S.Amdt. 3133

SA 3133. Mr. WICKER submitted an amendment intended to be proposed to
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr.
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal
Revenue Code of 1986 to modify the first-time homebuyers credit in the
case of members of the Armed Forces and certain other Federal
employees, and for other purposes; which was ordered to lie on the
table; as follows:

On page 2074, after line 25, add the following:

TITLE X--ADDITIONAL PROVISIONS

Subtitle A--Physician Payment Update Commission

SEC. 10001. SHORT TITLE.

This subtitle may be cited as the ``Physician Payment
Update Commission Act''.

SEC. 10002. ESTABLISHMENT OF PHYSICIAN PAYMENT UPDATE
COMMISSION.

(a) Medicare Physician Fee Schedule Update and Sunset of
Medicare Sustainable Growth Rate Formula.--
(1) Update for 2010 and 2011.--Section 1848(d)(10) of the
Social Security Act (42 U.S.C. 1395w-4(d)(10)), as added by
section 3101, is amended to read as follows:
``(10) Update for 2010 and 2011.--
``(A) In general.--The update to the single conversion
factor established in paragraph (1)(C) for 2010 and 2011
shall be 0 percent.
``(B) No effect on computation of conversion factor for
2012 and subsequent years.--The conversion factor under this
subsection shall be computed under paragraph (1)(A) for 2012
and subsequent years as if subparagraph (A) had never
applied.''.
(2) Sunset of medicare sustainable growth rate formula.--
Effective January 1, 2012, subsection (f) of section 1848 of
the Social Security Act (42 U.S.C. 1395w-4) is repealed.
(b) Establishment of Physician Payment Update Commission.--
(1) In general.--There is established a commission to be
known as the ``Physician Payment Update Commission''
(referred to in this section as the ``Commission'').
(2) Membership.--
(A) Composition.--The Commission shall be composed of 17
members appointed by the Comptroller General of the United
States, upon the recommendation of the majority and minority
leaders of the Senate and the Speaker and minority leader of
the House of Representatives.
(B) Date of appointments.--Members of the Commission shall
be appointed not later than 2 months after the date of
enactment of this Act.
(3) Qualifications.--
(A) In general.--The membership of the Commission shall
include individuals with national recognition for their
expertise in health finance and economics, actuarial science,
integrated delivery systems, allopathic and osteopathic
medicine and other areas of health services, and other
related fields, who provide a mix of different professionals,
broad geographic representation, and a balance between urban
and rural representatives.
(B) Inclusion.--The members of the Commission shall include
(but not be limited to) physicians and other health
professionals, employers, third-party payers, individuals
skilled in the conduct and interpretation of biomedical,
health services, and health economics research and technology
assessment. Such membership shall also include
representatives of consumers and the elderly.
(C) Majority physicians and other health professionals.--
Individuals who are physicians or other health professionals
shall constitute a majority of the membership of the
Commission.
(4) Term; vacancies.--
(A) Term.--A member shall be appointed for the life of the
Commission.
(B) Vacancies.--A vacancy on the Commission--
(i) shall not affect the powers of the Commission; and
(ii) shall be filled in the same manner as the original
appointment was made.
(5) Meetings.--The Commission shall meet at the call of the
Chairperson.
(6) Quorum.--A majority of the members of the Commission
shall constitute a quorum, but a lesser number of members may
hold hearings.
(7) Chairperson.--The Comptroller General shall designate a
member of the Commission, at the time of the appointment of
the member, as Chairperson.
(c) Duties.--
(1) Study.--The Commission shall conduct a study of all
matters relating to payment rates under the Medicare
physician fee schedule under section 1848 of the Social
Security Act (42 U.S.C. 1395w-4).
(2) Recommendations.--The Commission shall develop
recommendations on the establishment of a new physician
payment system under the Medicare program that would
appropriately reimburse physicians by keeping pace with
increases in medical practice costs and providing stable,
positive Medicare updates.
(3) Report.--Not later than December 1, 2010, the
Commission shall submit to the appropriate Committees of
Congress and the Medicare Payment Advisory Commission--
(A) a detailed statement of the findings and conclusions of
the Commission;
(B) the recommendations of the Commission for such
legislation and administrative actions as the Commission
considers appropriate (including proposed legislative
language to carry out such recommendations); and
(C) a long-term CBO cost estimate regarding such
recommendations (as described under subsection (i)).
(d) Powers.--
(1) Hearings.--The Commission may hold such hearings, meet
and act at such times and places, take such testimony, and
receive such evidence as the Commission considers advisable
to carry out this section.
(2) Information from federal agencies.--
(A) In general.--The Commission may secure directly from a
Federal agency such information as the Commission considers
necessary to carry out this section.

