[Congressional Record Volume 141, Number 69 (Thursday, April 27, 1995)]
[Senate]
[Pages S5751-S5784]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    COMMONSENSE PRODUCT LIABIL- ITY AND LEGAL REFORM ACT

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of H.R. 956, which the clerk will report.
  The bill clerk read as follows:

       A bill (H.R. 956) to establish legal standards and 
     procedures for product liability litigation, and for other 
     purposes.
       Pending:
       Gorton Amendment No. 596, in the nature of a substitute.

  The Senate resumed consideration of the bill.
  Mr. DODD. Mr. President, I rise this morning to express my strong 
support for the Product Liability Fairness Act, which is the pending 
legislative business before the Senate. Balanced reforms in this 
measure will help to promote fairness in the product liability system, 
help injured people get fair compensation for their injuries, allow 
businesses to get out of unjustified lawsuits, and improve safety 
conditions for working men and women in this country. With these 
reforms in place we will help alleviate the problems that undermine the 
present system.
  I want to commend at the outset the principal authors of this 
legislation, Senator Rockefeller of West Virginia and Senator Gorton of 
the State of Washington, for their hard work. They have worked 
tirelessly on this effort for a number of years. I am pleased to have 
joined them in that effort over 
[[Page S5752]] the last several years, and as an original cosponsor of 
this legislation.
  It is very clear that our current product liability system does not 
work. It is broken. I think we have a need and an obligation to try to 
fix it. Over the years a wide range of my constituents--consumers, 
manufacturers, small businesses, and working men and women--have 
identified the key problem. Far too often the results you obtain in a 
product liability case depend not on the merits of your claim but on 
your ability to afford good counsel.
  The statistics confirm what our constituents have been telling us. 
Under the present system, injured people must wait too long for 
compensation. Generally it takes an average of 2\1/2\ years for a claim 
to be resolved. A recent study by the GAO found that it can take up to 
5 years for a victim to receive their justified compensation. The 
delays in the present system can--and I think do--lead to inadequate 
compensation. Many seriously injured people who lack the resources to 
pay their medical bills and support their families while waiting a 
decision cannot afford to go 5 years without compensation. They have no 
choice but to settle, and to settle in many cases for inadequate 
amounts.
  While the present system is not serving the needs of our injured 
citizens well, it is also failing to meet the needs of American 
industry and business. Many of these industries are reluctant to 
introduce new products. When they look at their potential future 
liability, they see the different and distinct laws of 55 different 
States and territories staring back at them.
  This uncertainty is particularly difficult for smaller businesses who 
cannot afford the huge legal costs of the present system. In too many 
cases companies are forced to run up enormous legal bills only to be 
vindicated by the courts at a far later date. Who is well served by a 
system that stifles innovation? Who benefits when businesses are forced 
to defer investment on research and development? Who wins under that 
kind of system? Of course, no one does. If American businesses are 
unable to bring innovative products to the marketplace or are forced to 
take healthful products off the market then we all lose.
  Let me be specific. The search for an AIDS vaccine is a good example. 
The Commerce Committee of this body has heard testimony from Biogen, a 
company in the State of Massachusetts. It stopped work on an AIDS 
vaccine because of product liability fees.
  Even more disturbing is the way in which the current product 
liability system threatens entire industries. The contraceptive 
industry is one example. A 1990 report issued by the National Research 
Council and the Institute of Medicine concluded:

       Product liability litigation has contributed significantly 
     to the climate of disincentives for the development of 
     contraceptive products.

  As the American Medical Association points out, 25 years ago there 
were 13 American pharmaceutical companies researching potential 
products in the areas of contraception and fertility. Now there is only 
1--from 13 companies down to 1. Clearly, we need to change the system 
that has bred these kinds of results. I think we can and we must do 
better.
  Mr. President, with the passage of the Product Liability Fairness Act 
we will do better. This legislation would improve the product liability 
system for everyone. I want to emphasize that. This ought not to be a 
case of pitting attorneys against businesses and businesses against 
consumers. Everyone will benefit as a result of the improvements in 
this bill--the injured people who need fast and fair compensation, 
consumers who need quality products to choose from, and those American 
enterprises who are on the cutting edge of international competition, 
and the workers who depend on a strong economy to support their 
families.
  The moderate reforms in this measure would reduce the abuses in the 
current system without eliminating solid protections for those who are 
victimized by defective or dangerous products.
  I know my colleagues, Senators Rockefeller and Gorton, have already 
gone through the bill in great detail. So I will just highlight some of 
the key provisions.
  First, this measure would provide a far more uniform system of 
product liability. By adding more certainty to the system, the 
excessive costs in the present system would come down. This potential 
benefit motivated the National Governors Association to support this 
product liability reform measure. The association has said:

        The United States needs a single predictable set of 
     product liability rules. The adoption of a Federal uniform 
     product liability code would eliminate unnecessary costs and 
     delay the confusion in resolving product liability cases.

  Why is it important to quote the Governors here? Because some of the 
opponents of the bill have asked why we should be making changes at the 
Federal level when tort law is usually left to the States. That 
position ignores the fact that 70 percent of all products now move in 
interstate commerce. If the Governors of this country contend that a 
uniform Federal code in this area makes sense, then I think we ought to 
listen to what they are saying.
  The provision in the bill that encourages the use of alternative 
dispute resolution would also help reduce the excessive costs in the 
current system. Currently, too much money goes to transaction costs--
primarily attorneys' fees--and far too little goes to the legitimate 
victims that have been hurt.
  A 1993 survey of the Association of Manufacturing Technology found 
that every 100 claims filed against its members cost a total of $10.2 
million. Out of that total of $10.2 million, the legitimate victims 
receive only $2.3 million, with the rest of the money going for legal 
costs and transactional costs. Clearly, we need to implement a better 
system in which the money goes to those who need it--injured people.
  Consumers would also benefit from a statute of limitations provision 
that preserves the claim until 2 years after the consumer should have 
discovered the harm and the cause. In many cases today injured people 
are not sure what caused their injuries, and by the time they figure it 
out they have often lost their ability to sue. This legislation would 
provide relief for people in such situations and allow them adequate 
time to bring a lawsuit.
  This legislation also includes a number of provisions that are simply 
common sense. Under the bill defendants would have an absolute defense 
if the plaintiff, the one who is claiming the injury, was under the 
influence of intoxicating alcohol or illegal drugs and the condition 
was more than 50 percent responsible for that person's injuries.
  This provision, it seems to me, is nothing more than simple common 
sense. Why should a responsible company have to pay for the actions of 
someone who has, unfortunately, used alcohol or illegal substances? The 
company should not be held responsible, it seems to me, for that kind 
of an injury.
  The bill also institutes reforms to assist product sellers. They 
would only be liable for their own negligence or for failure to comply 
with an express warranty. Product sellers who are not at fault could 
get out of cases before running up huge legal bills.
  But as an added protection for injured people, this rule would not 
apply if the manufacturer could not be brought into court or if the 
claimant would be unable to enforce a judgment against the 
manufacturer. So we have provided a sense of balance here to try to see 
to it that people are not left without any recourse at all.
  Striking a balance is at the heart of this bill. Again I wish to 
commend my colleagues from Washington and from West Virginia. This is a 
balanced approach. We need to keep that in mind. There are a lot of 
amendments that will be offered, and some may seem appealing, but when 
you consider them keep in mind the totality of what has been done and 
the balance we have struck.
  This bill also contains an important section on biomaterials authored 
by my colleague from Connecticut, Senator Lieberman. That provision is 
designed to ensure that manufacturers of lifesaving and life-enhancing 
medical devices would have access to raw materials which are absolutely 
critical in this important industry. In recent years, the supply of raw 
materials has been threatened by litigation. Those are the facts. I 
commend my colleague from Connecticut for crafting a very promising 
solution to that problem.
  [[Page S5753]] The provisions that I have outlined here, Mr. 
President, demonstrate the balance that this legislation strikes 
between consumers and businesses. In the final analysis, the reforms in 
this bill should strengthen our product liability system for everyone.
  Of course, some of my colleagues are opposed to the measure--that is 
to be expected. They have raised some concerns, and certainly we look 
forward to the debates in the coming days. But I hope that we can avoid 
some of the inflammatory rhetoric that has characterized the debate on 
this issue in the past. This is a critically important issue involving 
the rights and responsibilities of injured people, of working people, 
of American industry, and we ought to treat it with the seriousness it 
deserves.
  My involvement with this issue goes back to the early 1980's, Mr. 
President. At that time I had serious concerns about some of the 
product liability proposals before Congress. Along with our colleague 
who retired from the Senate, Jack Danforth, of Missouri, and with the 
help of Judge Guido Calabresi, who was the dean of Yale Law School at 
the time, we put together several proposals to deal with product 
liability. We never got very far with them. In fact, I do not think we 
got our ideas out of the Commerce Committee. We have come a long way. 
We are getting closer and closer to passing much-needed legislation in 
this area.
  So I hope my colleagues will support, if necessary, cloture motions 
to allow us to at least have a chance to debate these issues and to 
determine whether or not the majority of this body wants to support 
this legislation.
  Let me also say--and my colleague from Washington certainly is aware 
of this particular concern--there is a lot of attention being paid to 
the punitive damages section. I have concerns about setting limits in 
this area. I would much prefer a system that has been tried in a few of 
our States where the jury determines whether punitive damages should be 
awarded, but then have the judges determine the amount. In determining 
the amount, the judge would follow a set of guidelines. This approach, 
which is the law in Kansas, addresses the concern about excessive or 
``runaway'' jury verdicts, while preserving the court's ability to 
punish certain egregious behavior.
  I will not take the time here this morning to go into a longer 
discussion of this issue because I want the thrust of my remarks to be 
focused on the totality of the bill.
  Again, Mr. President, I think this bill strikes an excellent balance. 
It is long overdue and represents a great step forward. Because we are 
so close to enacting these responsible reforms, I caution my colleagues 
against expanding the scope of the bill. For example, I know that some 
of my colleagues want to add medical malpractice provisions to the 
bill. I think that would be a mistake because it would jeopardize our 
ability to get this legislation enacted.
  Because of these concerns, I will not be offering as an amendment a 
securities litigation reform bill that I coauthored with my colleague 
from New Mexico, Pete Domenici. Clearly there is a temptation to deal 
with various areas of the law under the broader heading of legal 
reform. But we need to be sensitive to the particular problems in each 
area of the law and not lump matters together.
  So I will oppose efforts to expand the scope of this bill. If someone 
were to offer my bill on securities litigation reform as an amendment, 
I would oppose it. As many years as I have spent on it, it does not 
belong on this bill. So I hope my colleagues will keep this measure 
narrowly focused and help move it forward.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. What is the pending business? Are we operating under any 
unanimous-consent agreement?
  The PRESIDING OFFICER. There was an agreement to recognize the 
majority leader to offer an amendment.
  Mr. GORTON. I am authorized to report that the majority leader does 
not intend to take advantage of his right to offer an amendment at this 
point. As a consequence, the floor is open for amendments. I understand 
that the Senator from Kentucky intends to offer an amendment on medical 
malpractice, which is a very broad and significant amendment, and I 
hope can be concluded during the course of the day but nevertheless 
deserves considerable debate.
  I think I also should like to announce that, of course, it is really 
the turn of the opponents to this bill to offer an amendment, and if 
any of them wish to do so at the conclusion of this debate, I would 
appreciate their informing me or my colleague from West Virginia so 
that we can try to see to it that amendments are dealt with in a fair 
order.
  Before I yield the floor, Mr. President, I should like to say how 
much I admire the forceful and cogent and persuasive remarks of my 
friend from Connecticut, Senator Dodd.
  If I may make one or two more comments on a point of the Senator from 
Connecticut.
  Perhaps the most important of all of the points had to do with the 
balance that adheres in this bill. It is the result of the work of many 
years and work among Members of somewhat varying opinions other than 
the proposition that something is broken and needs to be fixed in 
connection with our product liability laws. So we have not gone all the 
way as far as we might in drafting this bill.
  We have attempted not to go from one extreme to the other extreme, 
but to come up with a solution that is fair to litigants, and that 
nonetheless will encourage the research and development of new 
products, marketing the new products, and the creation of economic 
opportunity in this country.
  I was particularly struck by the forceful way in which the Senator 
from Connecticut spoke of the balance, the way we reached these goals. 
I also understand his concern with the present provisions on punitive 
damages. We and others are working together to see whether or not we 
cannot come up with a superior solution to that which is included in 
the bill at the present time.
  But I do want to thank him for his most eloquent statement.
  Mr. DODD. I thank the Senator.
  Mr. McCONNELL addressed the Chair.
  The PRESIDING OFFICER (Mr. Shelby). The Senator from Kentucky.
  Mr. McCONNELL. I thank the Chair.
  Mr. President, I will shortly be offering an amendment, as the 
distinguished Senator from Washington indicated, with reference to the 
medical malpractice crisis that we have in our country. I will be 
offering this amendment on behalf of myself, Senator Lieberman, and 
Senator Kassebaum.
  This amendment, Mr. President, would expand the product liability 
bill to include health care liability cases. Medical malpractice reform 
is a perfect fit with the product liability reform effort underway here 
in the Senate. Overlap exists between these two issues, and if we do 
not reform them together, we could make the liability system even more 
complicated than it is now.
  Take, for example, Mr. President, a lawsuit over an adverse reaction 
to a drug. The injured patient is likely to sue the doctor who 
prescribed the drug, as well as the manufacturer and the seller.
  Now, Mr. President, if we only pass a narrow product liability bill, 
the drugmaker and seller would be covered under the product liability 
reform, but the case against the doctor would proceed under different 
rules. The result could be two separate cases involving the same set of 
facts.
  Is that an improvement in the legal system? I think hardly is that an 
improvement.
  So I say to my colleagues who support product liability reform, let 
us take a new look. Medical malpractice reform needs to accompany 
product liability reform. The problems within our health care liability 
system establish the need for the reforms contained within this 
amendment.
  First of all, Mr. President, the liability system impedes access to 
affordable health care for many in our country. The Office of 
Technology Assessment reports that half a million rural women do not 
have access to an obstetrician to deliver their babies. Now, I know 
that is an acute problem in rural areas of Kentucky. The American 
College of Obstetricians and Gynecologists state that more and more 
obstetricians are giving up the practice and restricting themselves 
only to gynecology, one of 
[[Page S5754]] every eight, according to their 1990 study.
  Let me share a few statistics with you. In Georgia, 75 counties lack 
maternity care; in Alabama, 2 counties; in Colorado, 19 counties have 
no maternity care whatsoever.
  During the health care debate last year, I received a letter from Dr. 
Leonard Lawrence, president of the National Medical Association, whose 
membership consists of African-American doctors. He wrote, Mr. 
President:

       Minority physicians are particularly impacted by the 
     current medical malpractice crisis. The combined costs of 
     liability insurance and the threat of malpractice suits have 
     caused many of our members to stop practicing in high-risk 
     areas. The effects of these trends are painfully evident in 
     minority communities. Minority physicians who have 
     traditionally made a commitment to serve Medicaid patients 
     are being forced to discontinue these services.

