,i #aadth ,,congress #b;d ,session ,h4 ,r4 #dehi ,,in ,,the ,,house ,,of ,,representatives ,february #bc1 #bjaf ,mr4 ,mac,arthur introduced the following bill2 which was referred to the ,committee on the ,judiciary1 and in addition to the ,committees on ,energy and ,commerce and ,ways and ,means1 for a period to be subsequently determined by the ,speaker1 in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned ,a ,,bill ,to amend title ,,xviii of the ,social ,security ,act to repeal the cap on the ,medicare ,advantage star rating bonuses1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,excellence in ,medicare ,act4 ,i ,medicare ,advantage #aja4 ,repealing cap on ,medicare ,advantage star rating bonuses 7a7 ,in general ,section #ahec7n77#d7 of the ,social ,security ,act 7#db ,u4,s4,c4 #aciew-#bc7n77#d77 is amended by striking 7determined taking into account subsection 7o77 and inserting determined before application of subsection 7o774 7b7 ,effective date ,the amendment made by subsection 7a7 shall apply beginning with respect to #bjag4 ,,ii ,,health ,act #bja4 ,short title ,this title may be cited as the ,medical ,malpractice ,reform ,act of #bjae4 #bjb4 ,findings and purpose 7a7 ,findings 7#a7 ,effect on health care access and costs ,congress finds that our current civil justice system is adversely affecting patient access to health care services1 better patient care1 and cost-efficient health care1 in that the health care liability system is a costly and ineffective mechanism for resolving claims of health care liability and compensating injured patients1 and is a deterrent to the sharing of information among health care professionals which impedes efforts to improve patient safety and quality of care4 7#b7 ,effect on interstate commerce ,congress finds that 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 providers4 7#c7 ,effect on federal spending ,congress finds that the health care liability litigation systems existing throughout the ,united ,states have a significant effect on the amount1 distribution1 and use of ,federal funds because of-- 7,a7 the large number of individuals who receive health care benefits under programs operated or financed by the ,federal ,government2 7,b7 the large number of individuals who benefit because of the exclusion from ,federal taxes of the amounts spent to provide them with health insurance benefits2 and 7,c7 the large number of health care providers who provide items or services for which the ,federal ,government makes payments4 7b7 ,purpose ,it is the purpose of this title to implement reasonable1 comprehensive1 and effective health care liability reforms designed to-- 7#a7 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 services2 7#b7 reduce the incidence of defensive medicine and lower the cost of health care liability insurance1 all of which contribute to the escalation of health care costs2 7#c7 ensure that persons with meritorious health care injury claims receive fair and adequate compensation1 including reasonable noneconomic damages2 7#d7 improve the fairness and cost-effectiveness of our current health care liability system to resolve disputes over1 and provide compensation for1 health care liability by reducing uncertainty in the amount of compensation provided to injured individuals2 and 7#e7 provide an increased sharing of information in the health care system which will reduce unintended injury and improve patient care4 #bjc4 ,encouraging speedy resolution of claims ,the time for the commencement of a health care lawsuit shall be #c years after the date of manifestation of injury or #a year after the claimant discovers1 or through the use of reasonable diligence should have discovered1 the injury1 whichever occurs first4 ,in no event shall the time for commencement of a health care lawsuit exceed #c years after the date of manifestation of injury unless tolled for any of the following-- 7#a7 upon proof of fraud2 7#b7 intentional concealment2 or 7#c7 the presence of a foreign body1 which has no therapeutic or diagnostic purpose or effect1 in the person of the injured person4 ,actions by a minor shall be commenced within #c years from the date of the alleged manifestation of injury except that actions by a minor under the full age of #f years shall be commenced within #c years of manifestation of injury or prior to the minor's #hth birthday1 whichever provides a longer period4 ,such time limitation shall be tolled for minors for any period during which a parent or guardian and a health care provider or health care organization have committed fraud or collusion in the failure to bring an action on behalf of the injured minor4 #bjd4 ,compensating patient injury 7a7 ,unlimited ,amount of ,damages for ,actual ,economic ,losses in ,health ,care ,lawsuits ,in any health care lawsuit1 nothing in this title shall limit a claimant's recovery of the full amount of the available economic damages1 notwithstanding the limitation in subsection 7b74 7b7 ,additional ,noneconomic ,damages ,in any health care lawsuit1 the amount of noneconomic damages1 if available1 may be as much as #bej1jjj1 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 injury4 7c7 ,no ,discount of ,award for ,noneconomic ,damages ,for purposes of applying the