[[Page S12927]]

(B) Provision of information.--On request of the
Chairperson of the Commission, the head of the agency shall
provide the information to the Commission.
(3) Postal services.--The Commission may use the United
States mails in the same manner and under the same conditions
as other agencies of the Federal Government.
(e) Commission Personnel Matters.--
(1) Compensation of members.--
(A) In general.--Members of the Commission shall serve
without compensation in addition to the compensation received
for the services of the member as an officer or employee of
the Federal Government.
(B) Travel expenses.--A member of the Commission shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for an employee of an agency
under subchapter I of chapter 57 of title 5, United States
Code, while away from the home or regular place of business
of the member in the performance of the duties of the
Commission.
(2) Staff and support services.--
(A) Executive director.--The Chairperson shall appoint an
executive director of the Commission.
(B) Staff.--With the approval of the Commission, the
executive director may appoint such personnel as the
executive director considers appropriate.
(C) Applicability of civil service laws.--The staff of the
Commission shall be appointed without regard to the
provisions of title 5, United States Code, governing
appointments in the competitive service, and shall be paid
without regard to the provisions of chapter 51 and subchapter
III of chapter 53 of such title (relating to classification
and General Schedule pay rates).
(D) Experts and consultants.--With the approval of the
Commission, the executive director may procure temporary and
intermittent services under section 3109(b) of title 5,
United States Code.
(f) Termination of Commission.--The Commission shall
terminate 30 days after the date on which the Commission
submits its report under subsection (c)(3).
(g) Review and Response to Recommendations by the Medicare
Payment Advisory Commission.--
(1) In general.--Not later than February 1, 2011, the
Medicare Payment Advisory Commission shall--
(A) review the recommendations included in the report
submitted under subsection (c)(3);
(B) examine the budget consequences of such
recommendations, directly or through consultation with
appropriate expert entities; and
(C) submit to the appropriate Committees of Congress a
report on such review.
(2) Contents of report on review of commission
recommendations.--The report submitted under paragraph (1)(C)
shall include--
(A) if the Medicare Payment Advisory Commission supports
the recommendations of the Commission, the reasons for such
support; or
(B) if the Medicare Payment Advisory Commission does not
support such recommendations, the recommendations of the
Medicare Payment Advisory Commission, together with an
explanation as to why the Medicare Payment Advisory
Commission does not support the recommendations of the
Commission.
(h) Authorization of Appropriations.--There are authorized
to be appropriated such sums as may be necessary for the
Commission to carry out this section. Such appropriation
shall be payable from the Federal Supplementary Medical
Insurance Trust Fund under section 1841 of the Social
Security Act (42 U.S.C. 1395t).
(i) Long-Term CBO Cost Estimate.--
(1) Preparation and submission.--When the Commission
submits a written request to the Director of the
Congressional Budget Office for a long-term CBO cost estimate
of recommended legislation or administrative actions (as
described under subsection (c)(3)), the Director shall
prepare the estimate and have it published in the
Congressional Record as expeditiously as possible.
(2) Content.--A long-term CBO cost estimate shall include--
(A) an estimate of the cost of each provision (if
practicable) or group of provisions of the recommended
legislation or administrative actions for first fiscal year
it would take effect and for each of the 49 fiscal years
thereafter; and
(B) a statement of any estimated future costs not reflected
by the estimate described in subparagraph (A).
(3) Form.--To the extent that a long-term CBO cost estimate
presented in dollars is impracticable, the Director of the
Congressional Budget Office may instead present the estimate
in terms of percentages of gross domestic product, with
rounding to the nearest \1/10\ of 1 percent of gross domestic
product.
(4) Limitations on discretionary spending.--A long-term CBO
cost estimate shall only consider the effects of provisions
affecting revenues and direct spending (as defined by the
Balanced Budget and Emergency Deficit Control Act of 1985),
and shall not assume that any changes in outlays will result
from limitations on, or reductions in, annual appropriations.
(j) Expedited Consideration of Commission
Recommendations.--
(1) Introduction.--
(A) In general.--The proposed legislative language
contained in the report submitted pursuant to subsection
(c)(3) (referred to in this subsection as the ``Commission
bill'') shall be introduced within the first 10 calendar days
of the 112th Congress (or on the first session day
thereafter) in the House of Representatives and in the Senate
by the majority leader of each House of Congress, for
himself, the minority leader of each House of Congress, for
