H.R. 5 (112^th): Protecting Access to Healthcare Act

GovTrack’s Bill Summary

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Library of Congress Summary

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress.

House Republican Conference Summary

The summary below was written by the House Republican Conference, which is the caucus of Republicans in the House of Representatives.

This summary can be found at http://www.gop.gov/bill/112/2/hr5.

Summary

Sec. 101.  Short Title.

Section 101 would establish the short title as the ‘‘Help Efficient, Accessible, Low Cost, Timely Healthcare (HEALTH) Act of 2012.’’

Sec. 102.  Findings and Purpose.

The purposes would include the following:  (1) improving 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) reducing the incidence of “defensive medicine” and lowering the cost of health care liability insurance, all of which contribute to the escalation of health care costs; (3) ensuring than persons with meritorious health care injury claims receive fair and adequate compensation, including reasonable noneconomic damages; (4) improving 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) providing an increasing share of information in the health care system which will reduce unintended injury and improve patient care.

Sec. 103.  Encouraging Speedy Resolution of Claims.

Section 103 states that a health care lawsuit could be commenced within 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.  In no event would the time for commencement of a health care lawsuit exceed 3 years after the manifestation of injury unless tolled for any of the following: (1) upon proof of fraud; (2) intentional concealment; or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.  The bill would provide an exception for alleged injuries sustained by a minor before the age of 6, in which case a health care lawsuit could be commenced by or on behalf of the minor until the later of 3 years from the date of manifestation of injury, or the date on which the minor attains the age of 8.  

Sec. 104.  Compensating Patient Injury.

Subsection 4(a) provides that in any health care lawsuit, nothing in this bill would limit a claimant’s recovery for the full amount of available economic damages, notwithstanding the limitation in subsection (b).  Under subsection 4(b), there would be no more than $250,000 in non-economic damages with respect to the same injury.  The cap in this section would apply separately to each party with a direct personal injury.  Subsection 104(c) would make clear that courts should apply the $250,000 cap for non-economic damages without calculations that include discounting to present value.  Juries would not be informed about the maximum award for non-economic damages.  Subsection 104(d) provides that each party shall be liable for the amount of damages allocated to such party.  This allocation shall be determined in direct proportion to such party’s percentage of responsibility for the damages. 

Sec. 105.  Maximizing Patient Recovery.

Section 105 would require that courts supervise the arrangements for payment of damages rendered by a judgment in a civil action to protect against conflicts of interests. This section would also establish a sliding fee schedule for the payment of attorneys’ contingency fees.  Payments would be allocated as follows: 40 percent of the first $50,000 recovered by the claimant(s); 33 1⁄3 percent of the next $50,000 recovered by the claimant(s); 25 percent of the next $500,000 recovered by the claimant(s); and 15 percent of any amount by which the recovery by the claimant(s) is in excess of $600,000.  The fee schedule would apply whether the recovery is by judgment, settlement, mediation, arbitration or any other form of alternative dispute resolution.

Sec. 106.  Punitive Damages.

Section 106 would specify guidelines for awarding punitive damages.  Under this section, punitive damages may be awarded, if otherwise permitted by applicable state or Federal law, against any person in a health care lawsuit.  The amount of punitive damages awarded could be as high as two times the amount of economic damages awarded or $250,000, whichever amount is greater. 

This section would not permit juries to be informed of the formula for calculating punitive damages. Moreover, punitive damages could only be awarded if it is first proven by clear and convincing evidence that a defendant 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.  This section would state that no demand for punitive damages could be included in a health care lawsuit as initially filed.  Further, punitive damages in healthcare lawsuits would not be awarded if compensatory damages are not awarded. 

Paragraph 106(c)(1) would shield manufacturers and distributors of medical products from punitive damages in certain instances.  The provision is intended to shield those companies that are fully compliant with all Federal Food, Drug, and Cosmetic Act (FFDCA) laws and regulations (in the case of biological medical products, full compliance with the FFDCA and section 351 of the Public Health Service Act (PHSA) is required).  The FFDCA ensures the safety and effectiveness of drugs, devices, and biological products, all of which are covered by this section.  Unless a claimant could demonstrate by clear and convincing evidence a lack of compliance with any FFDCA or PHSA section 351 law or regulation, then a manufacturer, distributor or supplier would be shielded from punitive damages.  All other damages, if proven, would still available to the claimant.

Under paragraph 106(c)(1), if a claimant could prove by clear and convincing evidence that a manufacturer, distributor or supplier has not complied with the FFDCA or section 351 of the PHSA, the claimant would then need to further prove that the harm attributed to the medical product resulted from the proven compliance failure.  A technical violation of the Act that is wholly unrelated to the harm would not remove the shield provided for in this section. Rather, punitive damages would only be available to claimants who could prove both a violation of the Act or regulations, and then could draw the nexus between failed compliance and harm.  Subsection 106(c) would not create an affirmative obligation on the part of the FDA to demonstrate compliance or noncompliance for the purposes of private litigation.  The section would also revoke the shield for persons: (1) who knowingly misrepresent information to the FDA or withhold information from the FDA; (2) who bribe government officials for the purpose of obtaining approval of medical products; and (3) who caused the medical product, which caused the claimant’s harm, to be misbranded or adulterated.   