limitation in subsection 7b71 future noneconomic damages shall not be discounted to present value4 ,the jury shall not be informed about the maximum award for noneconomic damages4 ,an award for noneconomic damages in excess of #bej1jjj shall be reduced either before the entry of judgment1 or by amendment of the judgment after entry of judgment1 and such reduction shall be made before accounting for any other reduction in damages required by law4 ,if separate awards are rendered for past and future noneconomic damages and the combined awards exceed #bej1jjj1 the future noneconomic damages shall be reduced first4 7d7 ,fair ,share ,rule ,in any health care lawsuit1 each party shall be liable for that party's several share of any damages only and not for the share of any other person4 ,each party shall be liable only for the amount of damages allocated to such party in direct proportion to such party's percentage of responsibility4 ,whenever a judgment of liability is rendered as to any party1 a separate judgment shall be rendered against each such party for the amount allocated to such party4 ,for purposes of this section1 the trier of fact shall determine the proportion of responsibility of each party for the claimant's harm4 #bje4 ,maximizing patient recovery 7a7 ,court ,supervision of ,share of ,damages ,actually ,paid to ,claimants ,in any health care lawsuit1 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 claimants4 ,in particular1 in any health care lawsuit in which the attorney for a party claims a financial stake in the outcome by virtue of a contingent fee1 the court shall have the power to restrict the payment of a claimant's damage recovery to such attorney1 and to redirect such damages to the claimant based upon the interests of justice and principles of equity4 ,in no event shall the total of all contingent fees for representing all claimants in a health care lawsuit exceed the following limits3 7#a7 ,forty percent of the first #ej1jjj recovered by the claimant7s74 7#b7 ,thirty-three and one-third percent of the next #ej1jjj recovered by the claimant7s74 7#c7 ,twenty-five percent of the next #ejj1jjj recovered by the claimant7s74 7#d7 ,fifteen percent of any amount by which the recovery by the claimant7s7 is in excess of #fjj1jjj4 7b7 ,applicability ,the limitations in this section shall apply whether the recovery is by judgment1 settlement1 mediation1 arbitration1 or any other form of alternative dispute resolution4 ,in a health care lawsuit involving a minor or incompetent person1 a court retains the authority to authorize or approve a fee that is less than the maximum permitted under this section4 ,the requirement for court supervision in the first two sentences of subsection 7a7 applies only in civil actions4 #bjf4 ,additional benefits ,in any health care lawsuit involving injury or wrongful death1 any party may introduce evidence of collateral source benefits4 ,if a party elects to introduce such evidence1 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 benefits4 ,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 death4 ,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 finder4 ,this section shall not apply to section #ahfb7;b7 7#db ,u4,s4,c4 #aciey7b77 or section #aijb7;a77#be7 7#db ,u4,s4,c4 #acif;a7a77#be77 of the ,social ,security ,act4 #bjg4 ,punitive damages 7a7 ,in ,general ,punitive damages may1 if otherwise permitted by applicable ,state or ,federal law1 be awarded against any person in a health care lawsuit only if it is proven by clear and convincing evidence that such person acted with malicious intent to injure the claimant1 or that such person deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially certain to suffer4 ,in any health care lawsuit where no judgment for compensatory damages is rendered against such person1 no punitive damages may be awarded with respect to the claim in such lawsuit4 ,no demand for punitive damages shall be included in a health care lawsuit as initially filed4 ,a court may allow a claimant to file an amended pleading for punitive damages only upon a motion by the claimant and after a finding by the court1 upon review of supporting and opposing affidavits or after a hearing1 after weighing the evidence1 that the claimant has established by a substantial probability that the claimant will prevail on the claim for punitive damages4 ,at the request of any party in a health care lawsuit1 the trier of fact shall consider in a separate proceeding-- 7#a7 whether punitive damages are to be awarded and the amount of such award2 and 7#b7 the amount of punitive damages following a determination of punitive liability4 ,if a separate proceeding is requested1 evidence relevant only to the claim for punitive damages1 as determined by applicable ,state law1 shall be inadmissible in any proceeding to determine whether compensatory damages are to be awarded4 7b7 ,determining ,amount of ,punitive ,damages 7#a7 ,factors considered ,in determining the amount of punitive damages1 if awarded1 in a health care lawsuit1 the trier of fact shall consider only the following3 7,a7 ,the severity of the harm caused by the conduct of such party4 7,b7 ,the duration of the conduct or any concealment of it by such party4 7,c7 ,the profitability of