[Congressional Record Volume 140, Number 108 (Monday, August 8, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 8, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
          MEDICAL MALPRACTICE IN THE MITCHELL HEALTH CARE PLAN

  Mr. McCONNELL. Mr. President, we are all beginning to digest this 
enormous health care proposal put forward by the majority leader last 
week. Let me focus on one small aspect, a section that is unlikely to 
get much attention, except in local bar association meetings. And that 
section is the so-called reform of the medical malpractice system.
  It is, frankly, anything but, reform. It is a giant step backward in 
the effort to get some control over the litigation explosion underway 
in our Nation.
  Senator Mitchell's bill, with its nonreforms, will wipe any State 
laws that exist in this area, of the books.
  In other words, Mr. President, what the majority leader is doing in 
this bill is eliminating the ability of States to enact their own laws 
in the area of medical malpractice. The Federal Government will give a 
swift kick to innovation that is going on at the State level. And 
instead, Senator Mitchell's bill provides nothing in the way of real 
reform.
  The work of the legislatures and Governors of a number of States will 
be gone, if Senator Mitchell's bill becomes law. It is interesting to 
note that 21 States have some limits on damages for pain and suffering. 
Twenty-eight States have enacted some reform to the collateral source 
rule--prohibiting double payment for injuries. But Senator Mitchell's 
bill would, in one outrageous Federal power grab, repeal these laws.
  In last Thursdays Roll Call, Mort Kondrake wrote about this issue, 
citing the raw political power exerted by the trial lawyers. They 
contribute millions of dollars to democrat political campaigns, and the 
trial lawyers asked our colleagues to take such actions, as the 
majority leader has suggested.
  Mr. President, I ask unanimous consent that the Kondrake article be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             Latest Winners of Health Fight: Trial Lawyers

