	Introduction

This report does not examine the merits or possible effects of medical malpractice litigation or medical malpractice liability reform on the health care system or on the cost of liability insurance premiums. Rather, this report explains specific tort reform proposals that are commonly considered in medical malpractice liability reform measures, and discusses their individual arguments in favor of and against such proposals from a legal perspective. These include imposing caps on noneconomic damages and punitive damages; permitting defendants to be held liable for no more than their share of responsibility for a plaintiff's injuries; requiring that damage awards be reduced by amounts plaintiffs receive from collateral sources such as health insurance; limiting lawyers' contingent fees; creating a federal statute of limitations; and requiring that awards of future damages in some cases be paid periodically rather than in a lump sum. 5 . Congress also has the power, under the Commerce Clause of the U.S. Constitution (Art. I, § 8, cl. 3), to enact tort reform laws that would affect actions for medical malpractice liability brought under state law. See Table A-2 for a 50-state survey of caps on noneconomic and punitive damages. See Table A-3 for a 50-state survey of the burden of proof standards for punitive damages and whether a state requires a separate proceeding to determine such damages. H.R. See Table A-4 for a 50-state survey of whether periodic payment of damages is to be considered in an award for a medical malpractice action. H.R. See Table A-4 for a 50-state survey of whether the doctrine of joint and several liability applies to malpractice actions in a state. An amendment that was adopted during the House Committee on the Judiciary mark-up eliminated this provision from the bill. See Table A-5 for a 50-state survey of limits on attorneys' contingency fees. See Table A-6 for a 50-state survey on general statute of limitation provisions for both medical malpractice and product liability actions, as some tort reform proposals' provisions would affect the statute of limitations for both types of actions. Appendix. Fifty-State Surveys

 Table A-1 sets forth the definition of a medical malpractice action in the 50 states.
Medical malpractice liability is governed by state law, but Congress has the power, under the Commerce Clause of the U.S. Constitution (Art. I, § 8, cl. 3), to enact tort reform laws that would affect actions for medical malpractice liability brought under state law. In the 112th Congress, H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act was introduced by Representative Phil Gingrey on January 24, 2011, and was marked up on February 9 and 16, 2011, by the House Committee on the Judiciary. This bill would preempt state law with respect to certain aspects of medical malpractice lawsuits. Past Congresses have considered similar measures.
This report does not examine the effects of medical malpractice litigation or medical malpractice liability reform on the health care system or on the cost of liability insurance premiums; rather, it explains specific tort reform proposals that are commonly included in medical malpractice liability reform bills, and discusses the individual arguments in favor of and against such proposals from a legal perspective. These proposals include imposing caps on noneconomic damages and punitive damages; permitting defendants to be held liable for no more than their share of responsibility for a plaintiff's injuries; requiring that damage awards be reduced by amounts plaintiffs receive from collateral sources such as health insurance; limiting lawyers' contingent fees; creating a federal statute of limitations; and requiring that awards of future damages in some cases be paid periodically rather than in a lump sum. It also includes, where appropriate, a description of H.R. 5's provisions with respect to these categories.
An Appendix to this report includes five tables. The first table (Table A-1) is a 50-state survey of definitions of a medical malpractice action or to whom state medical malpractice statutes apply. The second table (Table A-2) is a 50-state survey of caps on noneconomic and punitive damages. The third table (Table A-3) is a 50-state survey of the burden of proof standards for punitive damages and whether a state requires a separate proceeding to determine such damages. The fourth table (Table A-4) is a 50-state survey of whether the doctrine of joint and several liability applies to malpractice actions in a state and whether periodic payment of damages is to be considered in an award for a medical malpractice action. The fifth table (Table A-5) is a 50-state survey of limits on attorneys' contingency fees. The sixth table (Table A-6) is a 50-state survey of statute of limitation provisions for both medical malpractice and product liability actions.