the conduct to such party4 7,d7 ,the number of products sold or medical procedures rendered for compensation1 as the case may be1 by such party1 of the kind causing the harm complained of by the claimant4 7,e7 ,any criminal penalties imposed on such party1 as a result of the conduct complained of by the claimant4 7,f7 ,the amount of any civil fines assessed against such party as a result of the conduct complained of by the claimant4 7#b7 ,maximum award ,the amount of punitive damages1 if awarded1 in a health care lawsuit may be as much as #bej1jjj or as much as two times the amount of economic damages awarded1 whichever is greater4 ,the jury shall not be informed of this limitation4 7c7 ,no ,punitive ,damages for ,products ,that ,comply ,with ,,fda ,standards 7#a7 ,in general 7,a7 ,no punitive damages may be awarded against the manufacturer or distributor of a medical product1 or a supplier of any component or raw material of such medical product1 based on a claim that such product caused the claimant's harm where-- 7i7 7,i7 such medical product was subject to premarket approval1 clearance1 or licensure by the ,food and ,drug ,administration with respect to the safety of the formulation or performance of the aspect of such medical product which caused the claimant's harm or the adequacy of the packaging or labeling of such medical product2 and 7,,ii7 such medical product was so approved1 cleared1 or licensed2 or 7ii7 such medical product is generally recognized among qualified experts as safe and effective pursuant to conditions established by the ,food and ,drug ,administration and applicable ,food and ,drug ,administration regulations1 including without limitation those related to packaging and labeling1 unless the ,food and ,drug ,administration has determined that such medical product was not manufactured or distributed in substantial compliance with applicable ,food and ,drug ,administration statutes and regulations4 7,b7 ,rule of construction ,subparagraph 7,a7 may not be construed as establishing the obligation of the ,food and ,drug ,administration to demonstrate affirmatively that a manufacturer1 distributor1 or supplier referred to in such subparagraph meets any of the conditions described in such subparagraph4 7#b7 ,liability of health care providers ,a health care provider who prescribes1 or who dispenses pursuant to a prescription1 a medical product approved1 licensed1 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 manufacturer1 distributor1 or seller of such product4 ,nothing in this paragraph prevents a court from consolidating cases involving health care providers and cases involving products liability claims against the manufacturer1 distributor1 or product seller of such medical product4 7#c7 ,packaging ,in a health care lawsuit for harm which is alleged to relate to the adequacy of the packaging or labeling of a drug which is required to have tamper-resistant packaging under regulations of the ,secretary of ,health and ,human ,services 7including labeling regulations related to such packaging71 the manufacturer or product seller of the drug shall not be held liable for punitive damages unless such packaging or labeling is found by the trier of fact by clear and convincing evidence to be substantially out of compliance with such regulations4 7#d7 ,exception ,paragraph 7#a7 shall not apply in any health care lawsuit in which-- 7,a7 a person1 before or after premarket approval1 clearance1 or licensure of such medical product1 knowingly misrepresented to or withheld from the ,food and ,drug ,administration information that is required to be submitted under the ,federal ,food1 ,drug1 and ,cosmetic ,act 7#ba ,u4,s4,c4 #cja et seq47 or section #cea of the ,public ,health ,service ,act 7#db ,u4,s4,c4 #bfb7 that is material and is causally related to the harm which the claimant allegedly suffered2 or 7,b7 a person made an illegal payment to an official of the ,food and ,drug ,administration for the purpose of either securing or maintaining approval1 clearance1 or licensure of such medical product4 #bjh4 ,authorization of payment of future damages to claimants in health care lawsuits 7a7 ,in ,general ,in any health care lawsuit1 if an award of future damages1 without reduction to present value1 equaling or exceeding #ej1jjj is made against a party with sufficient insurance or other assets to fund a periodic payment of such a judgment1 the court shall1 at the request of any party1 enter a judgment ordering that the future damages be paid by periodic payments1 in accordance with the ,uniform ,periodic ,payment of ,judgments ,act promulgated by the ,national ,conference of ,commissioners on ,uniform ,state ,laws4 7b7 ,applicability ,this section applies to all actions which have not been first set for trial or retrial before the effective date of this title4 #bji4 ,definitions ,in this title3 7#a7 ,alternative dispute resolution system2 ,,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 court4 7#b7 ,claimant ,the term claimant means any person who brings a health care lawsuit1 including a person who asserts or claims a right to legal or equitable contribution1 indemnity1 or subrogation1 arising out of a health care liability claim or action1 and any person on whose behalf such