himself, or any member of the House designated by the
majority leader or minority leader. If the Commission bill is
not introduced in accordance with the preceding sentence in
either House of Congress, then any Member of that House may
introduce the Commission bill on any day thereafter. Upon
introduction, the Commission bill shall be referred to the
appropriate committees under subparagraph (B).
(B) Committee consideration.--A Commission bill introduced
in either House of Congress shall be jointly referred to the
committee or committees of jurisdiction, which shall report
the bill without any revision and with a favorable
recommendation, an unfavorable recommendation, or without
recommendation, not later than 10 calendar days after the
date of introduction of the bill in that House. If any
committee fails to report the bill within that period, that
committee shall be automatically discharged from
consideration of the bill, and the bill shall be placed on
the appropriate calendar.
(2) Expedited procedure.--
(A) In the house of representatives.--
(i) In general.--Not later than 5 days of session after the
date on which a Commission bill is reported or discharged
from all committees to which it was referred, the majority
leader of the House of Representatives or the majority
leader's designee shall move to proceed to the consideration
of the Commission bill. It shall also be in order for any
Member of the House of Representatives to move to proceed to
the consideration of the Commission bill at any time after
the conclusion of such 5-day period.
(ii) Motion to proceed.--A motion to proceed to the
consideration of the Commission bill is highly privileged in
the House of Representatives and is not debatable. The motion
is not subject to amendment or to a motion to postpone
consideration of the Commission bill. A motion to proceed to
the consideration of other business shall not be in order. A
motion to reconsider the vote by which the motion to proceed
is agreed to or not agreed to shall not be in order. If the
motion to proceed is agreed to, the House of Representatives
shall immediately proceed to consideration of the Commission
bill without intervening motion, order, or other business,
and the Commission bill shall remain the unfinished business
of the House of Representatives until disposed of.
(iii) Limits on debate.--Debate in the House of
Representatives on a Commission bill under this paragraph
shall not exceed a total of 100 hours, which shall be divided
equally between those favoring and those opposing the bill. A
motion further to limit debate is in order and shall not be
debatable. It shall not be in order to move to recommit a
Commission bill under this paragraph or to move to reconsider
the vote by which the bill is agreed to or disagreed to.
(iv) Appeals.--Appeals from decisions of the chair relating
to the application of the Rules of the House of
Representatives to the procedure relating to a Commission
bill shall be decided without debate.
(v) Application of house rules.--Except to the extent
specifically provided in this paragraph, consideration of a
Commission bill shall be governed by the Rules of the House
of Representatives. It shall not be in order in the House of
Representatives to consider any Commission bill introduced
pursuant to the provisions of this subsection under a
suspension of the rules or under a special rule.
(vi) No amendments.--No amendment to the Commission bill
shall be in order in the House of Representatives.
(vii) Vote on final passage.--In the House of
Representatives, immediately following the conclusion of
consideration of the Commission bill, the vote on final
passage of the Commission bill shall occur without any
intervening action or motion, requiring an affirmative vote
of \3/5\ of the Members, duly chosen and sworn. If the
Commission bill is passed, the Clerk of the House of
Representatives shall cause the bill to be transmitted to the
Senate before the close of the next day of session of the
House.
(B) In the senate.--
(i) In general.--Not later than 5 days of session after the
date on which a Commission bill is reported or discharged
from all committees to which it was referred, the majority
leader of the Senate or the majority leader's designee shall
move to proceed to the consideration of the Commission bill.
It shall also be in order for any Member of the Senate to
move to proceed to the consideration of the Commission bill
at any time after the conclusion of such 5-day period.
(ii) Motion to proceed.--A motion to proceed to the
consideration of the Commission bill is privileged in the
Senate and is not debatable. The motion is not subject to
amendment or to a motion to postpone consideration of the
Commission bill. A motion to proceed to consideration of the
Commission bill may be made even though a previous motion to
the same effect has been disagreed to. A motion to proceed to
the consideration of other business shall not be in order. A
motion to reconsider the vote by which the motion to proceed
is agreed to or not agreed to shall not be in order. If the
motion to proceed is agreed to, the Senate shall immediately
proceed to consideration of the Commission bill without
intervening motion,