       Super-lobbyist Tommy Boggs scored a stunning victory for 
     his client, the Association of Trial Lawyers of America, on 
     Tuesday, but in moving to gut medical malpractice reform 
     nationwide, he may have overreached.
       Two of ATLA's most consistent Congressional allies, Senate 
     Majority Leader George Mitchell (D-Maine) and House Judiciary 
     Committee Chairman Jack Brooks (D-Texas) on Tuesday produced 
     nearly-identical health care bills potentially canceling out 
     state efforts, many quite extensive, to bring malpractice 
     claims under control.
       Within the sweeping national conflict over health reform, 
     malpractice reform is theater of combat where fighting is 
     especially fierce and expensive, although it's more obscure 
     than the contest over employer mandates and price controls.
       It pits the trial lawyers, who litigate on behalf of 
     victims of medical mistakes and collect huge contingency fees 
     when they win, against hospitals, doctors, and malpractice 
     insurance companies, which often pay huge sums when they lose 
     and also pay a lot to insure themselves against loss.
       Boggs, partner in the lobby-law firm of Patton Boggs & Blow 
     and son of former Reps, Hale and Lindy Boggs (D-LA), is the 
     lead lobbyist for the trial lawyers.
       A widely cited Harvard study found that the average US 
     doctor spends $15,000 per year in malpractice insurance, and 
     premiums for anesthesiology and obstetrics can go as high as 
     $200,000 per year.
       The rate at which doctors get sued has increased ten-fold 
     in the past three decades, and the average award in winning 
     lawsuits has increased from $40,000 to nearly $150,000 over 
     the past 20 years, taking inflation into account. Lawyers 
     customarily collect between 30 and 50 percent of a victim's 
     award, plus expenses.
       To avoid lawsuits, doctors often practice costly 
     ``defensive medicine,'' ordering tests and performing 
     procedures that wouldn't ordinarily be necessary. A recent 
     study by the consulting firm Lewin-VHI indicates that reforms 
     to control defense medicine could save $4 billion per year.
       Over the past several years, medical groups have won 
     various limits on malpractice suits in most states, including 
     specific dollar limits in 15 states on so-called ``non-
     economic damages,'' such as ``pain and suffering.''
       California, for instance, limits non-economic damages to 
     $250,000; Massachusetts and Maryland, $500,000; and Michigan, 
     $225,000.
       The medical providers and business lobby, the Health Care 
     Liability Alliance, has been urging that similar limits be 
     passed as part of national health legislation while ATLA has 
     been fighting against them.
       Now, Mitchell and Brooks are backing a provision for 
     federal law to preempt state limits, but Boggs claims the 
     measure will not wipe out state award caps unless Congress 
     passes its own cap. The HCLA counters that federal lawsuits 
     are certain to be filed against state limits, claiming that 
     Congress opposes caps.
       If ATLA prevails in Congress, it will be Boggs' second 
     major triumph this year.
       On June 29, the Senate fell three votes short of the 60 
     votes necessary to break a filibuster led by another ATLA 
     acolyte, Sen. Fritz Hollings (D-SC), against legislation 
     limiting awards and legal fees in product liability cases.
       In another demonstration of its power, ATLA intervened with 
     then-House Ways and Means Committee Chairman Dan Rostenkowski 
     to slice a $350,000 cap on non-economic damages out of the 
     health care bill approved by the panel's health subcommittee, 
     on the grounds that Brooks' committee had jurisdiction over 
     the topic.
       To gain influence, ATLA contributes lavishly to campaigns--
     $4.4 million during the 1992 election cycle and $235,000 so 
     far in this cycle, according to Federal Election Commission 
     filings. The health industry is spending just as lavishly, 
     but it has numerous objectives in the health care reform 
     fight, whereas ATLA's money is narrowly focused on product 
     liability and medical malpractice.
       Despite a close relationship between ATLA and President 
     Clinton, the Administration's health care bill contained some 
     measures sought by the health industry, including 33 percent 
     limits on lawyer's fees and a mandate that parties try 
     mediation before filing lawsuits.
       The Clinton bill contained no limits on damage awards, but 
     the Senate Finance Committee wrote in a $250,000 limit 
     indexed to inflation. Mitchell's bill, naturally, contains no 
     such limit and eliminates state caps. House Majority Leader 
     Richard Gephardt (D-Mo) has yet to decide whether to 
     incorporate Brooks' measure into his health care bill.
       Boggs' success on Tuesday with Mitchell and Brooks stunned 
     the health and business lobbies.
       ``This ought to be called the Mitchell-Brooks Trial 
     Lawyers' Full Employment Act,'' said Wayne Sinclair, senior 
     vice president of the MMI Companies, a malpractice insurance 
     firm. ``It amazes me that the trial lawyers are not only 
     trying to block reform, but they've gotten greedy.''
       With any luck, overreaching will rebound against the 
     lawyers. In the House, Rep. Vic Fazio (D-Calif) is working on 
     Gephardt to keep Brooks' provisions out of the House 
     leadership bill and safeguard his state's reforms. In the 
     Senate, numerous amendments to Mitchell's bill will be 
     proposed.
       Mitchell's willingness to compromise on employer mandates 
     improves the chances that some health care legislation will 
     pass this year, but it would be a shame if it contained a 
     windfall for lawyers.

  Mr. McCONNELL. Mr. President, according the Rand Corp., only 43 cents 
of every dollar spent in the malpractice system goes to the injured 
patient. According to GAO, it takes an average of 25 months to resolve 
a malpractice claim, and it can take up to 11 years. Doctor's groups 
report that 1 of every 8 physicians licensed for obstetrics no longer 
practices obstetrics.
  According to the Office of Technology Assessment, half a billion 
rural women have no obstetric services. These problems are directly 
related to the malpractice system. Senator Mitchell's bill will not 
solve any of these problems and, in fact, will make the problem 
significantly worse. I will be here on the floor as we debate this 
bill, and I will be prepared with a number of amendments to make real 
reforms to the Federal liability system.
  I yield the floor.

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