a claim is asserted or such an action is brought1 whether deceased1 incompetent1 or a minor4 7#c7 ,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 claimant1 or any service1 product1 or other benefit provided or reasonably likely to be provided in the future to or on behalf of the claimant1 as a result of the injury or wrongful death1 pursuant to-- 7,a7 any ,state or ,federal health1 sickness1 income-disability1 accident1 or workers' compensation law2 7,b7 any health1 sickness1 income-disability1 or accident insurance that provides health benefits or income-disability coverage2 7,c7 any contract or agreement of any group1 organization1 partnership1 or corporation to provide1 pay for1 or reimburse the cost of medical1 hospital1 dental1 or income-disability benefits2 and 7,d7 any other publicly or privately funded program4 7#d7 ,compensatory damages ,the term compensatory damages means objectively verifiable monetary losses incurred as a result of the provision of1 use of1 or payment for 7or failure to provide1 use1 or pay for7 health care services or medical products1 such as past and future medical expenses1 loss of past and future earnings1 cost of obtaining domestic services1 loss of employment1 and loss of business or employment opportunities1 damages for physical and emotional pain1 suffering1 inconvenience1 physical impairment1 mental anguish1 disfigurement1 loss of enjoyment of life1 loss of society and companionship1 loss of consortium 7other than loss of domestic service71 hedonic damages1 injury to reputation1 and all other nonpecuniary losses of any kind or nature4 ,the term compensatory damages includes economic damages and noneconomic damages1 as such terms are defined in this section4 7#e7 ,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 claimants4 7#f7 ,economic damages ,the term economic damages means objectively verifiable monetary losses incurred as a result of the provision of1 use of1 or payment for 7or failure to provide1 use1 or pay for7 health care services or medical products1 such as past and future medical expenses1 loss of past and future earnings1 cost of obtaining domestic services1 loss of employment1 and loss of business or employment opportunities4 7#g7 ,health care lawsuit ,the term health care lawsuit means any health care liability claim concerning the provision of health care goods or services or any medical product affecting interstate commerce1 or any health care liability action concerning the provision of health care goods or services or any medical product affecting interstate commerce1 brought in a ,state or ,federal court or pursuant to an alternative dispute resolution system1 against a health care provider1 a health care organization1 or the manufacturer1 distributor1 supplier1 marketer1 promoter1 or seller of a medical product1 regardless of the theory of liability on which the claim is based1 or the number of claimants1 plaintiffs1 defendants1 or other parties1 or the number of claims or causes of action1 in which the claimant alleges a health care liability claim4 ,such term does not include a claim or action which is based on criminal liability2 which seeks civil fines or penalties paid to ,federal1 ,state1 or local government2 or which is grounded in antitrust4 7#h7 ,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 system1 against a health care provider1 a health care organization1 or the manufacturer1 distributor1 supplier1 marketer1 promoter1 or seller of a medical product1 regardless of the theory of liability on which the claim is based1 or the number of plaintiffs1 defendants1 or other parties1 or the number of causes of action1 in which the claimant alleges a health care liability claim4 7#i7 ,health care liability claim ,the term health care liability claim means a demand by any person1 whether or not pursuant to ,,adr1 against a health care provider1 health care organization1 or the manufacturer1 distributor1 supplier1 marketer1 promoter1 or seller of a medical product1 including1 but not limited to1 third-party claims1 cross-claims1 counter-claims1 or contribution claims1 which are based upon the provision of1 use of1 or payment for 7or the failure to provide1 use1 or pay for7 health care services or medical products1 regardless of the theory of liability on which the claim is based1 or the number of plaintiffs1 defendants1 or other parties1 or the number of causes of action4 7#aj7 ,health care organization ,the term health care organization means any person or entity which is obligated to provide or pay for health benefits under any health plan1 including any person or entity acting under a contract or arrangement with a health care organization to provide or administer any health benefit4 7#aa7 ,health care provider ,the term health care provider means any person or entity required by ,state or ,federal laws or regulations to be licensed1 registered1 or certified to provide health care services1 and being either so licensed1 registered1 or certified1 or exempted from such requirement by other statute or regulation4 7#ab7 ,health care goods or services ,the term health care goods or services means any goods or services provided by a health care organization1 provider1 or by any individual working under the supervision