  Mr. President, I know many of my colleagues who are opposing the 
legal reform effort argue that reform will have an adverse effect on 
women and low-income minority individuals. Well, this information 
demonstrates that our failure to enact reform is what harms the women 
and minorities in the United States who need medical care.
  The second problem caused by the medical liability system is the 
decline in medical innovation. While doctors, as we know, practice 
defensive medicine by ordering unneeded tests and procedures, they are 
also less likely to take risks with treatment procedures and surgery 
because of the chances of getting sued. According to the General 
Accounting Office, a doctor has a 37-percent chance of being sued 
during the course of his or her practice.
  And there is the related issue of biomaterial access on which Senator 
Lieberman has been our most conspicuous leader. We need to ensure that 
raw material suppliers will sell their products to those who make 
important lifesaving devices.
  A third problem, Mr. President, concerns the erosion of the doctor-
patient relationship caused by defensive medicine. The dean of the 
University of Kentucky Medical School called my office this week to 
stress the importance of health care liability reform. He explained how 
hard it is to get young doctors to develop clinical skills when they 
can order a battery of expensive tests which will protect them in case 
of a lawsuit. Apparently, the chance of being sued has nothing to do 
with whether the doctor acted negligently. GAO reports that nearly 60 
percent of all claims are dismissed without a verdict or a settlement.
  Medical malpractice victims suffer from the same unpredictability of 
our civil justice system as other injured persons. Cases take too long 
to conclude, anywhere from 2 years to more than a decade. Of every 
dollar spent in the liability system overall in the United States, only 
43 cents goes to the injured party. A full 57 cents of every dollar 
goes to the system itself, the lawyer and the court costs.
  So, Mr. President, our goals here are basic and fundamental. First, 
to promote patient safety. Second, to compensate injured patients fully 
and fairly, but not to enrich the lawyers and the system; make health 
care more affordable and accessible; contain the costs of the liability 
system; strengthen the doctor-patient relationship; and, finally, 
encourage medical innovation.
  Before I explain what our amendment does, I want to be clear about 
what it does not do. First of all, there is no cap on pain and 
suffering in this amendment. Doctors' groups advocate a cap on 
noneconomic damages of $250,000. The House included such a provision in 
its legal reform bill last month, but we chose to omit a cap on pain 
and suffering for several reasons.
  First, there are circumstances where an individual suffers a serious 
injury but may have minimal or no economic losses. It seems harsh--not 
only seems harsh, it would be harsh--to tell such victims who have lost 
a limb or a sense of hearing, for example, that because they can go 
back to work, their damages are limited.
  For too long, the proponents of reform have been attacked as trying 
to deprive victims of their rightful compensation. So we felt in 
introducing our medical malpractice bill that we could offer many, many 
significant improvements to the system short of limiting pain and 
suffering. Pain and suffering are part of compensatory damages awarded 
in an effort to make the victim whole. We can reform the liability 
system to make it more certain and more fair without limiting an 
injured party's right to be made whole, and that is why we omitted such 
a provision. There may be amendments offered to put a cap on pain and 
suffering, but that is not something that this Senator could support.
  The second issue we omitted from our bill was the so-called FDA 
defense. That provision enables a company which obtained FDA approval 
for its device or a drug to be shielded from punitive damages. During 
last year's debate on a motion to invoke cloture on a motion to proceed 
to product liability, this issue was prominently discussed. Several 
Senators cited their opposition to this provision which was included in 
last year's product liability bill, and they cited that as their reason 
for opposing cloture.
  So we wanted to avoid that controversy connected with the full 
medical malpractice bill. The FDA amendment may or may not be offered 
at some course during this debate and, as with the cap on noneconomic 
damages, I welcome the debate. There is no reason not to discuss those 
issues and let them come to a vote if others would like to proceed with 
that. But it is important to remember that with regard to the concern 
drug manufacturers have, they still would benefit to some extent by the 
cap on punitive damages.
  As for our amendment, let me explain what is in it. I talked about 
what is not in it, now let me talk about what is in it.
  First of all, it is basically the same bill with some changes --no, 
it is basically the same bill that myself, Senator Lieberman and 
Senator Kassebaum introduced which was referred to the Labor Committee.
  She, along with other members of that committee, made significant 
changes in the bill from its introduction as S. 454. The amendment 
contains a uniform 2-year statute of limitations, which is the same 
statute of limitations contained in the product liability bill.
  The amendment addresses punitive damages in much the same way that 
they are handled in the product liability bill. Our amendment sets out 
the standard for awarding punitive damages, either intent to injure, 
understood the likelihood of injury and deliberately fail to avoid 
injury, or acted with conscious, flagrant disregard of a substantial 
and unjustifiable risk. Punitive damages may be handled in a separate 
proceeding, and the amendment sets out the eight factors that the court 
may consider in determining the amount. The amount of punitive damages 
is limited to three times the economic damages or a quarter of a 
million dollars, whichever is greater.
  The definition of ``economic damages'' specifically includes 
replacement services in the home, such as child care, transportation, 
food preparation and household care. We sought to be as comprehensive 
as possible to make clear that those individuals who do not work 
outside the home would be made whole for their losses. The fact that an 
injured individual does not earn a significant or, for that matter, any 
salary will not mean that there would be no economic losses.
  I am aware in the Labor Committee that Senator Dodd successfully 
offered an amendment to eliminate the cap on punitive damages. We have 
declined to incorporate that amendment into this floor amendment 
because without a cap on punitive damages, you do not have uniformity, 
you have no chance of getting predictability into the system. To do so 
would make the medical malpractice section inconsistent with the 
product liability provisions, and it is important to keep these two 
issues on very similar tracks.
  The amendment provides for periodic payment of future damage awards 
that exceed $100,000. Periodic payments must be made in accordance with 
the Uniform Periodic Payments of Judgments Act.
  The amendment abolishes joint liability for noneconomic damages, 
including punitive damages.
  Like the product liability proposal, the medical malpractice 
amendment provides that defendants are only responsible for their 
proportionate share of the harm caused. Like the proponents of the 
product liability bill, we 
[[Page S5755]] seek to put an end to lawsuits brought against a party 
because of its deep pocket. The amendment also reforms the collateral 
source rule to prevent double payment for the same injury. Amounts 
received by the individual from other sources, except those amounts 
paid by the individual or close family member, would be deducted from 
any damage award. The amount of the reduction would be determined in a 
pretrial proceeding, and evidence regarding the reduction could not be 
introduced at trial.
  Further, Mr. President, the amendment limits lawyers' contingency 
fees to one-third of the first $150,000 and 25 percent of any amount 
over $150,000. Clearly, that benefits the victim so that the victim 
gets more of the money in these cases.
  The amendment encourages States to adopt alternative dispute 
resolution and requires the Attorney General to develop guidelines for 
the States. The amendment sets forth a number of ADR options, including 
arbitration, mediation, early neutral evaluation, early offer, use of 
certificates of merit and no fault.
  The amendment also contains a separate subtitle on protecting the 
health and safety of patients. It provides that 50 percent of punitive 
damage awards go to the State for licensing and disciplining health 
care professionals, as well as for reducing malpractice-related costs 
for health care providers who volunteer in underserved areas.
  In addition, this subtitle requires the Agency for Health Care Policy 
and Research to establish a panel on patient quality and safety. Within 
2 years, this agency would take the work of the panel and establish 
guidelines for health care quality assurance, patient safety, and 
consumer information.
 In the interim, this agency would report to Congress on the work of 
the panel in these areas. Credit goes to Senator Jeffords for his hard 
work on this provision and the great improvement he made on the 
original bill.

  Finally, I want to mention the preemption provision. The opponents of 
legal reform have all of a sudden become advocates for States rights. 
They accuse the proponents of reform of hypocrisy for wanting to 
establish Federal standards in these areas. But I argue we are not the 
hypocrites. First of all, we are not changing the substantive law of 
negligence. Whether a doctor or hospital was negligent in the provision 
or administration of health care will still be a matter of State law. 
We are not creating any Federal cause of action where none exists. 
Neither product liability cases nor medical malpractice cases will wind 
up in Federal courts if they could not be there today.
  Second, Congress has the ample power to set national standards in 
this area. As in the product liability arena, health care is a national 
issue. We spent weeks debating this subject last year. Medical products 
and drugs are in the stream of interstate commerce. Health maintenance 
organizations and other health care providers are national--I repeat 
national--organizations operating throughout many States. And health 
insurance is generally sold on a nationwide basis. While a particular 
doctor-patient relationship may be local in nature, the delivery of 
health care is part of interstate commerce.
  Moreover, the Federal Government, through Medicare and Medicaid, 
funds a substantial part of the health care system. So the preemption 
provisions strikes a balance in creating a minimum national standard. 
Those States which have enacted, or which in the future enact 
additional restrictions on limitations, will supplement these national 
standards.
  I am aware that Senator Abraham, in the Labor Committee markup, 
successfully offered an amendment to allow States to opt out of 
national standards contained in this amendment. We have declined to 
include his amendment since we believe that preemption strikes the 
delicate balance needed in this area.
  There is much more to say about this amendment, and I am sure we will 
all have an opportunity to express our points of view during the course 
of the debate. The effort here is to improve and strengthen the bill so 
doctors and hospitals are treated similarly to medical device and drug 
manufacturers and sellers.
  Mr. President, this is indeed a national problem.


                 Amendment No. 603 to Amendment No. 596

(Purpose: To reform the health care liability system and improve health 
 care quality through the establishment of quality assurance programs)

  Mr. McCONNELL. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Kentucky [Mr. McConnell], for himself, Mr. 
     Lieberman, and Mrs. Kassebaum, proposes an amendment numbered 
     603 to amendment No. 596.

  Mr. McCONNELL. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. McCONNELL. I yield to the Senator from Wyoming [Mr. Thomas].


                 Amendment No. 604 to Amendment No. 603

  (Purpose: To provide for the consideration of health care liability 
             claims relating to certain obstetric services)

  Mr. THOMAS. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Wyoming [Mr. Thomas] proposes an amendment 
     numbered 604 to amendment No. 603.

  Mr. THOMAS. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  Mr. KENNEDY. I object.
  The PRESIDING OFFICER. Objection is heard. The clerk will read the 
amendment.
  The assistant legislative clerk read as follows:

       At the appropriate place in the amendment insert the 
     following new section:

     SEC.    . SPECIAL PROVISION FOR CERTAIN OBSTETRIC SERVICES.

       (a) In General.--In the case of a health care liability 
     claim relating to services provided during labor or the 
     delivery of a baby, if the health care professional or health 
     care provider against whom the claim is brought did not 
     previously treat the claimant for the pregnancy, the trier of 
     the fact may not find that such professional or provider 
     committed malpractice and may not assess damages against such 
     professional or provider unless the malpractice is proven by 
     clear and convincing evidence.
       (b) Applicability to Group Practices or Agreements Among 
     Providers.--For purposes of subsection (a), a health care 
     professional shall be considered to have previously treated 
     an individual for a pregnancy if the professional is a member 
     of a group practice in which any of whose members previously 
     treated the individual for the pregnancy or is providing 
     services to the individual during labor or the delivery of a 
     baby pursuant to an agreement with another professional.

  Mr. THOMAS. Mr. President, this is an amendment to the amendment of 
the Senator from Kentucky which addresses, overall, malpractice 
liability. This has to do with specific problems that arise in rural 
areas. It seems to me that rural area families across America deserve 
access to quality health care, and that is a problem we deal with from 
time to time. We need to search for solutions that reduce infant 
mortality rates, provide comprehensive prenatal care and yet allow for 
us to stand ready to serve in times of emergency. The rural obstetric 
care amendment is part of that solution.
  This amendment to rural obstetric care compliments the effort of the 
Senator from Kentucky. It addresses a specific problem in rural areas, 
recruiting and retaining obstetric providers. It helps women obtain 
quality prenatal care and assists rural communities in developing a 
reliable and successful health care delivery system.
  Some of these liability problems are unique to rural areas, such as 
limited access, of course, to patient medical care and the history of 
these patients through a period of time. Some areas in my State have 
little or no opportunities for prenatal care. The long distance of 
driving exists. I think, particularly, of one good-sized town of 
Rawlins, WY, in which, quite often, expecting mothers do the prenatal 
care in Rock Springs or in Laramie, WY, both of which are more than 100 
miles away; and, quite often, they need emergency care in Rawlins when 
the delivery time comes, and they find themselves going 
[[Page S5756]] for emergency care to a different physician. That is 
basically what we are really talking about here. Because of these 
distances and because of the unique rural problems, there is a dropout 
rate in delivery. So that providers delivering a baby often are 
providers that have not had an opportunity to see the mother prior to 
the treatment.
  Shortage of practitioners in obstetrics, to a large extent, is due to 
high insurance premiums. So this amendment simply raises the 
evidentiary standards to clear and convincing for health care services 
provided during labor or delivery of a baby. It only applies to health 
care professionals who did not previously treat the individual. It does 
not apply to providers who are on call or filling in for colleagues who 
are expected to have that information.
  So it is a rather simple amendment that provides for this movement to 
a higher level of evidentiary standard. There are, of course, a number 
of questions that could be asked that are somewhat mythical, I think. 
For instance, does this exempt certain groups of providers? It does 
not. The usual standard--the preponderance of evidence--remains in 
place for the doctor's own patient. Two is that it imposes an unusually 
high burden of proof. That is also not true. The clear and convincing 
standard is only slightly higher than the standard preponderance of the 
evidence and is significantly less than the standard of beyond a 
reasonable doubt. Some ask, does it eliminate the right to trial? It 
does not. Women are still permitted to sue the provider. And if 
negligence is found, the woman recovers full damages.
  Does it discriminate against women? Wrong. Women in rural areas would 
benefit. The intent of the amendment is to encourage health care 
professionals to continue providing obstetrics to women who may not 
have a physician or who are unable to get to their physician.
  Let me quote from Phyllis Greenberg, executive director of the 
Society for the Advancement of Women's Rural Health Research:

       Unintended adverse reactions in a few should not create a 
     threat of liability so great as to disadvantage the many who 
     benefit.

