article: 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 organization have committed fraud or collusion in the failure to bring an action on behalf of the injured minor. SEC. 5. COMPENSATING PATIENT INJURY. (a) Unlimited Amount of Damages for Actual Economic Losses in HEALTH Care Lawsuits.--In any health care lawsuit, nothing in this Act 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.--In any health care lawsuit, the amount of noneconomic damages recovered, 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. (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 $250,000 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 $250,000, 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. 6. 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 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. 7. 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. 8. 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.--A health care provider who prescribes, or who dispenses pursuant to a prescription, a drug or device (including blood products) approved by the Food and Drug Administration shall not be named as a party to a product liability lawsuit invoking such drug or device and shall not be liable to a claimant in a class action lawsuit against the manufacturer, distributor, or product seller of such drug or device. SEC. 9. 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 Act. SEC. 10. EFFECT ON OTHER LAWS. (a) 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 Act shall not affect the application of the rule of law to such an action; and (B) any rule of law prescribed by this Act 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 Act or otherwise applicable law (as determined under this Act) will apply to such aspect of such action. (b) Other Federal Law.--Except as provided in this section, nothing in this Act shall be deemed to affect any defense available to a defendant in a health care lawsuit or action under any other provision of Federal law. SEC. 11. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS. (a) HEALTH Care Lawsuits.--The provisions governing health care lawsuits set forth in this Act 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 Act. The provisions governing health care lawsuits set forth in this Act 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 Act; or (2) prohibits the introduction of evidence regarding collateral source benefits. (b) Preemption of Certain State Laws.--The provisions of this Act shall preempt any constitutional provision, statute, or rule of State law, whether enacted prior to, on, or after the date of enactment of this Act, that-- (1) prohibits the application of any limitation on the amount of compensatory, punitive, or total damages in a health care lawsuit; or (2) provides for a greater amount of compensatory, punitive, or total damages in a health care lawsuit than those provided for under this Act. (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 Act (including the State standards of negligence) shall be governed by otherwise applicable Federal or State law. (2) Rule of construction.--Nothing in this Act 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, health care organization, or the manufacturer, distributor, supplier, marketer, promoter, or seller of a medical product from liability, loss, or damages than those provided by this Act; (B) create a cause of action that is not otherwise available under Federal or State law; or (C) affect the scope of preemption of any other Federal law. SEC. 12. APPLICABILITY; EFFECTIVE DATE. This Act 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.
summary: Help Efficient, Accessible, Low-Cost, Timely Healthcare Act of 2005 or the HEALTH Act of 2005 - Sets forth provisions regulating lawsuits for health care liability claims concerning the provisions of health care goods or services or any medical product affecting interstate commerce. Sets a statute of limitations of three years after the date of manifestation of injury or one year after the claimant discovers the injury, with certain exceptions. Provides that nothing in this Act limits recovery of the full amount of available economic damages. Limits noneconomic damages to $250,000. Makes each party liable only for the amount of damages directly proportional to such party's percentage of responsibility. Allows the court to restrict the payment of attorney contingency fees. Limits the fees to a decreasing percentage based on the increasing value of the amount awarded. Prescribes qualifications for expert witnesses. Requires the court to reduce damages received by the amount of collateral source benefits to which a claimant is entitled, unless the payor of such benefits has the right to reimbursement or subrogation under Federal or State law. Authorizes the award of punitive damages only where: (1) it is proven by clear and convincing evidence that a person acted with malicious intent to injure the claimant or deliberately failed to avoid unnecessary injury such person knew the claimant was substantially certain to suffer; and (2) compensatory damages are awarded. Limits punitive damages to the greater of two times the amount of economic damages or $250,000. Prohibits a health care provider from being named as a party in a product liability or class action lawsuit for prescribing or dispensing an Food and Drug Administration (FDA)-approved prescription drug or device. Provides for periodic payments of future damage awards.