[[Page S12928]]

order, or other business, and the Commission bill shall
remain the unfinished business of the Senate until disposed
of.
(iii) Limits on debate.--In the Senate, consideration of
the Commission bill and on all debatable motions and appeals
in connection therewith shall not exceed a total of 100
hours, which shall be divided equally between those favoring
and those opposing the Commission bill. A motion further to
limit debate on the Commission bill is in order and is not
debatable. Any debatable motion or appeal is debatable for
not to exceed 1 hour, to be divided equally between those
favoring and those opposing the motion or appeal. All time
used for consideration of the Commission bill, including time
used for quorum calls and voting, shall be counted against
the total 100 hours of consideration.
(iv) No amendments.--No amendment to the Commission bill
shall be in order in the Senate.
(v) Motion to recommit.--A motion to recommit a Commission
bill shall not be in order under this paragraph.
(vi) Vote on final passage.--In the Senate, immediately
following the conclusion of consideration of the Commission
bill and a request to establish the presence of a quorum, the
vote on final passage of the Commission bill shall occur and
shall require an affirmative vote of \3/5\ of the Members,
duly chosen and sworn.
(vii) Other motions not in order.--A motion to postpone or
a motion to proceed to the consideration of other business is
not in order in the Senate. A motion to reconsider the vote
by which the Commission bill is agreed to or not agreed to is
not in order in the Senate.
(viii) Consideration of the house bill.--

(I) In general.--If the Senate has received the House
companion bill to the Commission bill introduced in the
Senate prior to the vote required under clause (vi) and the
House companion bill is identical to the Commission bill
introduced in the Senate, then the Senate shall consider, and
the vote under clause (vi) shall occur on, the House
companion bill.
(II) Procedure after vote on senate bill.--If the Senate
votes, pursuant to clause (vi), on the bill introduced in the
Senate, the Senate bill shall be held pending receipt of the
House message on the bill. Upon receipt of the House
companion bill, if the House bill is identical to the Senate
bill, the House bill shall be deemed to be considered, read
for the third time, and the vote on passage of the Senate
bill shall be considered to be the vote on the bill received
from the House.

(C) No suspension.--No motion to suspend the application of
this paragraph shall be in order in the Senate or in the
House of Representatives.

Subtitle B--Medical Care Access Protection

SEC. 10101. SHORT TITLE.

This subtitle may be cited as the ``Medical Care Access
Protection Act of 2009'' or the ``MCAP Act''.

SEC. 10102. FINDINGS AND PURPOSE.

(a) Findings.--
(1) Effect on health care access and costs.--Congress finds
that our 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 is a costly and ineffective 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 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.
(3) Effect on federal spending.--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--
(A) the large number of individuals who receive health care
benefits under programs operated or financed by the Federal
Government;
(B) 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
(C) the large number of health care providers who provide
items or services for which the Federal Government makes
payments.
(b) Purpose.--It is the purpose of this subtitle 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. 10103. DEFINITIONS.

In this subtitle:
(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) Compensatory damages.--The term ``compensatory
damages'' means objectively verifiable monetary losses
incurred as a result of the provision of, use of, or payment
for (or failure to provide, use, or pay for) 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, 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. Such term includes economic
damages and noneconomic damages, as such terms are defined in
this section.
(5) 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.
(6) Economic damages.--The term ``economic damages'' means
objectively verifiable monetary losses incurred as a result
of the provision of, use of, or payment for (or failure to
provide, use, or pay for) 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.
(7) Health care goods or services.--The term ``health care
goods or services'' means any goods or services provided by a
health care institution, provider, or by any individual
working under the supervision of a health care provider, that
relates to the diagnosis, prevention, care, or treatment of
any human disease or impairment, or the assessment of the
health of human beings.
(8) Health care institution.--The term ``health care
institution'' means any entity licensed under Federal or
State law to provide health care services (including but not
limited to ambulatory surgical centers, assisted living
facilities, emergency medical services providers, hospices,
hospitals and hospital systems, nursing homes, or other
entities licensed to provide such services).
(9) Health care lawsuit.--The term ``health care lawsuit''
means any health care liability claim concerning the
provision of health care goods or services affecting
interstate commerce, or any health care liability action
concerning the provision of (or the failure to provide)
health care goods or services affecting interstate commerce,
brought in a State or Federal court or pursuant to an
alternative dispute resolution system, against a health care
provider or a health care institution 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.
(10) 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 or a health
care institution 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.