  Part of the benefit of the amendment would be to have an impact and 
to reduce malpractice premiums for obstetric providers in rural areas.
  Let me share a little bit of the problem that we have in some rural 
areas. Let me compare the premium rates in Wyoming for health care 
providers: $42,275 a year for OB/GYN specialists, compared to $9,800 
for pediatricians, $9,700 for internal medicine, $27,000 for general 
surgery, $17,000 for emergency physicians, $10,000 for general 
practitioners without OB/GYN services coverage. On the other hand, 
$26,000 for general practitioners who have OB/GYN.
  We can see clearly that practitioners in small towns that have 
relatively few opportunities for obstetric services simply do not do it 
unless it is an emergency and because of the cost.
  Further comparing Wyoming's $42,000 average malpractice premium for 
OB/GYN among the Rocky Mountain States, $22,000 in Idaho, $23,000 in 
Utah, $25,000 in Montana. So we have a problem and one that I think 
could be relatively easily mitigated here.
  It complements State obstetric liability laws; 25 States have 
statutes on the book recognizing the need to provide relief for 
obstetric providers, full-fledged immunities for drop-in delivery 
cases.
  We think, also, that it would help recruit and retain obstetric 
providers. In rural areas of 105 family practitioners, in Wyoming only 
27 provide obstetric services. For specialists, there are only 25 OB/
GYN providers in the State delivering babies. That is 52 physicians 
trained in obstetrics to cover 90,000 square miles.
  In the city of Sheridan there are only two providers. We used to have 
eight. One current provider watched his premium rise from $4,000 a year 
in 1978 to $35,000 a year in 1995.
  There is some background for this proposal, and this amendment was 
included in Jim Cooper's Managed Competition Act last year and the 
Rowland-Bilirakis Consensus Act of last year. Bob Michel's Affordable 
Health Care, a new act, included provisions of this kind. Majority 
leader Bob Dole's alternative health reform proposal includes this as 
well.
  So, Mr. President, this amendment to the bill of the Senator from 
Kentucky helps women and families across rural America obtain quality 
care. It helps rural communities fend off physician shortages, plaguing 
health care service delivery systems. It lowers health care costs, so 
consumers may pay the true cost of medical service instead of that cost 
inflated by malpractice premiums, and it complements overall 
malpractice reform.
  I yield the floor.
  Mr. KENNEDY. Would the Senator be good enough to yield briefly for a 
question or two on his amendment?
  Mr. THOMAS. Happy to.
  Mr. KENNEDY. I appreciate the chance to address the Senator on the 
amendment. I believe this was a matter that was given some 
consideration in the Human Resources Committee and eventually dropped 
in the final legislation that was passed out of the committee.
  Let me ask a question: For example, effectively this immunizes a 
doctor from any negligence suit, am I correct, if that doctor had not 
treated the patient prior to the time of delivery?
  Mr. THOMAS. No, I think the Senator is not correct. It simply raises 
the standard of evidence to the immediate level. It does not immunize 
if there is malpractice here, if liability is here. The difference and 
the purpose here is that this physician who delivers this baby has not 
been a physician that has been in the case for prenatal care and, 
therefore, is given, under this amendment, simply a clear and 
convincing standard as opposed to the preponderance of evidence. I 
think the Senator is not correct.
  Mr. KENNEDY. Could the Senator explain why we are having a different 
standard for the delivering of babies, why we have a different standard 
than the preponderance of the evidence?
  What is the Senator's reason, again, if the Senator would share it. 
This is somewhat different. I asked to have the amendment read because 
we had an amendment that was also focused upon obstetricians in the 
earlier draft of the malpractice legislation, and now we have another 
approach.
  I am just trying to understand. I think it is a different standard 
that would be for those doctors that would come on and treat an 
expectant mother. Can the Senator indicate to the Senate why we ought 
to have a different standard, why doctors ought to be held to a 
different standard at the time of the delivery of a baby from the 
preponderance of the evidence standard? What is the rationale? What is 
the justification of that?
  Mr. THOMAS. I think the justification is to provide delivery services 
for mothers in a community where there would not be services otherwise.
  For instance, a general practitioner who might normally deliver 
babies, because of the cost of malpractice insurance simply does not do 
that. So the expectant mother has, through the pregnancy, gone to 
Laramie, 150 miles away.
  But then comes an emergency. What we are doing is we are saying to 
this physician, although the physician does not do this as a normal 
thing, who is not able to pay this extraordinary amount of money, that 
we will provide some sort of a higher standard here because the 
physician is doing this not as a regular practice but as an emergency 
treatment process.
  It is not designed to have anyone with less competency. It is not 
designed to do that, but to encourage services where there are none.
  Mr. KENNEDY. Well, Senator, is this limited just to emergency 
provisions? I am still trying to get from the desk a copy of the 
amendment. I apologize to the Senator.
  Is this applied solely to an emergency situation as described in the 
response to my question?
  Mr. THOMAS. It applies only to people, to physicians and providers 
who have--they are either on call or they are part of a group. In that 
case we would have expected them to participate in the previous 
information regarding this patient.
  So this applies only when we go to this physician not having been 
involved with them previous to that.
  So, basically, yes, it does limit it only to that circumstance where 
this 
[[Page S5757]] physician has not been a party to the care prior to the 
delivery. That is our intention, Senator. If that is not the case, we 
would like to make it clear.
  Mr. KENNEDY. Well, I have the amendment. As the Senator knows well, 
effectively the Senator is saying to the mother and the child, 
effectively, that under this amendment it says, ``The trier of the fact 
may not find that such professional or provider committed malpractice 
and may not assess damages against such professional.'' You are 
immunizing, getting a different standard for those doctors.
  Does the Senator know, could the Senator indicate what the basis is 
for the amendment, where the hearings were, what the testimony has 
been, who we have heard from?
  Mr. THOMAS. Let me suggest a couple of things. First of all, the 
whole world is not in boxes. There are differences in terms of the 
availability of services, and we are seeking to deal with that.
  Second, it does not immunize, and I already have spoken to that. It 
simply raises that level of evidence. In fact, it says in the 
amendment, the Senator I am sure read that, it may not assess damages 
against such professional unless malpractice is proven by clear and 
convincing evidence. So it certainly does not immunize it.
  Let me say, further, as I said before, the Senator talked about the 
previous consideration, and it was part of Representative Cooper--we 
worked, as the Senator knows, and the Senator worked very hard last 
year in health care. These things were not out of the blue. It was in 
Mr. Cooper's bill and in the Rowland-Bilirakis bill.
 It was in Bob Dole's bill. It is not a new idea, and indeed has been 
discussed at great length.

  Mr. KENNEDY. The Senator's reference with regard to Boston--this 
applies to Boston as well as rural America. The fact is, you have, in 
this language, ``* * * the trier of the fact may not find that such 
professional or provider committed malpractice * * *.'' and then you 
have, ``* * * and may not assess damages * * *.''
  It says it ``* * * may not find that such professional or provider 
committed malpractice * * *'' That is what the amendment says. You can 
define it in whatever way you want, but that is what it says. Then it 
continues, ``* * * and may not assess damages against such professional 
or provider unless the malpractice is proven by clear and convincing 
evidence.'' This says ``* * * professional or provider committed 
malpractice * * *.''
  I just wonder why we are, with the amendment--we will have a chance 
to talk about this in greater detail--but why we are suggesting this 
particular amendment to the families of this country? I think whether a 
doctor is delivering--I can see a circumstance where he is immunizing, 
a particular doctor in a group practice, that they are going to send in 
the person who has not been working with the expectant mother because 
they want to have a lesser standard, or immunizing the doctor against 
malpractice.
  Are we trying to encourage the practice of obstetricians who may have 
lost their licenses or may be under some other kind of penalty? Are we 
immunizing them against practicing in terms of gross negligence or 
other kinds of negligence?
  This amendment is very clear, and it does apply to Boston. There is 
nothing in here about rural America. It is talking about all doctors: 
``* * * may not find that such professional or provider committed 
malpractice * * *'' It says ``* * * and may not assess damages * * *'' 
``* * * and may not assess * * *'' But it says ``* * * committed 
malpractice * * *.''
  I do not know--is the Senator familiar with where the greatest number 
of obstetricians are in this country at the present time? And what the 
rates for malpractice insurance are in those particular areas? You have 
the highest number of obstetricians in the country now out in Long 
Island. They have the highest rates of malpractice insurance. What is 
the point the Senator is talking about?
  Where is the testimony that this is going to produce greater services 
to people in either urban or rural areas?
  Mr. THOMAS. If the Senator will yield, it was my understanding you 
were going to ask questions and not----
  Mr. KENNEDY. I am asking the question where is the testimony, where 
is the hearing? I will be more precise.
  Mr. THOMAS. Yes, I already went through that. I told you we went 
through that last year in several places.
  If the Senator will support this, we would be happy to put in, in our 
second one here, that is only under the definition by the Public Health 
Service of rural areas.
  I am sure that is not the case. I am sure the Senator is not talking 
about my amendment. He and I have quite a different view of what we 
ought to do on malpractice, and I understand that.
  Mr. KENNEDY. I am just trying to find out what the amendment says. I 
am just reading the language in here----
  Mr. THOMAS. You are--you are misreading.
  Mr. KENNEDY. What it says on it, and asking for your explanation.
  Mr. THOMAS. We do not read it the same.
  Mr. KENNEDY. We have urban areas as well as rural areas. Public 
health does that. We have what is in the nature of underserved areas in 
urban areas. So I do not know that helps the Senator's position. I do 
not understand the Senator.
  The PRESIDING OFFICER. If the Senator from Massachusetts will 
suspend, the Senator from Wyoming has the floor.
  The Senator from Wyoming.
  Mr. THOMAS. I have tried to explain the answers. No. 1--let me go on 
just a little bit further.
  If the Senator would feel more comfortable, we will be happy to put 
in ``* * * as defined by the Public Health Service.'' So it would be, 
indeed, rural areas.
  Mr. KENNEDY. Senator, may I ask you, on this point that you just 
mentioned, are you suggesting that the Public Health Service only 
defines underserved areas as being rural areas?
  Mr. THOMAS. There is a definition, as the Senator well knows. I will 
cite it for him if he would like; section 330 (b)(3), or 130-27 of the 
Public Health Service Act, which defines underserved areas.
  Mr. KENNEDY. That also includes urban areas; does it not?
  Mr. THOMAS. I suspect so. It defines rural areas.
  Mr. KENNEDY. What is the Senator's point? Are you trying to say you 
would offer this if I would agree with it? The point I am making is I 
do not want poor practice in rural areas or urban areas.
  Mr. THOMAS. We are not talking about poor practice. We are talking 
about providing services where there is none, Senator.
  Furthermore, and then I conclude here, I think if the Senator wants 
to read it fairly, it says ``* * * may not find that such professional 
or provider committed malpractice and may not assess * * *.'' That is 
all one sentence. The Senator divided that.
  I understand you do not agree. You do not want malpractice insurance. 
I understand you do not want to change the legal system, Senator, but I 
do. These are the reasons, and I think very legitimate ones.
  Mr. President, I yield the floor.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I was going to ask of the Senator, 
finally, whether he was familiar with the fact the Senator from Kansas, 
Senator Kassebaum, dropped this very provision when these matters were 
brought to her attention in the course of the committee. They were 
dropped by the Senator. That, you know, happens to be the chairman of 
the Human Resources Committee, where many of these measures were read.
  I am asking and inquire why the Senator from Wyoming is convinced of 
it when the other members of that committee, who have prime 
jurisdiction, felt they ought to drop it?
  Mr. THOMAS. I will answer the question. I ask if the Senator always 
agrees with the Energy Committee if they drop something?
  Mr. KENNEDY. If you could explain why?
  Mr. THOMAS. I will. I have explained. I shall explain one more time.
  This comes from experience in our own State, Senator. We worked with 
this sometimes. We have difficulties in 
[[Page S5758]] recruiting physicians for these areas. We are seeking to 
find a way to provide services, in my case, for areas that are 
basically rural. I am here to defend my constituency, as you are. We 
have problems and they are unique problems, and I think this is an 
approach to do that. That is what I am seeking to do.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I cannot possibly understand the 
rationale. If I could just have the attention of my friend from 
Wyoming?
  I am prepared to see that the people in Wyoming make up their own 
judgment of malpractice. It is the Senator from Wyoming who is 
supporting the position that is going to preempt the States. The 
Senator's point is absolutely correct. Malpractice ought to be decided 
in the States. It ought to be decided by Wyoming what is in the 
interests of Wyoming. I am for it.
  I think Wyoming ought to make a judgment and decision in terms of the 
standards, whatever you want to do out there. That is the position of 
the Senator from Massachusetts. That is not what this bill is going to, 
and what the Senator is amending. They are basically preempting the 
States with one Federal standard. And that is different from the 
product liability.
  Product liability applies to products that are shipped interstate. 
This is the most sensitive relationship between a doctor and a patient. 
And why does Washington know best on this? The Senator has made my 
case. He ought to oppose the McConnell amendment for the very reasons 
that the conditions in Wyoming are different from Massachusetts.
  Mr. THOMAS. May I ask a question?
  Mr. KENNEDY. They are different from Boston. I will yield for a 
question, but I--I will be glad to yield for a question.
  Mr. THOMAS. Will you explain to me why you were the major proponent 
of Federal health care last year?
  Mr. KENNEDY. Of course. I will be glad to do that. There are very few 
people who have not heard me explain it.
  That is because I think decent quality health care for all Americans 
ought to be a right and not a privilege, Senator, for Members of the 
Congress of the United States like you.
  Mr. THOMAS. And the Federal Government ought to provide it?
  Mr. KENNEDY. Regular order, Mr. President. I have the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts has the floor.
  Mr. KENNEDY. I have a very good program. I pay $103 a month. The 
Senator from Wyoming pays about $300 a month.
  The difference with the Senator from Wyoming and Massachusetts is 
that I want the American people--in Massachusetts and Wyoming--to have 
the same thing that we have. I was also interested during the time of 
the Contract With America that we came in and said, ``Look. Whatever 
applies to Congress ought to apply to the American people.'' And 
everyone made their speeches and supported it. That is what we did.
  The other side of the coin is all of those Members that have the 
Contract With America have national health care. They have good health 
care. They are covered. The Senator from Wyoming is covered, like 40 
million other Americans are not covered, like the additional 1 million 
that became not covered in the last year of which 800,000 are children 
who are not covered. The difference with the Senator from Wyoming and 
the Senator from Massachusetts is I would like to make sure that the 
people of my State and the State of Wyoming have the same thing the 
Senator from Wyoming and I have. That is entirely different from what 
we are talking about in terms of the malpractice and the whole question 
of liability.
  Mr. THOMAS. And States rights.
  Mr. KENNEDY. States rights--the Senator is arguing my position on 
this issue. If I could, I have the floor. I would like to continue.
  The PRESIDING OFFICER (Mr. Kempthorne). The Senator from 
Massachusetts has the floor.
  Mr. KENNEDY. I would like to continue.
  The PRESIDING OFFICER. The Senator from Wyoming will suspend.
  Mr. KENNEDY. Under Senator McConnell's position, effectively you have 
preemption of the States under any of the State laws that apply 
anything that is more favorable than is differentiated from the 
Senator's legislation that advantages the consumers. You preempt State 
law; preempt them. This great body of leadership that says, ``Why don't 
we block grants that Washington does not know best, let us let the 
States do that'', that is what I am for on the malpractice. That is not 
what the McConnell bill does. And the Senator from Wyoming is offering 
an amendment on the McConnell bill that will set Federal standards, and 
preempt States rights. The McConnell bill preempts States rights.
  When we offered an amendment in the Human Resources Committee to 
effectively eliminate the preemption of States, it was defeated. I 
would welcome the opportunity to cosponsor a second-degree amendment 
that will preserve that on the McConnell amendment right now. I welcome 
the opportunity. If you want to preserve the States rights of what 
Wyoming knows and Wyoming knows best, Massachusetts knows and 
Massachusetts knows best, let us do a joint amendment right now to the 
McConnell amendment. I propose that.
  Mr. THOMAS. I am a little puzzled. May I ask a question?
  Mr. KENNEDY. Yes; certainly.
  Mr. THOMAS. First of all, the Senator from Massachussetts talked 
about the committee, that that which was proposed was dropped at the 
staff level. It is supported by the chairman. No. 2, the Senator has 
gone on. I watched. Here is the Senator's States rights business from 
last year. Do not tell me that you are for States rights. Look at this. 
Here is your health care package. Tell me there is States rights in 
that.
  Mr. KENNEDY. Would the Senator read the malpractice provisions in 
there where we do not preempt the States? Will the Senator at least be 
honest enough in terms of talking about this measure of malpractice, be 
honest enough to look and find out what our committee did with regard 
to States rights last year? That is all we are asking. I mean, let us 
not get away from the fundamental issue which is before the Congress on 
the McConnell proposal. That is whether we are going to have a Federal 
preemption of States on the issues of tort reform or whether we are 
going to let the States make that judgment and that decision. That is 
the essential part on the whole tort reform debate that we are having 
here in the U.S. Senate.
  The Senator has offered an amendment to that, not to preserve the 
State of Wyoming rights to make its own judgment. That was not in the 
Senator's amendment. You have gone to effectively immunize 
obstetricians from the malpractice and use a whole different standard 
of evidence at times of trial. That is an entirely different kind of 
issue. If the Senator wants to have Wyoming do what Wyoming wants on 
this malpractice, the Senator is welcome to have the opportunity to do 
so.
  Mr. President, unless there is anything further or any other inquiry 
that the Senator would want, I would like to address the underlying 
measure that we have before us.
  I see the Senator from Kentucky is now here. If I could just ask. As 
I understand it, this effectively, just for general clarification or 
point of information, this is basically the measure that was reported 
out of the Human Resources Committee without the Dodd amendment and 
without the Abraham amendment and as currently being amended by the 
Senator from Wyoming.
  Mr. McCONNELL. I say to my friend from Massachusetts, this amendment 
essentially is not what was reported out of the Labor Committee but 
rather the bill introduced earlier in the year by myself, Senator 
Lieberman and Senator Kassebaum.
  Mr. KENNEDY. The point probably does not make much difference to the 
Members. Here we have had the measure that was before the Human 
Resources Committee and had gone through a period of markup by the 
members of that committee and was reported out just a few days ago 
reflecting the members' judgment on the Human Resources Committee. Now 
we have a different measure here on the 
[[Page S5759]] floor of the Senate. The Senator is obviously entitled 
by the rules of the Senate to proceed in that way.
  There was a time when we Republicans and Democrats alike were trying 
to see if we could not work out some of the particular measures. Last 
year, when we dealt with the malpractice provisions, we ended up with a 
virtually unanimous vote on the malpractice provisions as part of the 
overall health care reform--a lot of diversity in this body, a lot of 
willingness to spend 2\1/2\ days in our Labor and Human Resources 
Committee considering this issue, and, at the end of it, we ended up 
with a unanimous vote. During the course of the consideration of what 
is basically the underlying McConnell amendment, I offered that as an 
alternative. The measure which had Republican and Democrat support. I 
will get into more description of it later in the course of this 
debate. And it was rejected. But, nonetheless, the Human Resources 
Committee reported out that measure. It was reported out. I thought at 
least if we are going to be debating the malpractice issue that we 
would have an opportunity to do so. But that is not the circumstance.
  Mr. President, let us take in the McConnell amendment the health care 
liability reform. Let us take the findings. Findings become more 
important particularly in the wake of what has happened in the last 
hours over in the Supreme Court on the whole issue of handguns. With 
these findings we are finding out that the Supreme Court is paying 
attention, that they have to relate to the follow-on provisions of the 
legislation. We are reminded about that. We have been reminded over a 
period of years in circuit courts and now certainly by the Supreme 
Court.
  Let us just begin by taking a look at the McConnell amendment on the 
findings. It says Congress finds on health care the following: Effect 
on health care access and costs. And from the title of this finding one 
would think that this bill is just what the doctor ordered. At the 
heart of health care crisis facing working families and health care 
access and cost is that we have 40 million citizens who have no health 
insurance to protect them against the high cost of medical care, and 
even those who have insurance cannot be confident that it will be there 
to protect them in the future if they become seriously ill. The cost of 
medical care is burgeoning the family budgets all over this country. 
But just read on.
  So we would expect that the rest of the measure will have some 
relevancy to the effect of health care access and cost. Those are the 
two elements in the health care crisis, the 40 million Americans who do 
not have any, increasing numbers that are losing in the employer-paid 
system, and the continued escalation in terms of the health care cost.
  It goes on. The next provision says the civil justice system of the 
United States is a costly and inefficient mechanism for resolving 
claims of health care liability and compensating injured patients. I 
certainly agree with that where we have only 10 percent of the victims 
of malpractice ever bringing a suit.
 I have here in my hand Business Week, March 27, shown to me by my good 
friend, Senator Hollings, from South Carolina, who was here just a few 
moments ago. It points out in this article of just a few weeks ago:

       One issue often neglected in the debate over malpractice 
     insurance is the system's efficiency in compensating injured 
     patients. The most exhaustive look at this issue is a recent 
     study of 31,000 hospital admissions in New York State by a 
     Harvard University team headed by Paul Weiler, Howard Hiatt, 
     and Joseph Newhouse. Its findings: Some 4 percent of 
     admissions involved treatment-caused injuries. One-fourth of 
     the injuries involved negligence. One-seventh resulted in 
     death.
       On average, only one malpractice claim was filed for every 
     7.5 percent of the patients suffering a negligent injury and 
     only half of these were ultimately paid. So, ``The legal 
     system is paying just 1 malpractice claim for every 15 torts 
     inflicted in hospitals.'' Those suffering nonnegligent 
     injuries--that is, caused by care not yet deemed 
     inappropriate--got nothing. Thus, the study concludes that 
     rather than a surplus, there is a litigation deficit because 
     so many injured people wind up uncompensated.

  You have the question now about whether the civil system is working 
in a way to try and deal efficiently with the malpractice which is 
taking place and how can it be done more effectively. We had an option 
and an alternative to do that, which was bipartisan, which has 
effectively been rejected and now we are back to the McConnell 
amendment that goes on and talks about, ``The civil justice system of 
the United States is a costly and inefficient mechanism for resolving 
claims of health care liability and compensating injured patients.''
  I would certainly agree with that. And all the material that we have 
looked at would certainly underscore that.
  Only 10 percent of the victims of malpractice bring a suit. Many 
victims who receive awards are undercompensated, due to the caps on 
damages imposed by almost half of the States. When cases go to trial, 
doctors win 60 percent of the cases in which, independent studies have 
concluded, they were, in fact, negligent.
  So I would support a bill that addresses these problems, although it 
certainly would not be a serious solution to the problems of cost and 
access. But this bill only tips the balance further in favor of the 
health providers and farther against the working men and women who are 
the victims of the practice.
  Let me read on.

       And the problems----

  This is from the measure that we have before us.

       And the problems associated with the current (malpractice) 
     system are having an adverse impact on availability of, and 
     access to, health care services and cost of health care in 
     the United States.

  Two million people lose their health insurance every month, and if 
you can find one who lost it because of the medical malpractice 
liability system, I would like to meet him.
  We will spend $1 trillion on health care this year. That number will 
double in the next 10 years. Medical malpractice premiums account for 
about 1 percent of that total and premiums are not even rising 
significantly.
  Even the AMA cites estimates that the costs of ``defensive medicine'' 
account for only 2.5 percent of health spending. Both the OTA and CBO 
concluded that tort reform like the kind provided in this bill would 
simply not produce any reduction in those figures. Is it not time we 
got serious about dealing with the health care costs instead of 
pretending that bills like this will do anything other than victimize 
patients to benefit providers?
  It is interesting that one of the first measures that we are dealing 
with on health care, with all of the problems that we are facing, with 
the number of Americans who are not covered, with the increasing number 
of children who are not covered--and those numbers are increasing--with 
all the problems that our seniors are having in terms of affording 
prescription drugs, all the needs that are there in terms of home 
delivery services, all the difficulties and challenges that we have in 
terms of the health care crisis, we are dealing with this issue of the 
malpractice reform in a way that is going to preempt the States from 
dealing with this issue, which they have had for some 200 years, and at 
a time where the case I think has yet to be made why this is necessary.
  And let me just mention very briefly, I hope those who are going to 
support it will explain to the Senate why we need it. First of all, the 
number of malpractice cases has been declining over the period of the 
last 5 years.
  Second, the malpractice premiums for the medical profession have been 
declining over the period of the last 5 years.
  Third, the awards for malpractice that have been made in the various 
courts have been declining for the last 5 years.
  And finally, the profits of the industry, the insurance industry in 
dealing with malpractice have been going up through the roof, going up 
through the roof. We are not where we had been a number of years ago 
when we saw many of these companies saying, look, we just cannot--we 
are going to get out of this whole area of malpractice. We just cannot 
afford it. We just cannot go forward with it. We just cannot deal with 
it.
  The fact is this malpractice insurance is enormously profitable to 
the insurance industry. And rather than leaving the insurance industry, 
it is highly competitive and more and more companies are going into 
this kind of 
[[Page S5760]] coverage. The publications of the insurance industry 
reflect that and the profits of the various companies sustain it.
  And so we have a situation where there is, Mr. President, an 
important need in terms of covering the American people. The best 
estimate is anywhere from 80,000 to 100,000 people die a year from 
negligence and malpractice--80,000 to 100,000 people die a year, where 
only a small fraction of negligent malpractice cases are even brought, 
and where review after review of even those that are brought, where 
there have been findings that there has been review of those cases by 
doctors and professional groups, suggests that those findings by and 
large have been fair and that any review of the total numbers of cases 
that have been brought over the period of the years would justify 
additional kinds of findings as well.
  Here is Business Insurance: ``Insurance Malpractice Coverage in 
Stable Condition.''

       Despite the rapid change in health care delivery, the price 
     of medical malpractice and professional liability coverage 
     for health care organizations remains stable and capacity is 
     plentiful. Most hospitals and health care systems will renew 
     their liability coverage as in 1994 in part because of a 
     decrease in claims severity and frequency for most health 
     care organizations.

  It goes on and talks about there is more capacity, there are more 
players than 3 years ago.

       It seems like every month a new insurer wants to underwrite 
     medical liability coverage for health care organizations.

