19 care injury claims receive fair and adequate com- 20 pensation, including reasonable noneconomic dam- 21 ages; 22 (4) improve the fairness and cost-effectiveness 23 of our current health care liability system to resolve 24 disputes over, and provide compensation for, health 25 VerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 3656 IH care liability by reducing uncertainty in the amount 1 of compensation provided to injured individuals; and 2 (5) provide an increased sharing of information 3 in the health care system which will reduce unin- 4 tended injury and improve patient care. 5 SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS. 6 (a) STATUTE OF LIMITATIONS.—The time for the 7 commencement of a health care lawsuit shall be 3 years 8 after the date of injury or 1 year after the claimant dis- 9 covers, or through the use of reasonable diligence should 10 have discovered, the injury, whichever occurs first. In no 11 event shall the time for commencement of a health care 12 lawsuit exceed 3 years after the date of injury unless tolled 13 for any of the following— 14 (1) upon proof of fraud; 15 (2) intentional concealment; or 16 (3) the presence of a foreign body, which has no 17 therapeutic or diagnostic purpose or effect, in the 18 person of the injured person. 19 Actions by a minor shall be commenced within 3 years 20 from the date of the injury except that actions by a minor 21 under the full age of 6 years shall be commenced within 22 3 years of injury, or 1 year after the injury is discovered, 23 or through the use of reasonable diligence should have 24 been discovered, or prior to the minor’s 8th birthday, 25 VerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 3656 IH whichever provides a longer period. Such time limitation 1 shall be tolled for minors for any period during which a 2 parent or guardian and a health care provider have com- 3 mitted fraud or collusion in the failure to bring an action 4 on behalf of the injured minor. 5 (b) STATE FLEXIBILITY.—No provision of Sub- 6 section (a) shall be construed to preempt any state law 7 (whether effective before, on, or after the date of the en- 8 actment of this Act) that— 9 (1) specifies a time period of less than 3 years 10 after the date of injury or less than 1 year after the 11 claimant discovers, or through the use of reasonable 12 diligence should have discovered, the injury, for the 13 filing of a health care lawsuit; 14 (2) that specifies a different time period for the 15 filing of lawsuits by a minor; 16 (3) that triggers the time period based on the 17 date of the alleged negligence; or 18 (4) establishes a statute of repose for the filing 19 of health care lawsuit. 20 SEC. 4. COMPENSATING PATIENT INJURY. 21 (a) UNLIMITED AMOUNT OF DAMAGES FOR ACTUAL 22 ECONOMIC LOSSES IN HEALTH CARE LAWSUITS.—In any 23 health care lawsuit, nothing in this Act shall limit a claim- 24 VerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 3656 IH ant’s recovery of the full amount of the available economic 1 damages, notwithstanding the limitation in subsection (b). 2 (b) ADDITIONAL NONECONOMIC DAMAGES.—In any 3 health care lawsuit, the amount of noneconomic damages, 4 if available, shall not exceed $250,000, regardless of the 5 number of parties against whom the action is brought or 6 the number of separate claims or actions brought with re- 7 spect to the same injury. 8 (c) NO DISCOUNT OF AWARD FOR NONECONOMIC 9 DAMAGES.—For purposes of applying the limitation in 10 subsection (b), future noneconomic damages shall not be 11 discounted to present value. The jury shall not be in- 12 formed about the maximum award for noneconomic dam- 13 ages. An award for noneconomic damages in excess of 14 $250,000 shall be reduced either before the entry of judg- 15 ment, or by amendment of the judgment after entry of 16 judgment, and such reduction shall be made before ac- 17 counting for any other reduction in damages required by 18 law. If separate awards are rendered for past and future 19 noneconomic damages and the combined awards exceed 20 $250,000, the future noneconomic damages shall be re- 21 duced first. 22 (d) FAIR SHARE RULE.—In any health care lawsuit, 23 each party shall be liable for that party’s several share 24 of any damages only and not for the share of any other 25 VerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 3656 IH person. Each party shall be liable only for the amount of 1 damages allocated to such party in direct proportion to 2 such party’s percentage of responsibility. Whenever a 3 judgment of liability is rendered as to any party, a sepa- 4 rate judgment shall be rendered against each such party 5 for the amount allocated to such party. For purposes of 6 this section, the trier of fact shall determine the propor- 7 tion of responsibility of each party for the claimant’s 8 harm. 9 (e) STATE FLEXIBILITY.