[[Page S12929]]

(11) 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 or health
care institution, including third-party claims, cross-claims,
counter-claims, or contribution claims, which are based upon
the provision of, use of, or payment for (or the failure to
provide, use, or pay for) health care services, 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.
(12) Health care provider.--
(A) In general.--The term ``health care provider'' means
any person (including but not limited to a physician (as
defined by section 1861(r) of the Social Security Act (42
U.S.C. 1395x(r)), registered nurse, dentist, podiatrist,
pharmacist, chiropractor, or optometrist) required by State
or Federal law 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.
(B) Treatment of certain professional associations.--For
purposes of this subtitle, a professional association that is
organized under State law by an individual physician or group
of physicians, a partnership or limited liability partnership
formed by a group of physicians, a nonprofit health
corporation certified under State law, or a company formed by
a group of physicians under State law shall be treated as a
health care provider under subparagraph (A).
(13) 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 services.
(14) 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.
(15) Punitive damages.--The term ``punitive damages'' means
damages awarded, for the purpose of punishment or deterrence,
and not solely for compensatory purposes, against a health
care provider or health care institution. Punitive damages
are neither economic nor noneconomic damages.
(16) 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.
(17) 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. 10104. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

(a) In General.--Except as otherwise provided for in this
section, the time for the commencement of a health care
lawsuit shall be 3 years after the date of manifestation of
injury or 1 year after the claimant discovers, or through the
use of reasonable diligence should have discovered, the
injury, whichever occurs first.
(b) General Exception.--The time for the commencement of a
health care lawsuit shall not exceed 3 years after the date
of manifestation of injury unless the tolling of time was
delayed as a result of--
(1) 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.
(c) Minors.--An action by a minor shall be commenced within
3 years from the date of the alleged manifestation of injury
except that if such minor is under the full age of 6 years,
such action shall be commenced within 3 years of the
manifestation of injury, or prior to the eighth birthday of
the minor, 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 or
health care institution have committed fraud or collusion in
the failure to bring an action on behalf of the injured
minor.
(d) Rule 11 Sanctions.--Whenever a Federal or State court
determines (whether by motion of the parties or whether on
the motion of the court) that there has been a violation of
Rule 11 of the Federal Rules of Civil Procedure (or a similar
violation of applicable State court rules) in a health care
liability action to which this subtitle applies, the court
shall impose upon the attorneys, law firms, or pro se
litigants that have violated Rule 11 or are responsible for
the violation, an appropriate sanction, which shall include
an order to pay the other party or parties for the reasonable
expenses incurred as a direct result of the filing of the
pleading, motion, or other paper that is the subject of the
violation, including a reasonable attorneys' fee. Such
sanction shall be sufficient to deter repetition of such
conduct or comparable conduct by others similarly situated,
and to compensate the party or parties injured by such
conduct.

SEC. 10105. COMPENSATING PATIENT INJURY.

(a) Unlimited Amount of Damages for Actual Economic Losses
in Health Care Lawsuits.--In any health care lawsuit, nothing
in this subtitle shall limit the recovery by a claimant of
the full amount of the available economic damages,
notwithstanding the limitation contained in subsection (b).
(b) Additional Noneconomic Damages.--
(1) Health care providers.--In any health care lawsuit
where final judgment is rendered against a health care
provider, the amount of noneconomic damages recovered from
the provider, if otherwise available under applicable Federal
or State law, may be as much as $250,000, regardless of the
number of parties other than a health care institution
against whom the action is brought or the number of separate
claims or actions brought with respect to the same
occurrence.
(2) Health care institutions.--
(A) Single institution.--In any health care lawsuit where
final judgment is rendered against a single health care
institution, the amount of noneconomic damages recovered from
the institution, if otherwise available under applicable
Federal or State law, may be as much as $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 occurrence.
(B) Multiple institutions.--In any health care lawsuit
where final judgment is rendered against more than one health
care institution, the amount of noneconomic damages recovered
from each institution, if otherwise available under
applicable Federal or State law, may be as much as $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 occurrence, except that the
total amount recovered from all such institutions in such
lawsuit shall not exceed $500,000.
(c) No Discount of Award for Noneconomic Damages.--In any
health care lawsuit--
(1) an award for future noneconomic damages shall not be
discounted to present value;
(2) the jury shall not be informed about the maximum award
for noneconomic damages under subsection (b);
(3) an award for noneconomic damages in excess of the
limitations provided for in subsection (b) 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; and
(4) if separate awards are rendered for past and future
noneconomic damages and the combined awards exceed the
limitations described in subsection (b), 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. 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.