  Business Insurance, the publication for the insurance industry, says 
this is an area to get in, the profits are there. The total numbers, 
the statistics show that the awards, the numbers of cases, the 
judgments are going down and that the principal problem that is out 
there is people who are subject to malpractice are not being 
compensated. And what are we doing here with the McConnell proposal?
  What are we doing here? We are effectively saying to Wyoming, to all 
50 States, that we know best on the issue of tort reform; that we are 
going to have a preemption, one-way preemption. If your State, for 
example, was to provide some additional kinds of protections in terms 
of consumers, we will preempt you.
  Now, in the Labor and Human Resource Committee, the Abraham amendment 
said: All right, we will preempt you, but if the State wants to get out 
from underneath the preemption, that will be accepted. And that was 
accepted by the committee.
  But not in the McConnell amendment; not in the McConnell amendment. 
It is a one-way preemption.
  I see other Members who want to speak to this issue, so at this time 
I will just conclude.
  It is difficult for me to understand, Mr. President, why we are 
taking an issue which is so personal, involving a doctor and a patient, 
in which the States have worked out their own accommodations, where the 
Congress is not being pleaded to by the States for Federal action, and 
while the industry itself is successful, experiencing record profits in 
this area--I will get into that later on in the discussion--why we are 
being compelled to say that we will have a one size fits all, 
effectively saying that we here on this issue, which is so personal 
between a doctor and a patient, so personal, that we are going to have 
to have a Federal solution. And that is what the McConnell amendment is 
doing.
  I find it just troublesome, as I mentioned earlier, where we have all 
the challenges that hard-working families are facing in this country, 
that workers are facing, wondering whether they are going to continue 
to have the coverage that they have today, where working families are 
worried about whether their parents are going to be covered, where 
working families read about the cuts in Medicare that are going to be 
coming down the road, where most of our seniors are paying $1 out of $4 
in terms of out-of-pocket expenses for additional health care needs. 
They are concerned about them. They are concerned about their children, 
whether their children are going to get decent quality health care.
  And we see, with the Carnegie Commission report and the other 
reports, the total number of children that are not being covered. With 
all the needs that are out there, here comes the U.S. Congress and 
Senate saying, ``On this one, we are going to look out for the industry 
and the AMA.'' That is what this is all about. That is what this is all 
about.
  Mr. President, basically, there should be adjustments, there should 
be changes made in the current system. We ought to be encouraging 
alternative dispute resolutions. We ought to give experimentation to 
the States to be able to do that.
  In our proposal last year, we even had limitations in terms of the 
contingency fees in a bifurcated way, in terms of the early payments 
and later kinds of payment. We dealt with collateral issues. We dealt 
with the experimentations that would be taking place in States so that 
they could develop practice guidelines and consider, if they used 
practice guidelines, whether we could create rebuttable presumptions.
  We talked about encouraging States to develop enterprise liability. 
We even supported creating no-fault liability so that States would 
create the funds and all that individuals would have to be able to do 
is show that need, not even negligence, to be able to recover. We were 
prepared to consider all of those measures.
  Those of us who are opposed--at least this Senator is opposed--to the 
McConnell amendment understand that we have to provide some changes and 
some alterations. We were prepared to do so and are prepared to do so. 
We made some changes even in this proposal that was initially put 
forward before our committee during the course of the deliberations. 
But we, at this time, do not have that measure before us.
  I see other Members who want to speak, and I will come back to 
address this issue at a later time.
  Mr. WELLSTONE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Mr. WELLSTONE. Mr. President, I have the floor. I wonder if I could 
just for a moment have a discussion with my colleague from Connecticut. 
I know he was here for a while, but I stayed on the floor. I do not 
want to push in front of him. Would my colleague mind if I went forward 
with my remarks right now?
  Mr. LIEBERMAN. Mr. President, I appreciate the courtesy of my friend 
from Minnesota. It may sound a little strange, but if he is prepared to 
speak at length, I would be happy to allow him to go forward.
  Mr. WELLSTONE. I say to my colleague, I am prepared to speak at 
length.
  Mr. LIEBERMAN. I had guessed that.
  Mr. WELLSTONE. Would that be all right?
  Mr. LIEBERMAN. Yes. I appreciate the Senator's kindness.
  Mr. WELLSTONE. Mr. President, I was at a gathering yesterday with 
citizens from all over the country. Their personal stories are often 
not a part of this debate, but they should be. Many of them have been 
injured, many of them have been hurt, some of them have lost loved 
ones. God forbid that any of this should happen to any of us or our 
families or our loved ones.
  Mr. President, the question that they were asking was: What is the 
purpose of the underlying bill, this ``Product Liability Fairness 
Act?'' I see nothing fair in it, and I will talk about that, or this 
amendment, the McConnell amendment, or the second-degree amendment to 
the McConnell amendment.
  What is this rush to somehow protect whom from claimants? Why the 
effort to tip the scales of justice against people who have been hurt, 
all too often in behalf of people who have been negligent, all too 
often on behalf of large corporations, insurance companies, you name 
it?
  Mr. President, I will get to the specifics of this medical 
malpractice amendment, and I will talk about the underlying bill as 
well, but I would like to start out on a more personal note as a 
Senator of Minnesota.
  Mr. President, let me first of all make it clear that in some 
editorials it has been suggested that this debate is really a debate 
between the trial lawyers of the United States of America and the rest 
of the country. That is just simply not true. There are many citizens, 
the consumers of this Nation, 
[[Page S5761]] that I think also need to be and have been present in 
this debate.
  So with a little bit of hesitation, I will use some pictures--but 
this comes with the permission of Minnesotans, of the families 
affected--because I think the faces of people that are affected by 
this, I think the people themselves, their voice ought to reach into 
this Chamber now.
  Kristy Marie Brecount was a happy--``was,'' past tense--active 7-
year-old girl from Edina when she went to the hospital to get her 
tonsils removed, as many children her age do.
  I do not know where the hospital was and in no way am I suggesting 
that this was in Edina. That is not the point.
  It was an elective procedure. The hospital personnel improperly 
hooked up the machine that was to provide the anesthesia for the 
operation. They attached the hoses backward. As a result, she received 
10 times the amount of anesthesia she was supposed to get, leading to a 
fatal cardiac arrest.
  This is a picture of Kristy.
  Here are the questions I would ask about this amendment, as I 
understand it. And I have not even had a chance to look at all of it, 
because it just came up on the floor.
  If it was clear that the hospital personnel had acted intentionally 
or ``with conscious, flagrant disregard'' for Kristy's safety, do you 
think, I ask my colleagues, that $250,000 is enough to punish and deter 
the hospital personnel from doing it again?
  Is $250,000 too much? And if my colleagues say it all depends on the 
history or the size of the hospital, then I would say that is precisely 
the point. It is a case-by-case situation. So why at the Federal level 
preempt this? Why take away from aggrieved citizens their right to seek 
redress for grievances within our court system?
  Is $250,000 too much? And if you do not know the statistics, this 
does happen to citizens--80,000 deaths a year from negligence, 300,000 
citizens hurt or injured a year. And we put caps on punitive damages?
  Gina Barbaro. Gina had just turned 6 when she got sick with flu-like 
symptoms. Her mother took her to a chiropractor. Her symptoms at the 
time were headaches, fever, vomiting, shakes, delirium, rash on her 
foot, ear, knees, and down her legs. The chiropractor prescribed herbs 
and oils and sent Gina home.
  By the way, we are not talking about the vast majority of doctors, 
chiropractors, you name it. We are talking about a few, sometimes, if 
you will, rotten apples in the basket.
  The chiropractor prescribed herbs and oils and sent Gina home. The 
next day she was back with worsened conditions and severe redness to 
her right eye. The chiropractor, believing the problem stemmed from 
Gina's pancreas, sent her home again. Her temperature reached 105, and 
the color of the iris of her right eye changed.
  Upon the third trip to the chiropractor, the chiropractor finally 
suggested that Gina go to the hospital for evaluation. The hospital 
staff determined Gina had a virulent strep infection that resulted in 
her losing the sight in her right eye. She also had numerous other 
complications. The eye had to be removed. A year and a half later, Gina 
continues to have continuing care, including cardiology, ophthalmology, 
infectious disease, and pediatrics.
  I just showed you a picture of Gina, and now I ask the following 
questions: Assuming that the jury finds that the chiropractor's 
negligence in failing to send Gina to a hospital sooner was 70 percent 
responsible for her damages, and the negligence of the practice for 
which the chiropractor worked was 30 percent responsible because they 
hired the chiropractor in the first place. The jury awards Gina 
$100,000 in noneconomic damages for her pain and suffering and 
disability and fear.
  If the chiropractor is unable to pay the full amount of his fair 
share, who should be stuck with the loss, Gina or the practice? And by 
the way, Mr. President, to go to one of the points that my colleague 
from Massachusetts, Senator Kennedy, made, in the Labor and Human 
Resources Committee, one of the more important things we did to the 
medical malpractice amendment yesterday is that we had an opt-out 
provision.
  In my State of Minnesota, we have struggled with this question of 
joint liability. I am not a lawyer, but I can see it is a really 
difficult question. The question: If you are not really responsible for 
the whole extent of the damage, and maybe only a small percentage 
because another party says they are insolvent, bankrupt or whatever, 
should you have to assume the whole cost? So we tried to work out 
different kinds of formulas at the State level.
  This amendment preempts States from doing that. I am, in part, here 
to fight for my State. And by the way, Mr. President, it makes no sense 
whatsoever to me that if you are going to have a Federal preemption--
and you should not--there are two issues: Why do we have a Federal 
preemption which, as I understand this amendment, goes in only one 
direction: States are preempted if they want to have stronger consumer 
protection than the norm we set here, but not preempted from having 
less consumer protection. Talk about a stacked deck. In any case, why 
would we not, as we did yesterday in committee, at least allow States 
to opt out of this?
  This amendment professes to reform medical malpractice, but it is 
less about cutting back on the incidence of medical malpractice --how 
do we prevent this in the first place--than it is about making it 
harder for people to avoid becoming the victims of medical malpractice, 
making it more difficult for those victims to receive compensation for 
their injuries and making it easier for those who commit medical 
malpractice to get away with it.
  This amendment is an attack on consumers. First and foremost--and I 
use the word ``attack'' carefully--it is an attack on the elderly and 
on families with children and on working Americans. Why else would this 
bill devalue compensation for low- and middle-income victims? That is 
right, this amendment says that when a person is hurt, it is their 
economic damages, usually including lost wages, that they have the best 
chance of getting back. But for noneconomic damages, it will be harder 
to get compensated. In other words, if your damages tend to be more in 
pain and suffering and less in lost wages, since you make less money, 
you are more likely to walk away with a smaller percentage of your 
compensation, and that is wrong if you have lost a child, or if you are 
infertile because of malpractice of a doctor, maybe an obstetrician. If 
you have been maimed, then I do not know why your loss is any less 
important than someone else's loss. Since when did we start making a 
calculation about justice based upon the income and wealth of families?
  Mr. President, with regard to the second-degree amendment, lessening 
standards so that an obstetrician does not have to live up to the same 
standards by way of consumer protection, thus making it more possible 
to be able to deliver that kind of care in rural areas, makes no sense 
whatsoever.
  I am from the State of Minnesota and greater Minnesota, rural 
Minnesota is an important part of our State. Minnesotans want to make 
sure that we have more doctors, nurses, advanced nurse practitioners in 
our communities delivering health care. But I do not believe the 
citizens in my State believe that the way to get that done is by moving 
away from consumer protection by lessening standards. People want 
affordable care, they want dignified care, they want humane care, and 
they want high-quality care.
  Mr. President, yesterday in committee I offered an amendment, and I 
certainly will offer this amendment on the floor of the Senate. I did 
not believe we were actually going to have a medical malpractice 
amendment on the floor. I offered an amendment in markup that would 
have opened up the National Practitioner Data Bank--and for those who 
are now listening to this debate, I need to spell out what that is--
granting consumers access to the same kind of information about their 
doctors that hospitals and HMO's currently receive.
  In other words, if we are really interested in the problem of medical 
malpractice and we want to prevent it, that is really what people want 
to see happen, that is what doctors and chiropractors and nurses and 
nurse practitioners want to see happen, then one would think that 
consumers could have the same information, access to the same kind of 
information about their doctors that hospitals and HMO's currently 
receive.
 Eighty thousand people 
[[Page S5762]] die every year due to medical negligence, and consumers 
should have the right to know whether or not there has been a finding 
against the doctor because of malpractice or if a doctor has 
essentially been barred from practicing at a hospital or, for that 
matter, within a State. By the way, sometimes--and I could give 
examples--doctors move to other States, change their names, and then 
harm other citizens in the country, and those citizens have no way of 
finding out, unless they want to go all around the States in 50 
different court systems. But that amendment was defeated yesterday. 
Once again, consumers lose and a variety of different powerful trade 
associations and their Washington lobbyists win. I will most 
definitely, Mr. President, offer that amendment on the floor.
  Mr. President, the plaintiffs ask the question: Why the legislation? 
Why the legislation that essentially tips the scales of justice against 
us? Victims of malpractice do not know they are victims until they are 
injured. Perpetrators of malpractice know who they are. They have been 
sued before, and if they do it again, they can expect to be sued again. 
So they can walk the Halls of Congress in droves, but the victims--the 
people who will be affected by this amendment--do not even know who 
they are yet. We can only talk about them in the abstract, though I 
have tried to give specific examples.
  Mr. President, I recognize that many of my colleagues feel they have 
to vote for something they can call tort reform, so they can go home 
and tell their constituents that they have struck a blow against the 
lawyers. But I urge them to see past this temptation to the real truth. 
They are striking a blow, if they support this second-degree or its 
underlying amendment, against their own constituents, against regular 
people who, God forbid, one day will be the victim of a bad doctor, bad 
drug, or defective product. If we pass these amendments, we will be 
hurting people, and that is not something that any of us were elected 
to do.
  Mr. President, I have to say, on the health care front--and I have a 
few comments on this overall product liability bill as well--that it is 
amazing to me that we go through a health care debate for the better 
part of the last Congress and we have the General Accounting Office and 
the Congressional Budget Office and they talk about the trillion-dollar 
industry and how we can contain costs. As I remember the numbers, the 
cost of purchasing medical malpractice insurance, combined with 
defensive medicine--in other words, doctors say it is not just the cost 
of purchasing insurance--the total amounts to about 2 percent of the 
overall costs in the health care industry. Again, I, too, quote from a 
Business Week piece:

       On an average, only one malpractice claim was filed for 
     every 7.5 patients who suffered a negligent injury, and only 
     half of these were ultimately paid. So, ``the legal system is 
     paying just one malpractice claim for every 15 torts 
     inflicted in hospitals.'' Those suffering nonnegligent 
     injuries--that is, caused by care not yet deemed 
     inappropriate--got nothing. Thus, the study concludes that 
     rather than a surplus, there is a litigation deficit because 
     so many injured people wind up uncompensated. So many injured 
     people wind up uncompensated--overall, a very small 
     percentage.