of a health care provider1 that relates to the diagnosis1 prevention1 or treatment of any human disease or impairment1 or the assessment or care of the health of human beings4 7#ac7 ,malicious intent to injure ,the term malicious intent to injure means intentionally causing or attempting to cause physical injury other than providing health care goods or services4 7#ad7 ,medical product ,the term medical product means a drug1 device1 or biological product intended for humans1 and the terms drug1 device1 and biological product have the meanings given such terms in sections #bja7;g77#a7 and #bja7;h7 of the ,federal ,food1 ,drug1 and ,cosmetic ,act 7#ba ,u4,s4,c4 #cba7;g77#a7 and 7h77 and section #cea7;a7 of the ,public ,health ,service ,act 7#db ,u4,s4,c4 #bfb7;a771 respectively1 including any component or raw material used therein1 but excluding health care services4 7#ae7 ,noneconomic damages ,the term noneconomic damages means damages for physical and emotional pain1 suffering1 inconvenience1 physical impairment1 mental anguish1 disfigurement1 loss of enjoyment of life1 loss of society and companionship1 loss of consortium 7other than loss of domestic service71 hedonic damages1 injury to reputation1 and all other nonpecuniary losses of any kind or nature4 7#af7 ,punitive damages ,the term punitive damages means damages awarded1 for the purpose of punishment or deterrence1 and not solely for compensatory purposes1 against a health care provider1 health care organization1 or a manufacturer1 distributor1 or supplier of a medical product4 ,punitive damages are neither economic nor noneconomic damages4 7#ag7 ,recovery ,the term recovery means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim1 including all costs paid or advanced by any person4 ,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 purpose4 7#ah7 ,state ,the term ,state means each of the several ,states1 the ,district of ,columbia1 the ,commonwealth of ,puerto ,rico1 the ,virgin ,islands1 ,guam1 ,american ,samoa1 the ,northern ,mariana ,islands1 the ,trust ,territory of the ,pacific ,islands1 and any other territory or possession of the ,united ,states1 or any political subdivision thereof4 #baj4 ,effect on other laws 7a7 ,vaccine ,injury 7#a7 ,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-- 7,a7 this title does not affect the application of the rule of law to such an action2 and 7,b7 any rule of law prescribed by this title in conflict with a rule of law of such title ,,xxi shall not apply to such action4 7#b7 ,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 apply1 then this title or otherwise applicable law 7as determined under this title7 will apply to such aspect of such action4 7b7 ,other ,federal ,law ,except as provided in this section1 nothing in this title shall be deemed to affect any defense available to a defendant in a health care lawsuit or action under any other provision of ,federal law4 #baa4 ,state flexibility and protection of ,states' rights 7a7 ,health ,care ,lawsuits ,the provisions governing health care lawsuits set forth in this title preempt1 subject to subsections 7b7 and 7c71 ,state law to the extent that ,state law prevents the application of any provisions of law established by or under this title4 ,the provisions governing health care lawsuits set forth in this title supersede chapter #aga of title #bh1 ,united ,states ,code1 to the extent that such chapter-- 7#a7 provides for a greater amount of damages or contingent fees1 a longer period in which a health care lawsuit may be commenced1 or a reduced applicability or scope of periodic payment of future damages1 than provided in this title2 or 7#b7 prohibits the introduction of evidence regarding collateral source benefits1 or mandates or permits subrogation or a lien on collateral source benefits4 7b7 ,protection of ,states' ,rights and ,other ,laws 7#a7 ,any issue that is not governed by any provision of law established by or under this title 7including ,state standards of negligence7 shall be governed by otherwise applicable ,state or ,federal law4 7#b7 ,this title shall not preempt or supersede any ,state or ,federal law that imposes greater procedural or substantive protections for health care providers and health care organizations from liability1 loss1 or damages than those provided by this title or create a cause of action4 7c7 ,state ,flexibility ,no provision of this title shall be construed to preempt-- 7#a7 any ,state law 7whether effective before1 on1 or after the date of the enactment of this ,act7 that specifies a particular monetary amount of compensatory or punitive damages 7or the total amount of damages7 that may be awarded in a health care lawsuit1 regardless of whether such monetary amount is greater or lesser than is provided for under this title1 notwithstanding section #bjd7;a72 or 7#b7 any defense available to a party in a health care lawsuit under any other provision of ,state or ,federal law4 #bab4 ,applicability2 effective date ,this title shall apply to any health care lawsuit brought in a ,federal or ,state court1 or subject to an alternative dispute resolution system1 that is initiated on or after the date of the enactment of this ,act1 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 injury occurred4