SEC. 10106. MAXIMIZING PATIENT RECOVERY.

(a) Court Supervision of Share of Damages Actually Paid to
Claimants.--
(1) In general.--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.
(2) Contingency fees.--
(A) In general.--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.
(B) Limitation.--The total of all contingent fees for
representing all claimants in a health care lawsuit shall not
exceed the following limits:
(i) 40 percent of the first $50,000 recovered by the
claimant(s).
(ii) 33\1/3\ percent of the next $50,000 recovered by the
claimant(s).
(iii) 25 percent of the next $500,000 recovered by the
claimant(s).
(iv) 15 percent of any amount by which the recovery by the
claimant(s) is in excess of $600,000.
(b) Applicability.--
(1) In general.--The limitations in subsection (a) shall
apply whether the recovery is by judgment, settlement,
mediation, arbitration, or any other form of alternative
dispute resolution.
(2) Minors.--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.
(c) Expert Witnesses.--
(1) Requirement.--No individual shall be qualified to
testify as an expert witness concerning issues of negligence
in any health

[[Page S12930]]

care lawsuit against a defendant unless such individual--
(A) except as required under paragraph (2), is a health
care professional who--
(i) is appropriately credentialed or licensed in 1 or more
States to deliver health care services; and
(ii) typically treats the diagnosis or condition or
provides the type of treatment under review; and
(B) can demonstrate by competent evidence that, as a result
of training, education, knowledge, and experience in the
evaluation, diagnosis, and treatment of the disease or injury
which is the subject matter of the lawsuit against the
defendant, the individual was substantially familiar with
applicable standards of care and practice as they relate to
the act or omission which is the subject of the lawsuit on
the date of the incident.
(2) Physician review.--In a health care lawsuit, if the
claim of the plaintiff involved treatment that is recommended
or provided by a physician (allopathic or osteopathic), an
individual shall not be qualified to be an expert witness
under this subsection with respect to issues of negligence
concerning such treatment unless such individual is a
physician.
(3) Specialties and subspecialties.--With respect to a
lawsuit described in paragraph (1), a court shall not permit
an expert in one medical specialty or subspecialty to testify
against a defendant in another medical specialty or
subspecialty unless, in addition to a showing of substantial
familiarity in accordance with paragraph (1)(B), there is a
showing that the standards of care and practice in the two
specialty or subspecialty fields are similar.
(4) Limitation.--The limitations in this subsection shall
not apply to expert witnesses testifying as to the degree or
permanency of medical or physical impairment.

SEC. 10107. ADDITIONAL HEALTH BENEFITS.

(a) In General.--The amount of any damages received by a
claimant in any health care lawsuit shall be reduced by the
court by the amount of any collateral source benefits to
which the claimant is entitled, less any insurance premiums
or other payments made by the claimant (or by the spouse,
parent, child, or legal guardian of the claimant) to obtain
or secure such benefits.
(b) Preservation of Current Law.--Where a payor of
collateral source benefits has a right of recovery by
reimbursement or subrogation and such right is permitted
under Federal or State law, subsection (a) shall not apply.
(c) Application of Provision.--This section shall apply to
any health care lawsuit that is settled or resolved by a fact
finder.

SEC. 10108. PUNITIVE DAMAGES.