  But let me shout this from the mountaintop that is the floor of the 
U.S. Senate: When the insurance industry moves into this debate and 
they want to get their way, they do quite well, apparently, given this 
kind of amendment. Last session we learned that the way you can most 
effectively contain health care costs would be to put some limit on 
what insurance companies charge. But nobody talks about that. That 
proposal is off of the table.
  That is not what we want to do. We do not want to focus on containing 
health care costs in some kind of fair, rational way. We do not want to 
focus on how to cover children and women expecting children. We do not 
want to focus on how we can move forward on home-based long-term care 
so that elderly people, people with disabilities, can live at home in 
as near to normal circumstances as possible and with dignity. We do not 
want to talk about situations where young people, because they have 
diabetes or because they have had a bout with cancer, find they are no 
longer covered by an insurance company, or their rates are so high they 
cannot afford to purchase that insurance.
  None of that is being done. We do not want to talk about the 40 
million Americans that are uninsured. We do not want to talk about all 
of the American citizens in this country who are underinsured. We do 
not want to apply the standards we live by, where we have good coverage 
and make sure the citizens we represent get the same coverage.
  No. Instead, we have an amendment here that is stacked in favor of 
large companies and against consumers, against regular people, against 
people who are injured, against people whose loved ones, in fact, in 
some cases have died as a result of medical malpractice; there is no 
way people can have information and knowledge about those doctors who 
have been found guilty of this kind of practice. No, we do not do that, 
nor do we take any effort to prevent it.
  We do not do anything to protect the consumers. We move away from 
those standards and we have these caps on punitive damages; we say that 
when a child passes away, that is what she is worth. Not to mention the 
fact--and I hate to say this on the floor of the Senate because I 
admire the vast majority of the medical profession and, for that 
matter, the health care industry in this country--but, by golly, one of 
the ways you stop some of this practice by those who really have done 
irreparable harm to citizens, whether they be a doctor or a hospital or 
corporation, you name it, is you make sure that they know if there is a 
repeat of this, or they do it again, they will pay dearly.
  Mr. President, yesterday I took part in an event that I only wish 
could have been witnessed by every one of my colleagues in the Senate. 
Had they seen it, I cannot believe that we would be here today on the 
floor of the Senate considering this underlying product liability bill, 
much less these amendments.
  The event was a meeting of people who had been harmed by defective 
products and negligent doctors. All of these people have been 
claimants--the very people that this legislation is designed to protect 
against, the very people that these amendments are designed to protect 
against. They have all been through the legal process, and without its 
protections, they would not have gotten what compensation they did 
receive.
  Do not let me hear people frame this debate as if it is a debate 
between everybody in the United States of America versus the trial 
lawyers. Not true. Having been through the process and seen how 
difficult it is to even get compensation today for their injuries and 
punish those who hurt them, these people yesterday--and they are here 
today as well--have an angry question for supporters of this so-called 
Product Liability Fairness Act: Why are we doing this? Why are we 
trying to make it harder for citizens who have been injured by products 
or malpractice, or citizens who have sometimes even been killed because 
of this, to seek redress of grievances in our court system?
  These citizens I met with yesterday are not the ones with the money 
and sophistication. Rather, they are the ones that are taken advantage 
of. They are the ones that are hurt, the ones that wrongdoers try to 
force into unacceptable settlements. They were here yesterday bearing 
witness to the damage that could be wrought by manufacturers of 
defective products and negligent doctors.
  They represent the downside of supporting this amendment. They are a 
reminder of why we have a civil justice system that has been called the 
great equalizer.
  Why through this amendment and why through this underlying bill are 
we trying to move away from a court system that has been a great 
equalizer? It is especially so for citizens who have been hurt, for 
citizens who sometimes have died as a result of defective products or 
medical negligence.
  Mr. President, in this underlying bill there are three basic 
provisions that have people up in arms. I agree with them 100 percent. 
Limiting punitive damages--which is part of this amendment as well--
would have allowed corporations that hurt them to avoid punishment. It 
would have allowed industry to work them into what is called the death 
calculus. For those who were listening, that is the calculation by 
which a company can decide whether it 
[[Page S5763]] is economically worth it to keep marketing a product 
that harms consumers. It is where a company can ensure that the bottom 
line is the only line.
  The cap on punitive damages in this bill also works to discriminate 
against lower- and middle-income plaintiffs. People--as I said before--
like the elderly, children, and the vast majority of working Americans.
  Under this bill, a manufacturers' egregious behavior will receive a 
lesser punishment if that behavior is against a person who makes less 
money and therefore has lower economic damages. Same with this 
amendment on medical malpractice. That is for exactly the same 
behavior, exactly the same harm and exactly the same defendant. This is 
an absurd result and it is an indefensible one.
  Mr. President, let me take an example. Jack, a data entry clerk, is 
severely injured by the explosion of a defective diesel generator made 
by the Acme Generator Co., leaving him in a wheelchair for the rest of 
his life. His hospital bill is $40,000, but he misses out on 1 year of 
work, which amounts to $30,000 in lost wages. So his total economic 
damages are $70,000. The jury determines that Acme's behavior was 
egregious enough to merit $500,000 in punitive damages. But this bill 
operates to cap these damages at $250,000.
  On the other hand, Bob, who sells commercial real estate, receives 
the identical injury when he uses one of Acme's generators. His 
hospital bill also amounts to $40,000 and he, too, is confined to a 
wheelchair for the rest of his life. When he misses a year of work it 
costs him $200,000. When the jury tries to punish Acme with $500,000 in 
punitive damages in his case, the punishment sticks.
  This raises a good question: Why is it less punishable to hurt Jack? 
There is another good question. Was $250,000 enough to properly punish 
Acme?
  I say to my colleagues again, it also applied to the amendment on 
medical malpractice where there is a cap set and it applies again. If a 
person does not know, if a person has followed these two examples and 
the answer is they do not know because a person needs more details, 
then that person has no business voting to support this one-size-fits-
all underlying legislation or this one-size-fits-all amendment.
  If the State of Minnesota and the State of Illinois have their own 
models and have attempted to deal with some of these tough problems so 
that we avoid some of the excessive litigation, so that we can figure 
out, I think, a really tough issue with joint liability, then we should 
let them do so.
  We certainly should not have an amendment or a bill that represents a 
Federal preemption against State standards only if those standards 
protect consumers or are stronger on consumer protection. Lower 
consumer protection is fine. This is the inevitability of a stacked 
deck.
  Mr. President, let me put a face on these questions. I want to make 
it clear I have thought long and hard about this. I feel so strongly 
that this debate has not dealt with people that I have sought 
permission for this, and I would not do it otherwise. Let me put a face 
on this.
  Think of LeeAnn Gryc, from my State of Minnesota, who was 4 years old 
when the pajamas she was wearing ignited, leaving her with second- and 
third-degree burns over 20 percent of her body.
  An official with the company that made the pajamas had written a memo 
14 years earlier stating that because the material they used was so 
flammable, the company was ``sitting on a powder keg.'' When LeeAnn 
sued for damages, the jury determined that her economic damages were 
$8,500, and also awarded $1 million in punitive damages.
  This is a picture of LeeAnn, what happened to her. Let me ask, was 
the jury wrong? Should the company have gotten away with only $250,000 
in punitive damages, as this bill would have required? Unless a person 
is comfortable answering the question yes, a person should not be 
supporting this underlying bill.
  Was this too great an award for this family? Unless a person is in 
favor of a cap and a person thinks more than $250,000 would be too much 
for this child and her family, a person should not support this bill.
  This legislation will have a very, very, real negative impact on 
consumers. It is unconscionable.
  Mr. President, when I saw the damage done by defective products to so 
many people as I did yesterday, I could not help but feel some of the 
pain they must have felt and still must be experiencing.
  What is it like to be blinded, confined to a wheelchair, unable to 
parent a child, lose a child, live with brain damage? These are real 
and palatable harms that many plaintiffs in product liability and 
medical malpractice actions have to deal with. We should not pass 
amendments or legislation that provide them with less protection or 
restrict their ability to seek legitimate and fair redress for 
grievances in compensation for what has happened to them and to prevent 
it from happening again to others.
  Historically, the primary goal of tort law was to compensate the 
victim, to make the victim whole. This reflects the view that it is 
better to have a wrongdoer who was partly responsible for the harm pay 
more than their fair share, if that is what is necessary to make sure 
that the victim is fully compensated.
  It is not an easy choice, Mr. President, to require somebody to pay 
more than their fair share. This is an issue that I really struggle 
with. But it is a choice that this legislation seems to be willing to 
let stand.
  If the harm is of a particular type, a type that can be shown in 
medical bills, lost wages, and other things that a person can get 
receipts for, that is one thing. But for noneconomic damages, like 
juries award for disfigurement, pain and suffering, and inability to 
bear children, the bill says that it is not important to make victims 
whole if that is the kind of damage they sustain. Two different 
standards between economic and noneconomic damages.
  I would be very interested in why some of my colleagues think that 
people who suffer that kind of harm should be relegated to second-class 
status.
  Mr. President, again, there are faces, there are real people who will 
be hurt by this legislation.
  Think of Nancy Winkleman from Minnesota who was in a car crash. I met 
her a few weeks ago. Because a defective car underride bar failed to 
operate properly, the hood of her car went under the back of a truck 
and the passenger compartment came into direct contact with the rear 
end of the larger vehicle. Without the benefit of her car's own bumper 
to protect her, she was severely injured, losing part of her tongue and 
virtually all of her lower jaw.
  Despite extensive reconstruction surgery, her face and her ability to 
speak will never be the same.
  Real people, real faces. I cannot imagine the pain that Nancy must 
have undergone, or the pain that she undergoes every day. If one of the 
responsible parties in her case was unable to pay its fair share, 
should she go uncompensated for some of that pain? Or should the other 
responsible parties have to make it up? Unless you are certain that it 
is more important to protect those other responsible parties than to 
compensate Nancy for her pain, you should not support this bill. If you 
do, you will be hurting people, real people.
  Finally, there is the statute of repose prohibiting suits to recover 
damages for harm caused by defective products that are over 20 years 
old. This is one of the most arbitrary and indefensible provisions of 
the bill. What possible justification is there for this? After all, if 
a product is defective and does not hurt anybody until it is over 20 
years old, is the harm of the victim any less? Is the responsibility of 
the manufacturer any less?
  Here is a face you can attach to these questions as you consider 
them. Think of Jimmy Hoscheit--with his permission--who was at work on 
his family farm when he was a boy. Jimmy, too is a Minnesotan. I met 
him a few weeks ago. He was using common farm machinery, consisting of 
a tractor, a mill, and a blower, all linked together with a power 
transfer system much like the drive train on a truck. The power of the 
tractor is transferred to the other equipment by way of a spinning 
shaft, a shaft covered by a freely spinning metal sleeve. The sleeve is 
on bearings so that if you were to grab the sleeve it 
[[Page S5764]] would stop moving while the shaft and side would 
continue to powerfully rotate at a very high speed.
  Apparently when Jimmy leaned over the shaft to pick up a shovel, his 
jacket touched the sleeve and got caught on it. However, instead of 
spinning free of the internal shaft, the sleeve was somehow bound to 
the shaft, became wrapped in Jimmy's jacket and tore Jimmy's arms off. 
His father found him flat on his back on the other side of the shaft.
  The manufacturer could have avoided all of this if it had just 
provided a simple and inexpensive chain to anchor the shaft to the 
tractor.
  Now I ask you: Should Jimmy be able to bring a suit against the 
manufacturer? What if the product was over 20 years old?
  A similar question can be asked about 6-year-old Katie Fritz, another 
Minnesotan whose family I was actually privileged to meet yesterday. 
Katie was killed in 1989 when a defective garage door opener failed to 
reverse direction, pinning her under the door and crushing the breath 
out of her.
  I met the Fritz family yesterday, her mother Patty and her sons. It 
is a really courageous family. And it is really hard for them to talk 
about it. Patty Fritz had tears in her eyes--who would not? I am a 
father and a grandfather. Mr. President, you are a father. But you know 
Patty and her family have the courage to take what has happened to them 
and be able to speak out in behalf of others.
  We all know how long some of these machines can last. If that garage 
door opener was over 20 years old, Katie's family could not have sued 
the manufacturer. There would not be any question of capping punitive 
damages or having joint liability for noneconomic damages they simply 
would not be allowed in the courthouse door.
  That is what this legislation does. Explain to me the justice in 
that? What is the overriding public policy interest that is so 
important that this bill should shut Katie's family out of court, or 
other families like Katie's family, out of court? If you are not clear 
about this, if you are not sure that there is such a public policy 
interest here, you should not support this legislation.
  This legislation and these amendments right now before us will hurt 
people, real people. To me, as I look at this legislation and I look at 
this amendment before us, this is not a close call. At a time when many 
in Congress are bent on cutting back on regulations that protect the 
health and safety of our citizens and on reducing public support for 
people if they get hurt and need help, the courts are the last resort. 
We cut back on the regulation, we cut back on the protection, we cut 
back on the ability of public agencies to protect people, and now we 
shut off the courts, the last resort. That is where regular people can 
try to deal with wealthy, sophisticated defendants on a relatively 
level playing field. And now what we are trying to do is change that 
and make it an unequal playing field. And even now it is extremely hard 
to get a reasonable settlement or award. Why are we considering 
legislation to make it even harder?
  So I started out talking about the second-degree amendment. Then I 
talked about the McConnell amendment. Now I have talked about the 
underlying bill. I urge my colleagues from the bottom of my soul to 
please oppose not only these amendments, which I did not think would be 
on the floor, but this bill. Do not close your eyes. See the faces of 
the people the bill would hurt. See the faces of the people the bill 
would hurt. See their faces.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. DeWINE. Mr. President, once this second-degree amendment of my 
colleague from Wyoming is disposed of, it is my intention to offer an 
amendment to the underlying amendment offered by my colleague from 
Kentucky that will strike from that amendment the cap on punitive 
damages that amendment places on a specific area and that specific area 
is sexual assaults of patients by doctors.
  Understandably this is a rarity, but the facts are that many times 
when punitive damages are awarded by juries against doctors, against 
medical providers, the juries do it in cases where there have been 
sexual assaults--a case where the patient has been put under 
anesthesia, the doctor then proceeds to sexually assault the patient. 
It is certainly a rarity. But, Mr. President, I cannot find any moral 
justification for this U.S. Congress saying to the 50 States, saying to 
the people across this country, in that particular case we deem it wise 
to impose our will on the States and to say, in the case of that sexual 
assault, there is going to be a cap, there is going to be a limit on 
what that jury can return in punitive damages against that particular 
individual.
  I hope and would anticipate that this amendment will not be a 
controversial amendment, it will be something we can all agree on. But 
I wanted to notify my colleagues and Members in the Chamber that in a 
short period of time I do in fact intend to offer that particular 
second-degree amendment.
  Mr. President, I yield the floor.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. I thank the Chair.
  Mr. President, I have sought recognition to comment briefly on the 
pending amendment offered on health care liability reform. I heard 
about it this morning at about 11:15. Today, like so many days in the 
Senate, is a very complicated day. Shortly we will be conducting 
hearings in the Judiciary Committee on terrorism, which I am due to 
chair. There is a ceremony starting in a few minutes on the steps of 
the Capitol to commemorate the victims of the Holocaust. But I wanted 
to come over for just a few minutes to comment about this pending 
amendment on health care liability reform.
  My review so far has been cursory because of the limited time 
available, but it is my understanding that this amendment, which is a 
fairly thick document, is the bill which was reported out of the Labor 
and Human Resources Committee earlier this week. It is my thought that 
this legislative proposal now offered in the form of an amendment 
really warrants some very, very considerable study. It is being added 
onto the bill on product liability, which is already complex. The 
health care liability reform amendment is really a piece of legislation 
which I think requires a committee report, requires time to study and 
to reflect, and some judgment.
  When we are dealing with the whole area of tort reform, we are 
building on a field which has had encrustations of judicial decisions 
over decades, or really centuries. As I said earlier this week in a 
brief statement on product liability, some reform, I think, is 
necessary. And in the practice of law, my profession, I have 
represented both plaintiffs and defendants in personal injury cases. 
But the reform process needs extraordinary care because the common law 
has developed one case at a time with very careful analysis, contrasted 
with the legislative process where frequently in hearings only one or 
two Senators may be present, and the markups, as carefully as we can do 
them, do not really produce the kind of legal and factual analysis 
which the courts have developed in the common law. But I do think there 
is room for improvement.
  Last night, I spoke in favor of Senator Brown's amendment to tighten 
up rule 11 to deter frivolous lawsuits. So there are places where we 
can improve the system with a very, very careful analysis. But I do not 
think it is realistic to take up this entire legislative package on 
health care liability reform with the kind of analysis which is 
required to protect the interest of all the parties, both plaintiffs 
and defendants.
  As is the custom of the Senate under the rules of the Senate on the 
pending legislation of product liability, we have a different committee 
report which analyzes the hearings, sets forth the facts and 
conclusions that Senators may use as a basis for their consideration of 
the legislation, which we do not have on this amendment.
  It would be my expectation that the managers would move to table. I 
have not consulted with them. But the Senator from West Virginia, 
Senator Rockefeller, has commented about his interest at least in 
keeping the current legislation limited to product liability, and the 
distinguished Senator from Washington has commented about making sure 
that any amendment has 
[[Page S5765]] at least 60 votes so that we do not have legislation 
that will not stand the 60-vote rule on cloture.
  I note that the majority leader has come to the floor. I shall be 
very brief.
  I would like to put in the Record two studies of the malpractice 
field which I think would be of interest to my colleagues to review, 
and I will read just a couple of paragraphs which articulate the 
conclusions of these studies.
  First, I refer to an article in the Annals of Internal Medicine of 
1992 entitled ``The Influence of Standard of Care and Severity of 
Injury on the Resolution of Medical Malpractice Claims'' by a 
distinguished group of doctors.

       Objective: To explore how frequently physicians lose 
     medical malpractice cases despite providing standard care and 
     to assess whether severity of patient injury influences the 
     frequency of plaintiff payment.

  This is a study of a ``total of 12,829 physicians involved in 8,231 
closed malpractice cases.''
  Under the conclusions section, the study essentially reports that, 
``Our findings suggest that unjustified payments are probably 
uncommon.''
  There is a fair amount to the analysis and a fair amount more to the 
conclusions. But I leave that for the readers in the Congressional 
Record.
  I would next cite an article in the New England Journal of Medicine 
from July 25, 1991, captioned ``Relation Between Malpractice Claims and 
Adverse Events Due to Negligence'':

       Abstract--Background and Methods. By matching the medical 
     records of a random sample of 31,429 patients hospitalized in 
     New York State in 1984 with statewide data on medical-
     malpractice claims, we identified patients who had filed 
     claims against physicians and hospitals.

  And the conclusion:

       Medical-malpractice litigation infrequently compensates 
     patients injured by medical negligence and rarely identifies, 
     and holds providers accountable for, substandard care.

  I would also like to put into the Congressional Record, Mr. 
President, an article from the New York Times of Sunday, March 5, which 
is particularly applicable to the second-degree amendment which has 
been filed here relating to obstetrics. This article reported on a 
study of New York hospitals with the captioned headline: ``New York's 
Public Hospitals Fail, and Babies Are the Victims.'' It is a fairly 
lengthy article. But a couple of paragraphs are worth quoting.

