[Congressional Record Volume 140, Number 109 (Tuesday, August 9, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 9, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
               END DEFENSIVE MEDICINE--ENACT TORT REFORM

  The SPEAKER pro tempore (Mr. Poshard). Under a previous order of the 
House, the gentleman from California [Mr. Horn] is recognized for 5 
minutes.
  Mr. HORN. Mr. Speaker, one of the most basic of health care reforms 
that this House should enact is that of malpractice, or tort, reform. 
Unfortunately, as we wait to see the text of the Clinton-Gephardt bill, 
the chance to enact malpractice/tort reform--one supported by a 
majority of Americans--has run aground in the House Committee on the 
Judiciary.
  Although it will not cure all of our health care problems, 
malpractice reform will take us a long way toward eliminating much of 
the defensive and seemingly wasteful medicine that is practiced by 
doctors and other health professionals to avoid the risk of being sued 
for the mere application of professional judgment. When a doctor can 
tell by experience and an X-ray what is wrong with the patient, but 
also orders an MRI to be done at the cost of $1,000 in case he is taken 
to court by the patient, that is defensive medicine adding cost to the 
health care bill. This defensive medicine--at an annual cost of 
billions of dollars--is reflected in the average American's medical 
bill. Some estimate that 5 percent to 10 percent of our national health 
care bill is related to the practice of defensive medicine.
  Tort reform ensures that when a person is injured through negligent 
medical care, it is the patient who receives the lion's share of the 
compensation, not his or her lawyer.
  Malpractice reform is a proven success. For proof, one merely has to 
look at the California Medical Injury Compensation Act--known as MICRA. 
There is hardly a doctor in California who cannot tell how much his or 
her malpractice insurance premium has decreased since the 
implementation of MICRA. Statewide the premiums have fallen an average 
of 60 percent. That means the average patient's bills do not reflect 
those excess premiums.
  Before the 1975 enactment of MICRA, malpractice premium payments by 
California physicians totalled more than 25 percent of total premium 
payments nationwide. After MICRA, premium payments by California 
physicians have fallen to little more than 10 percent of the national 
total. That is a stunning decline.

  More important, caps on the percentage of a monetary award that can 
go to lawyers have meant more money for individuals in compensation for 
the harm they have actually suffered.
  Some have argued that this cap will mean lawyers will not take 
smaller cases. But MICRA has a sliding scale on attorney contingency 
fees--40 percent of the first $50,000 of the award, 33\1/3\ percent of 
the next $50,000, 25 percent of the next $500,000 and 15 percent of any 
amount over $600,000.
  Ironically, last week, the House Committee on the Judiciary took the 
unfortunate step of writing legislation that would roll back the proven 
California reform. Gone is any mandatory dispute resolution mechanism--
a means to settle these disputes without having to go to court.
  Under the committee's language, a lawyer's contingency fee would be 
capped at one-third of the total award--a provision that would directly 
undercut stricter caps which have been imposed in various States. The 
committee rejected on a near party-line vote the quite sensible 
proposal that damages for such items as pain and suffering or emotional 
distress be capped at $350,000. Frankly, even $350,000 is too high. 
Under the California MICRA law, non-economic damages are capped at 
$250,000. Again, these are caps on payments for emotional distress, 
they are not compensation for actual and real harm suffered.

  Finally, the committee rejected an amendment which sought to restrict 
punitive damages to cases where it was clear that the act committed by 
the defendant was based on clear and convincing evidence that the 
behavior was malicious, wanton, willful, or excessively reckless. What 
we have instead is no standard and a total preemption of all State 
malpractice law. If we allow the Committee on the Judiciary's decision 
to stand, the California success story will be erased. So will the 
success stories in other States.
  Supporters of the Clinton-Gephardt bill claim they want such lofty 
goals as change and reform. Of course they do right up to the point of 
addressing proposals that might offend the trial lawyers.
  Hillary Clinton, a lawyer by profession, has been touring the country 
decrying the influence of special interests on health care costs--every 
interest, that is, but that of her own profession.
  It is time to end the finger-pointing and get serious about health 
care reform. Any bill this House considers must include real 
malpractice reform that builds on the successful reform we have seen in 
the States.

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