Paragraph 106(c)(2) would prohibit a health care provider who prescribes, or who dispenses pursuant to a prescription, a medical product that is approved by the FDA from being named as a party in a product liability lawsuit.  

Paragraph 106(c)(3) would provide that when the alleged harm relates to the adequacy of the packaging or labeling of a drug required to have tamper-resistant packaging, there would be no liability for punitive damages for a manufacturer or seller unless the trier of fact finds by clear and convincing evidence that the packaging or labeling is substantially out of compliance with applicable regulations.

Sec. 107.  Authorization of Payment of Future Damages to Claimants in Health Care. Lawsuits

Section 107 would require the court, at the request of any party, to order that the award of future damages equaling or exceeding $50,000 be paid by periodic payments as long as the liable party has sufficient insurance or other assets to fund periodic payments.

Sec. 108.  Definitions.

Section 108 would define many of the terms included in the legislation. 

Sec. 109.  Effect on Other Laws.

Section 109 would state that this legislation does not apply to civil actions brought for a vaccine-related injury or death which is covered under provisions of the Public Health Service Act.  It also would state that nothing in this bill should affect any defense available to a defendant in a health care lawsuit or action under any other provision of federal law.

Sec. 110.  State Flexibility and Protection of State’s Rights.

Section 110 would specify many of the rules governing the relationship between the HEALTH Act and state and Federal laws. Specifically, subsection 110(a) would provide that provisions governing health care lawsuits outlined in the bill preempt state law to the extent that state law prevents the application of these provisions.  The bill would supersede the Federal Tort Claims Act (FTCA) to the extent that the FTCA 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 application of periodic payments of future damages. The FTCA would also be superseded if it prohibits the introduction of evidence regarding collateral source benefits, or mandates or permits subrogation or a lien on collateral source benefits.  

Under subsection 110(b), if an issue would not be addressed by a provision of law established by this legislation, it would be governed by otherwise applicable state or Federal law.  The subsection further states that the bill would not preempt or supersede any law that imposes greater procedural or substantive protections for health care providers and health care organizations from liability, loss, or damages.   

Subsection 110(c) would state that this legislation does not preempt any state law (enacted before, on, or after the date of enactment of H.R. 5) that specifies a particular amount of compensatory or punitive damages (or the total amount of damages) that may be awarded in a health care lawsuit.  The subsection would also provide that the bill does not preempt any defense available to a party in a health care lawsuit under any other provision of state or Federal law.

Sec. 111.  Applicability; Effective Date.

Section 111 would provide that the provisions of the bill apply to any health care lawsuit brought in Federal or state court, or subject to alternative dispute resolutions system, that would be initiated on or after the date of the enactment of the bill, except that any health care lawsuit arising from an injury occurring prior to the date of the enactment of the bill would be governed by the applicable statute of limitations provision in effect at the time the injury occurred.

TITLE II—REPEAL OF INDEPENDENT PAYMENT ADVISORY BOARD (IPAB)

According to the Committee on Ways and Means report (House Report 112-412 – Part 1),Title II would “repeal Section 1899A of the Social Security Act, which contains the IPAB provisions, while leaving in place provisions which provide for expedited consideration of IPAB-related proposals to reduce Medicare spending.  Those expedited procedures also created a point of order against a measure repealing them, requiring the House to take additional action to enable consideration of the bill. However, with IPAB repealed, there would be no such proposal for Congress to consider under those expedited procedures.” 

Cost

Title I and Title II:  CBO estimates that enacting Title I and Title II together would reduce future deficits by $13.7 billion over the 2013-2017 period and by $45.5 billion over the 2013-2022 period. 

Title I:  CBO estimates that the changes in direct spending and revenues resulting from enactment of the limitations on medical malpractice litigation would reduce deficits by $48.6 billion over the 2013-2022 period.

Title II:  CBO estimates that enacting the provision that would repeal the Independent Payment Advisory Board would increase deficits by $3.1 billion over the 2013-2022 period.

CBO estimates that enacting the bill would reduce direct spending and increase revenues; therefore, pay-as-you-go procedures apply.

For additional detail, please see CBO’s complete cost estimate here.

House Democratic Caucus Summary

The House Democratic Caucus does not provide summaries of bills.

So, yes, we display the House Republican Conference’s summaries when available even if we do not have a Democratic summary available. That’s because we feel it is better to give you as much information as possible, even if we cannot provide every viewpoint.

We’ll be looking for a source of summaries from the other side in the meanwhile.