       Each year, for the last decade, dozens of newborn babies 
     have died or have been left to struggle with brain damage or 
     other lifelong injuries because of mistakes made by 
     inexperienced doctors, poorly supervised midwives and nurses 
     in the teeming delivery rooms of New York City's public 
     hospitals.
       Some of the most prestigious medical schools and private 
     hospitals are paid by the city to provide care in its 
     sprawling hospital system. But an examination by the New York 
     Times shows that many of these private institutions have left 
     life-and-death decisions to overworked nurses and trainee 
     doctors who are ill prepared to make them.
       The effects can be seen across the system, from the 
     surgical suites to the clinics. But nowhere are the 
     consequences more devastating than in the delivery rooms 
     where the course of a young life will be changed forever by a 
     few minutes delay in the malfunctioning monitor or a lapse of 
     attention.
       Some hospital and city officials have known about the 
     problem for years, and have worked mightily to keep them from 
     the public. They fear a loss of public confidence and a flood 
     of lawsuits.

  Quoting further from the report:

       These cases are catastrophic and costly. Many of these 
     infants are now grown children suffering from multiple and 
     severe disabilities who require lifetime hospitalization or 
     intensive home care.

  I would also cite a report by the Congressional Budget Office, the 
independent arm of Congress, and their conclusions in 1992:

       Restructuring malpractice liability would not generate 
     large savings in U.S. health care costs. Malpractice premiums 
     amount to less than 1 percent of national health care 
     expenditures. Thus, the premiums directly contribute little 
     to the Nation's overall health care costs.

  These are just a few comments, Mr. President, which I say I am 
abbreviating because the distinguished majority leader is on the floor. 
I have other commitments, having come over just when I heard the 
introduction of the amendment.
  I ask unanimous consent at this point that the articles that I 
referred to from the New England Journal of Medicine, the Annals of 
Internal Medicine, and the New York Times be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows;

   [From Annals of Internal Medicine, Vol. 117, No. 9, Nov. 1, 1992]

    The Influence of Standard of Care and Severity of Injury on the 
                Resolution of Medical Malpractice Claims

 (By Mark I. Taragin, MD, MPH; Laura R. Willett, MD; Adam P. Wilczek, 
           BA; Richard Trout, PhD; and Jeffrey L. Carson, MD)

       Objective; To explore how frequently physicians lose 
     medical malpractice cases despite providing standard care and 
     to assess whether severity of patient injury influences the 
     frequency of plaintiff payment.
       Design: Retrospective cohort study.
       Setting: Physicians from the state of New Jersey insured by 
     one insurance company from 1977 to 1992.
       Participants: A total of 12,829 physicians involved in 8231 
     closed malpractice cases.
       Measurement; Physician care and claim severity were 
     prospectively determined by the insurance company using a 
     standard process.
       Result: Physicians care was considered defensible in 62% of 
     the cases and indefensible in 25% of the cases, in almost 
     half of which the physician admitted error. In the remaining 
     13% of cases, it was unclear whether physician care was 
     defensible. the plaintiff received a payment in 43% of all 
     cases. Payment was made 21% of the time if physician care was 
     considered defensible, 91% if considered indefensible, and 
     59% if considered unclear. The severity of the injury was 
     classified as low, medium, or high in 28%, 47%, and 25% of 
     the cases, respectively. Severity of injury had a small but 
     significant association (P < 0.001) with the frequency of 
     plaintiff payment (low severity, 39%; medium severity, 42%; 
     and high severity, 47%). The severity of injury was not 
     associated with the payment rate in cases resolved by a jury 
     (low severity, 23% medium severity, 25%; and high severity, 
     23%).
       Conclusions: In malpractice cases, physicians provide care 
     that in usually defensible. The defensibility of the case and 
     not the severity of patient injury predominantly influences 
     whether any payment is made. Even in cases that require a 
     jury verdict, the severity of patient injury has little 
     effect on whether any payment is made. Our findings suggest 
     that unjustified payments are probably uncommon.
       The fear of medical malpractice has resulted in significant 
     physician dissatisfaction and has contributed to the decrease 
     in the number of persons entering the field of medicine (1, 
     2). Further, physicians have stimulated legislation for tort 
     reform, increased the practice of defensive medicine, and 
     avoided ``risky'' patients (3-7).
       Physicians' apprehensions about malpractice stem from 
     several perceptions (7). Perhaps foremost is the concern that 
     the malpractice resolution process is unfair (8). Because 
     standards are unclear and possibly inconsistent, physicians 
     are afraid of being sued and of losing the case despite their 
     having provided standard medical care (9). Further, juries 
     are seen as unjustifiably rewarding patients solely on 
     account of the severity of their injuries.
       We explored the influence of physician care and the 
     severity of patient injury on the malpractice process. 
     Contrary to many perceptions, our study suggests that 
     physicians usually win cases in which physician care was 
     deemed to meet community standards and that the severity of 
     patient injury has little bearing on whether a physician 
     loses a case.


                                methods

                              Data source

       We obtained our data from The New Jersey medical Inter-
     Insurance Exchange, a physician-owned insurance company. This 
     company insures approximately 60% of the physicians in New 
     Jersey. Since 1977, demographic information on physicians and 
     detailed descriptive information on every malpractice claim 
     have been entered into a standardized computer data-base.

                      Study design and population

       We did a retrospective cohort study that included 
     physicians insured for any time between 1977 and 1992. During 
     this period, 12,829 physicians were insured and 11,934 cases 
     were filed, of which 80% are currently closed. Because the 
     time from an incident until its resolution can vary greatly, 
     we chose 1 January 1986 as a cutoff point for the incident 
     data because 96% of cases that occurred before this date were 
     closed by 1992. After excluding 14 cases that lacked peer 
     review results, we evaluated 8,231 closed cases.

                            Study variables
       The insurance company's assessment of whether a physician's 
     actions represent standard medical care is based on medical 
     criteria and is not supposed to be influenced by legal 
     concerns. First, the physician is contacted, and if he or she 
     admits error, the case is labeled ``indefensible--insured 
     admits deviation,'' and no further review is done. Otherwise, 
     the case is reviewed by a claims representative employed by 
     the insurance company. If the physician's performance is 
     thought to be clearly medically defensible, the case is 
     labeled ``no peer review, clearly defensible.'' Otherwise, a 
     peer review process ensues in which a physician from the same 
     specialty is chosen from volunteer physicians, many of whom 
     have performed this 
     [[Page S5766]] service regularly for several years. This 
     physician-reviewer then participates in a discussion of the 
     case with the claims representative, the defense attorney, 
     and the defending physician or physicians. Based on the 
     standard of medical care currently practiced by physicians of 
     similar training and experience in the community, the 
     physician-reviewer classifies the claim as ``defensible'' if 
     standard care was provided, ``indefensible'' if not, and 
     ``defensibility unclear'' if the reviewer is unsure. A slight 
     variance to this standard procedure occurs for neurosurgery 
     and orthopedics cases because, historically, experts hold 
     divergent opinions about the appropriate approach to some 
     routine problems. Therefore, a panel of physicians is used 
     instead of one physician-reviewer, and the majority vote is 
     considered final. For every case, we summarized this process 
     of the assessment of physician care as defensible, 
     indefensible, or unclear.
       If a plaintiff receives financial compensation through 
     either a settlement or a jury verdict, the terminology 
     ``payment'' is applied. For the subset of payments resulting 
     from a jury verdict, the term ``award'' is used. We created 
     four categories of payment: less than $10,000; $10,000 to 
     $49,999; $50,000 to $199,999; and $200,000 or more. All 
     dollar amounts are adjusted to represent 1990 dollars.
       The insurance company classifies the severity of the 
     patient's injury using the industry standard National 
     Association of Insurance Commissioners Index (10). This index 
     has nine categories of increasing severity. We collapsed this 
     into three categories: low (no injury, minor injury with no 
     disability, or minor injury with temporary disability); 
     medium (major injury with temporary disability, minor injury 
     with moderate disability, or major injury with moderate 
     disability); and high (grave injury with moderate disability, 
     brain injury with impaired life expectancy, or death).
       The stage of resolution is the point in the legal process 
     at which the case is resolved. A case is created when the 
     insurance company is notified of a plaintiff's claim of 
     damages. A suit occurs when this complaint is filed with the 
     court. Discovery refers to the process by which lawyers 
     collect information about the case.

                          Statistical analysis

       Statistical significance was assessed by chi-square tests 
     as appropriate (11).
                                results

       The characteristics of the 8231 closed cases are summarized 
     in Table 1. Physician care was considered defensible in 62% 
     of the cases and indefensible in 25%. In almost half of the 
     latter cases, the physician admitted error. The remaining 13% 
     of cases were unclear as to defensibility. Payment was made 
     in 43% of all cases, with 52% for less than $50,000 and only 
     15% for greater than $200,000. The median payment was $45,551 
     (range, $24 to $3,965,000). The severity of the injury was 
     classified as low in 28% of cases, medium in 47%, and high in 
     25%.

               TABLE 1.--MEDICAL MALPRACTICE CLAIM FACTORS              
------------------------------------------------------------------------
                                                          Closed Cases(n
                                                              = 8231)   
                         Factor                          ---------------
                                                               n(%)     
------------------------------------------------------------------------
Physician care:                                                         
    Defensible..........................................       5132 (62)
        No peer review, clearly defensible..............       2378 (29)
        Insured found defensible by peer review.........       2754 (33)
    Indefensible........................................       2000 (25)
        No peer review held, insured admits deviation...        881 (11)
        Indefensible (breach of standard)...............       1119 (14)
    Unclear.............................................       1099 (13)
Payment:                                                                
    No..................................................       4730 (57)
    Yes.................................................       3515 (43)
        <$10,000........................................        744 (21)
        $10,000 to <$50,000.............................       1089 (31)
        $50,000 to <$200,000............................       1141 (33)
        $200,000 or more................................        541 (15)
Severity of injury:                                                     
    Low (no injury or minor injury with no or temporary                 
     disability)........................................       2334 (28)
    Medium (minor or major injury with moderate                         
     disability or major injury with temporary                          
     disability)........................................       3824 (47)
    High (grave injury, brain injury, or death).........       2087 (25)
------------------------------------------------------------------------

                             Physician care

       Evaluation of physician care correlated closely with the 
     likelihood of financial payment. A payment was made in 21% of 
     the cases considered defensible, in 91% of the cases 
     considered indefensible, and in 59% of the cases considered 
     unclear. The amount was not directly related to judgments of 
     defensibility (P = 0.16 [for linear trend]).
       Most cases closed early in the process (Fig. 1 not 
     reproducible in Record); 67% were closed before discovery was 
     completed. Only one quarter of the 12% of cases requiring a 
     jury verdict resulted in payment to the plaintiff. Of these 
     awards, the median payment was $114,170 (range, $3281 to 
     $2,576,377). For each stage, the percent of cases that 
     resulted in payment strongly correlated with physician care 
     (P<0.001). For example, in those cases that closed before a 
     suit was filed, payment was made to the plaintiff in 6% of 
     defensible cases, in 69% of cases in which physician care was 
     deemed unclear, and in 93% of indefensible cases. In 
     addition, physician care influenced the stage of resolution. 
     A jury verdict was required for 15% of defensible cases, for 
     10% of cases in which defensibility was unclear, but in only 
     5% of indefensible cases (P<0.001 [for linear trend]). Even 
     in the 12% of cases that required a jury verdict, physician 
     care correlated with the likelihood of a jury award: 21% if 
     defensible, 30% if unclear, and 42% if indefensible (P<0.001 
     [for linear trend]).

                           Severity of injury

       The influence of the severity of the claimant's injury on 
     the resolution process is summarized in Table 2. A similar 
     distribution of physician care was seen in every severity 
     category. The likelihood of obtaining any payment showed a 
     small (<8% difference between low and high claim severity) 
     but statistically significant (P<0.001) trend toward an 
     association between increasing severity and the likelihood of 
     payment. These findings remained consistent when all nine 
     severity-of-injury levels were analyzed.

    TABLE 2.--RELATION BETWEEN SEVERITY OF INJURY AND PHYSICIAN CARE,   
                    PAYMENT, AND STAGE OF RESOLUTION                    
------------------------------------------------------------------------
                                              Severity of injury        
                                     -----------------------------------
                                          Low       Medium       High   
              Variable                 (n=2326)    (n=3820)     n=2085) 
                                     -----------------------------------
                                                     n (%)              
------------------------------------------------------------------------
Physician care:                                                         
    Defensible......................   1407 (61)   2456 (64)   1269 (61)
    Indefensible....................    525 (23)    907 (24)    568 (27)
    Unclear.........................    394 (17)    457 (12)    248 (12)
Payment:                                                                
    No..............................   1420 (61)   2186 (57)   1111 (53)
    Yes.............................    906 (39)   1634 (43)    974 (47)
        <$10,000....................    521 (70)    181 (24)      41 (6)
        $10,000 to <$50,000.........    276 (25)    534 (58)    179 (16)
        $50,000 to <$200,000........      97 (9)    637 (56)    407 (36)
        $200,000 or more............      12 (2)    182 (34)    347 (64)
State of resolution:                                                    
    Before suit filed...............    891 (38)    544 (14)    219 (11)
    After suit, before discovery                                        
     complete.......................    930 (40)   1927 (50)   1005 (48)
    After discovery, more than 45                                       
     days before trial..............      80 (3)     189 (5)     142 (7)
    Within 45 days of trial.........     140 (6)    395 (10)    238 (11)
    During trial, before verdict....     102 (4)     270 (7)     186 (9)
    Verdict or after................     183 (8)    497 (13)    296 (14)
------------------------------------------------------------------------

       The amount of payment correlated closely with the severity 
     of the injury. The median payments for injuries of low, 
     medium, and high severity were $7,189, $50,000, and $115,089, 
     respectively. These findings also remained consistent when 
     all nine severity-of-injury levels were analyzed, except in 
     the case of death. In cases of death, the median payment was 
     $94,346, whereas for the remaining high-severity injuries, 
     the median payment was $210,807.
       In contrast to the overall findings, in cases requiring a 
     jury verdict, the severity of injury was not related to the 
     likelihood of payment (P>0.2). However, the severity of the 
     injury did correlate with the payment amount (P=0.03) (Table 
     3).