(a) Punitive Damages Permitted.--
(1) In general.--Punitive damages may, if otherwise
available under applicable State or Federal law, 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 claimant, or that
such person deliberately failed to avoid unnecessary injury
that such person knew the claimant was substantially certain
to suffer.
(2) Filing of lawsuit.--No demand for punitive damages
shall be included in a health care lawsuit as initially
filed. 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 court, upon review of
supporting and opposing affidavits or after a hearing, after
weighing the evidence, that the claimant has established by a
substantial probability that the claimant will prevail on the
claim for punitive damages.
(3) Separate proceeding.--At the request of any party in a
health care lawsuit, the trier of fact shall consider in a
separate proceeding--
(A) whether punitive damages are to be awarded and the
amount of such award; and
(B) the amount of punitive damages following a
determination of punitive liability.
If a separate proceeding is requested, evidence relevant only
to the claim for punitive damages, as determined by
applicable State law, shall be inadmissible in any proceeding
to determine whether compensatory damages are to be awarded.
(4) Limitation where no compensatory damages are awarded.--
In any health care lawsuit where no judgment for compensatory
damages is rendered against a person, no punitive damages may
be awarded with respect to the claim in such lawsuit against
such person.
(b) Determining Amount of Punitive Damages.--
(1) Factors considered.--In determining the amount of
punitive damages under this section, the trier of fact shall
consider only the following:
(A) the severity of the harm caused by the conduct of such
party;
(B) the duration of the conduct or any concealment of it by
such party;
(C) the profitability of the conduct to such party;
(D) the number of products sold or medical procedures
rendered for compensation, as the case may be, by such party,
of the kind causing the harm complained of by the claimant;
(E) any criminal penalties imposed on such party, as a
result of the conduct complained of by the claimant; and
(F) the amount of any civil fines assessed against such
party as a result of the conduct complained of by the
claimant.
(2) Maximum award.--The amount of punitive damages awarded
in a health care lawsuit may not exceed an amount equal to
two times the amount of economic damages awarded in the
lawsuit or $250,000, whichever is greater. The jury shall not
be informed of the limitation under the preceding sentence.
(c) Liability of Health Care Providers.--
(1) In general.--A health care provider who prescribes, or
who dispenses pursuant to a prescription, a drug, biological
product, or medical device approved by the Food and Drug
Administration, for an approved indication of the drug,
biological product, or medical device, shall not be named as
a party to a product liability lawsuit invoking such drug,
biological product, or medical device and shall not be liable
to a claimant in a class action lawsuit against the
manufacturer, distributor, or product seller of such drug,
biological product, or medical device.
(2) Medical product.--The term ``medical product'' means a
drug or device intended for humans. The terms ``drug'' and
``device'' 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), respectively, including any component or
raw material used therein, but excluding health care
services.

SEC. 10109. 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 subtitle.

SEC. 10110. EFFECT ON OTHER LAWS.

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

SEC. 10111. STATE FLEXIBILITY AND PROTECTION OF STATES'
RIGHTS.

(a) Health Care Lawsuits.--The provisions governing health
care lawsuits set forth in this subtitle shall 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 subtitle. The provisions
governing health care lawsuits set forth in this subtitle
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 subtitle; or
(2) prohibits the introduction of evidence regarding
collateral source benefits.
(b) Preemption of Certain State Laws.--No provision of this
subtitle 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
compensatory or punitive 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 subtitle,
notwithstanding section 10105(a).

[[Page S12931]]

(c) Protection of State's Rights and Other Laws.--
(1) In general.--Any issue that is not governed by a
provision of law established by or under this subtitle
(including the State standards of negligence) shall be
governed by otherwise applicable Federal or State law.
(2) Rule of construction.--Nothing in this subtitle shall
be construed to--
(A) preempt or supersede any Federal or State law that
imposes greater procedural or substantive protections (such
as a shorter statute of limitations) for a health care
provider or health care institution from liability, loss, or
damages than those provided by this subtitle;
(B) preempt or supercede any State law that permits and
provides for the enforcement of any arbitration agreement
related to a health care liability claim whether enacted
prior to or after the date of enactment of this Act;
(C) create a cause of action that is not otherwise
available under Federal or State law; or
(D) affect the scope of preemption of any other Federal
law.

SEC. 10112. APPLICABILITY; EFFECTIVE DATE.

This subtitle 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 enactment of this Act shall be governed
by the applicable statute of limitations provisions in effect
at the time the injury occurred.

Subtitle C--Rescission of Unused Stimulus Funds

SEC. 10201. RESCISSION IN ARRA.

Effective as of October 1, 2010, any unobligated balances
available on such date of funds made available by division A
of the American Recovery and Reinvestment Act of 2009 (Public
Law 111-5) are rescinded.
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