—No provision of this sec- 10 tion shall be construed to preempt any State law (whether 11 effective before, on, or after the date of the enactment of 12 this Act) that specifies a particular monetary amount of 13 economic or noneconomic damages (or the total amount 14 of damages) that may be awarded in a health care lawsuit, 15 regardless of whether such monetary amount is greater 16 or lesser than is provided for under this section. 17 SEC. 5. MAXIMIZING PATIENT RECOVERY. 18 (a) COURT SUPERVISION OF SHARE OF DAMAGES 19 ACTUALLY PAID TO CLAIMANTS.—In any health care law- 20 suit, the court shall supervise the arrangements for pay- 21 ment of damages to protect against conflicts of interest 22 that may have the effect of reducing the amount of dam- 23 ages awarded that are actually paid to claimants. In par- 24 ticular, in any health care lawsuit in which the attorney 25 VerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 3656 IH for a party claims a financial stake in the outcome by vir- 1 tue of a contingent fee, the court shall have the power 2 to restrict the payment of a claimant’s damage recovery 3 to such attorney, and to redirect such damages to the 4 claimant based upon the interests of justice and principles 5 of equity. In no event shall the total of all contingent fees 6 for representing all claimants in a health care lawsuit ex- 7 ceed the following limits: 8 (1) Forty percent of the first $50,000 recovered 9 by the claimant(s). 10 (2) Thirty-three and one-third percent of the 11 next $50,000 recovered by the claimant(s). 12 (3) Twenty-five percent of the next $500,000 13 recovered by the claimant(s). 14 (4) Fifteen percent of any amount by which the 15 recovery by the claimant(s) is in excess of $600,000. 16 (b) APPLICABILITY.—The limitations in this section 17 shall apply whether the recovery is by judgment, settle- 18 ment, mediation, arbitration, or any other form of alter- 19 native dispute resolution. In a health care lawsuit involv- 20 ing a minor or incompetent person, a court retains the 21 authority to authorize or approve a fee that is less than 22 the maximum permitted under this section. The require- 23 ment for court supervision in the first two sentences of 24 subsection (a) applies only in civil actions. 25 VerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 3656 IH (c) STATE FLEXIBILITY.—No provision of this sec- 1 tion shall be construed to preempt any State law (whether 2 effective before, on, or after the date of the enactment of 3 this Act) that specifies a lesser percentage or lesser total 4 value of damages which may be claimed by an attorney 5 representing a claimant in a health care lawsuit. 6 SEC. 6. ADDITIONAL HEALTH BENEFITS. 7 (a) COLLATERAL SOURCE BENEFITS.—In any health 8 care lawsuit involving injury or wrongful death, any party 9 may introduce evidence of collateral source benefits. If a 10 party elects to introduce such evidence, any opposing party 11 may introduce evidence of any amount paid or contributed 12 or reasonably likely to be paid or contributed in the future 13 by or on behalf of the opposing party to secure the right 14 to such collateral source benefits. 15 (b) SUBROGATION.—No provider of collateral source 16 benefits shall recover any amount against the claimant or 17 receive any lien or credit against the claimant’s recovery 18 or be equitably or legally subrogated to the right of the 19 claimant in a health care lawsuit involving injury or 20 wrongful death. 21 (c) APPLICABILITY.—This section shall apply to any 22 health care lawsuit that is settled as well as a health care 23 lawsuit that is resolved by a fact finder. This section shall 24 not apply to section 1862(b) (42 U.S.C. 1395y(b)) or sec- 25 VerDate Sep 11 2014 21:42 Jul 17, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3656.IH H3656 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 3656 IH tion 1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social 1 Security Act. 2 (d) STATE FLEXIBILITY.—No provision of subsection 3 (a) shall be construed to preempt any State law (whether 4 effective before, on, or after the date of the enactment of 5 this Act) that specifies a mandatory offset of collateral 6 source benefits against an award in a health care liability 7 lawsuit. 8 SEC. 7. AUTHORIZATION OF PAYMENT OF FUTURE DAM- 9 AGES TO CLAIMANTS IN HEALTH CARE L [Text truncated for display. Full text available on Congress.gov.]