                                            TABLE 3.--CASES REQUIRING A VERDICT: RELATION OF PHYSICIAN CARE AND INJURY SEVERITY TO FINAL AWARD STATUS                                           
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    n(%)                                                                      Payment                                           
                                         -------------------------------------------------------------------------------------------------------------------------------------------------------
                Variable                                           Award                                                                                                                        
                                         ---------------------------------------------------------     < $10,000         $10,000 to<        $50,000 to<      $200,000or more         Total      
                                              No(n=740)          Yes(n=236)           Total                                $50,000            $200,000                                          
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Physician care:                                                                                                                                                                                 
    Defensible..........................           605 (79)           161 (21)          766 (100)              8 (5)            33 (20)            62 (39)            58 (36)          161 (100)
    Indefensible........................            59 (58)            42 (42)          101 (100)              0 (0)             8 (19)            13 (31)            21 (50)           42 (100)
    Unclear.............................            76 (70)            33 (30)          109 (100)              2 (6)             8 (24)            11 (33)            12 (36)           33 (100)
Severity:                                                                                                                                                                                       
    Low.................................           141 (77)            42 (23)          183 (100)              3 (7)            15 (36)            16 (38)             8 (19)           42 (100)
    Medium..............................           372 (75)           125 (25)          497 (100)              5 (4)            24 (19)            52 (42)            44 (35)          125 (100)
    High................................           227 (77)            69 (23)          296 (100)              2 (3)            10 (14)            18 (26)            39 (57)           69 (100)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

                               discussion

       In most of the malpractice cases included in our analysis, 
     a physician was judged to have provided medical care that was 
     defensible, and the plaintiff did not receive any payment. 
     Although physician care strongly influenced the overall 
     process, the severity of the patient injury had little effect 
     on the probability of any payment. Most cases closed at an 
     early state, so a jury verdict was rarely needed. For the 
     small number of cases that required a jury verdict, only 24% 
     resulted in payment to the plaintiff and the severity of 
     injury did not influence the probability of payment.
       The determination of physician care was a good predictor of 
     the outcome of a case. For the cases that were felt to be 
     indefensible, the payment rate was 91%. This high payment 
     rate is expected because the insurance 
     [[Page S5767]] company uses the determination of physician 
     care to decide whether to offer to settle a case. In 
     contrast, in the cases where physician care was classified as 
     defensible, the payment rate was 21%.
       Several factors may explain why payment occurred in cases 
     class classified as defensible. First, the determination 
     about physician care was made very early after a claim was 
     generated and may have been inaccurate as more information 
     became available. Second, a physician-based review process 
     may be biased toward assessing physician performance in the 
     physician's favor. Third, the insurance company may err 
     toward an initial determination of physician care as 
     defensible to avoid unnecessary payments. The possibility 
     that new information rendered the original assessment of 
     defensibility incorrect was supported by the fact that 68% of 
     defensible cases that resulted in payment were settled before 
     trial, in half of these before discovery was complete. 
     Further, only 15% of defensible cases that resulted in 
     payment represented awards made to the plaintiff by a jury. 
     In addition, because the physician has the right to refuse to 
     settle and the insurance company is physician-owned, many of 
     the defensible cases that resulted in payment were probably 
     misclassified as defensible. Therefore, although we can only 
     speculate on the number of cases that were inappropriately 
     lost by the physician, our data suggest that inappropriate 
     payments are probably uncommon.

                           Severity of injury

       Although the findings of previous studies are inconsistent 
     (7, 8, 12, 13), we found that the severity of patient injury 
     had little influence on the probability of plaintiff payment. 
     We anticipated that a jury would be more likely to rule in 
     favor of the plaintiff if the patient had a more severe 
     injury. Similarly, we expected that the plaintiff's attorney 
     might negotiate a payment for the plaintiff more frequently 
     in cases in which injury was of higher severity than those in 
     which injury was of lower severity.
       We also found that the assessment of the standard of care 
     by a peer review panel was not related to the severity of 
     injury. This finding differs from that of a recent study, 
     which found that the patient's outcome strongly influenced 
     reviewers' opinions of the appropriateness of care (14). The 
     contradictory findings may reflect the fact that the 
     physician-reviewers in that study had only abstracted data of 
     selected cases. In our study, the malpractice cases were 
     judged during the actual processing of the case, with the 
     medical records available for review and with the treating 
     physician available for additional insight.
       We suspect that our results can be generalized even though 
     our study was done in a subset of physicians from one state. 
     In a previous study, we found that the demographic 
     characteristics of the physicians in our database were 
     similar to the overall population of physicians in New Jersey 
     and varied only slightly from national figures (10, 15, 16). 
     In addition, the frequency of payment, average amount of 
     payment, severity of injury, stage of resolution, and 
     proportion of claims involving only one physician are 
     consistent with the findings of other studies (10, 13, 17). 
     Thus, despite the implicit nature of judgments about 
     defensibility, our results should be generalizable to other 
     physician-patient populations.
       These results have implications for tort reform. This 
     insurance company felt liability was unclear for only 13% of 
     cases, and a jury verdict was required for only 12% of all 
     cases. This suggests that much of the efforts in the 
     malpractice process involves determining the facts of the 
     case and negotiating the amount of settlement rather than 
     resolving disagreements about the presence of liability. 
     Neither the patient nor the physician is served by this 
     extremely inefficient and costly process, which results in 
     delayed payments to injured parties and casts a prolonged 
     cloud over physicians. Our experience in determining 
     physician defensibility suggests that arbitration panels may 
     be successful in assessing liability. Unfortunately, our data 
     shed little light on the costs and benefits of a ``no-fault'' 
     system because most injuries do not enter the current 
     malpractice resolution process (18).
       In summary, our analyses suggest that, in malpractice 
     cases, the physician's care is usually defensible and that 
     the plaintiff usually does not receive any payment. The 
     severity of patient injury affects the payment amount but has 
     little influence on whether monetary damages are received by 
     a plaintiff, especially in cases that are decided by a jury. 
     Further efforts to clarify the frequency of unjustified 
     payments are needed, but our data suggest that such payments 
     are uncommon.
       Acknowledgments: The authors thank Sharona Shapiro, MPA, 
     and Susan Jacobs, PhD, for review of the manuscript; and 
     Leona Stern for manuscript preparation.
       Requests for Reprints: Mark I. Taragin, MD, MPH, University 
     of Medicine & Dentistry of New Jersey, Robert Wood Johnson 
     Medical School, Division of General Internal Medicine, 97 
     Paterson Street, New Brunswick, NJ 08903-0019.
       Current Author Addresses: Drs. Taragin, Willett, and 
     Carson: Division of General Internal Medicine, Department of 
     Medicine, University of Medicine & Dentistry of New Jersey, 
     Robert Wood Johnson Medical School, 97 Paterson Street, New 
     Brunswick, NJ 08903-0019.
       Mr. Wilczek: Medical Inter-Insurance Exchange, 2 Princess 
     Road, Lawrenceville, NJ 08648.
       Dr. Trout: Statistics Department, Cook College, P.O. Box 
     231, New Brunswick, NJ 08903.


                               references

       1. Lewis CE, Prout DM, Chalmers EP, Leake B. How satisfying 
     is the practice of internal medicine? A national survey. Ann 
     Intern Med. 1991;114:1-5.
       2. Charles SC, Wilbert JR, Franke KJ. Sued and nonsued 
     physicians' self-reported reactions to malpractice 
     litigation. Am J Psychiatry. 1985;142:437-40.
       3. Boggs JS. Florida neurosurgical lawsuit profile--1987. J 
     Florida Med Assoc. 1987;74:767-73.
       4. Weiss BD. The effect of malpractice insurance costs on 
     family physicians' hospital practices. J Fam Pract. 
     1986;23:55-8.
       5. Samuel FE. Liability threat slows progress of medical 
     technology. Charlotte Observer. In: U.S. Senate. 
     Congressional Record, 18 September 1986;s12923.
       6. American Medical Association/National Medical Specialty 
     Society Coordination Project on Professional Liability. The 
     Continuing Need for Legislative Reform of the Medical 
     Liability System. Chicago: AMA; February 1987.
       7. U.S. General Accounting Office. Medical malpractice: no 
     agreement on the problems or solutions. Washington, DC: 
     General Accounting Office; 1986: Publication no. GAO/HRD 86-
     50.
       8. Cheney FW, Posner K, Caplan R, Ward RJ. Standard of care 
     and anesthesia liability. JAMA. 1989;261:1599-603.
       9. Medicine by the book. American Medical News. 6 Jan 1989.
       10. U.S. General Accounting Office. Medical malpractice: 
     characteristics of claims closed in 1984. Washington, DC: 
     General Accounting Office; 1987. Publication no. GAO/HRD 87-
     55.
       11. Schlesselman J. Case-Control Studies. New York: Oxford 
     University Press; 1982.
       12. Bovbjerg RR, Tancredi LR, Gaylin DS. Obstetrics and 
     malpractice. Evidence on the performance of a selective no-
     fault system. JAMA. 1991;265:2836-43.
       13. Sloan FA, Hsieh CR. Variability in medical malpractice 
     payments: is the compensation fair? Law and Society Review. 
     1990;24:997-1039.
       14. Caplan RA, Posner KL, Cheney FW. Effect of outcome on 
     physician judgements of appropriateness of care. JAMA. 
     1991;265:1957-60.
       15. Taragin MI, Carson JL, Wilczek AP, Karns ME, Trout JR. 
     Physician demographics and the risk of medical malpractice. 
     Am J Med. 1992;93[In press].
       16. American Medical Association. Physician Characteristics 
     and Distribution. Chicago: Department of Data Release 
     Services, Division of Survey and Data Resources; 1984.
       17. U.S. General Accounting Office. Medical malpractice: 
     six state case studies show claims and insurance costs still 
     rise despite reforms. Washington, DC: General Accounting 
     Office; 1987. Publication no. GAO/HRD 87-21.
       18. Localio AR, Lawthers AG, Brennan TA, Laird NM, Hebert 
     LE, Peterson LM, et al. Relation between malpractice claims 
     and adverse events due to negligence. N Engl J Med. 
     1991;325:245-51.
                                                                    ____

 [From the New England Journal of Medicine, Vol. 325, No. 4, July 25, 
                                 1991]

     Relation Between Malpractice Claims and Adverse Events Due to 
     Negligence--Results of the Harvard Medical Practice Study III

  (By A. Russell Localio, J.D., M.P.H., M.S., Ann G. Lawthers, Sc.D., 
 Troyen A. Brennan, M.D., J.D., M.P.H., Nan M. Laird, Ph.D., Liesi E. 
Hebert, Sc.D., Lynn M. Peterson, M.D., Joseph P. Newhouse, Ph.D., Paul 
              C. Weiler, LL.M., and Howard H. Hiatt, M.D.)

       Abstract Background and Methods. By matching the medical 
     records of a random sample of 31,429 patients hospitalized in 
     New York State in 1984 with statewide data on medical-
     malpractice claims, we identified patients who had filed 
     claims against physicians and hospitals. These results were 
     then compared with our findings, based on a review of the 
     same medical records, regarding the incidence of injuries to 
     patients caused by medical management (adverse events).
       Results. We identified 47 malpractice claims among 30,195 
     patients' records located on our initial visits to the 
     hospitals, and 4 claims among 580 additional records located 
     during follow-up visits. The overall rate of claims per 
     discharge (weighted) was 0.13 percent (95 percent confidence 
     interval, 0.076 to 0.18 percent). Of the 280 patients who had 
     adverse events caused by medical negligence as defined by the 
     study protocol, 8 filed malpractice claims (weighted rate, 
     1.53 percent; 95 percent confidence interval, 0 to 3.2 
     percent). By contrast, our estimate of the statewide ratio of 
     adverse events caused by negligence (27,179) to malpractice 
     claims (3570) is 7.6 to 1. This relative frequency overstates 
     the chances that a negligent adverse event will produce a 
     claim, however, because most of the events for which claims 
     were made in the sample did not meet our definition of 
     adverse events due to negligence.
       Conclusions. Medical-malpractice litigation infrequently 
     compensates patients injured by medical negligence and rarely 
     identifies, and holds providers accountable for, substandard 
     care. (N Engl J Med 1991; 325:245-51.)

[[Page S5768]]

       The frequency of malpractice claims among patients injured 
     by medical negligence has been the subject of much 
     speculation and little empirical investigation. Two 
     fundamental questions about malpractice litigation have been 
     how well it compensates patients who are actually harmed by 
     medical negligence, and whether it promotes quality and 
     penalizes substandard care. If negligent medical care 
     infrequently leads to professional censure or a malpractice 
     claim, then the deterrence of substandard care may be 
     suboptimal1,2 and the civil justice system will 
     compensate few patients for their medical injuries.\3\ If, as 
     some allege,\4\ sizable numbers of malpractice claims are 
     filed for medical care that is not negligent, then the costs 
     of claims may be excessive, and the credibility and 
     legitimacy of malpractice litigation as a means of obtaining 
     civil justice may be reduced.
       Footnotes at end of article.
       Danzon\5\ estimated on the basis of reviews of medical 
     records and claims data from California in the mid-1970's\6\ 
     that for each malpractice claim, 10 injuries were caused by 
     negligent care. That study estimated only the relative 
     frequency of claims and negligence; without a method of 
     determining the fraction of claims that did not involve 
     negligence, Danzon could not estimate the probability that a 
     claim would follow medical negligence.
       To calculate this probability, the Harvard Medical Practice 
     Study linked clinical reviews of 30,195 inpatient records 
     with statewide records of malpractice claims. Linking these 
     two data sets permitted a determination of the frequency with 
     which negligent and nonnegligent medical care, as evaluated 
     by a team of physician-reviewers, led to malpractice claims.


                                methods

                       Data from medical records

       Our review of the records of a random sample of 31,429 
     patients discharged in 1984, drawn from 51 hospitals across 
     New York State, is described in detail elsewhere.\7\ In 
     brief, the review proceeded in three stages.
       In the first stage, a group of specially trained nurses and 
     medical-records administrators used standard protocols to 
     screen records for at least 1 of 18 events signaling a 
     possible adverse event.
       In the second stage, medical records that met at least 1 of 
     these 18 criteria were referred to two physicians who 
     independently evaluated the cause of the patient's injury and 
     whether there had been negligence. The physicians first 
     decided whether the patient had suffered an injury caused at 
     least in part by medical management. Injuries that either 
     prolonged hospitalization or led to disabilities that 
     continued after discharge were deemed to be adverse events. 
     Negligence was considered to have occurred if the medical 
     care that caused the adverse event was below the expected 
     level of performance of the average practitioner who treated 
     problems such as the patient's at that time.
       Physicians recorded their judgments about causation and 
     negligence on an ordered, categorical scale ranging from ``no 
     possible adverse event (or negligence)'' to ``virtually 
     certain evidence of an adverse event (or negligence).'' 
     Reviewers also judged the degree of disability resulting from 
     the adverse event and described briefly the nature of the 
     injury, its relation to medical management, and the negligent 
     act or omission.
       In the third stage, when the two physicians disagreed on 
     the existence or description of an adverse event, the 
     discrepancy was resolved by a supervising physician who was 
     blinded to their decisions and made his or her own judgment 
     about causation and negligence.
       Injuries were classified as adverse events, and then as 
     negligent, when the average of the two final physicians' 
     evaluations represented a judgment of at least ``more likely 
     than not.'' Multiple reviews permitted the analysis of 
     results under alternative assumptions about thresholds for 
     identifying causation and negligence.
       The record review produced five groups of cases: (1) cases 
     that met no screening criteria for adverse events or 
     negligence, (2) those referred for review by the physicians 
     but without evidence of an adverse event, (3) cases of ``low-
     threshold adverse events'' with judgments of causation that 
     were borderline or lower, (4) cases of adverse events with no 
     evidence of negligence, and (5) cases of adverse events due 
     to negligence.
       We performed sensitivity analyses to identify possible 
     biases due to missing records or misclassified reviews. To 
     assess the effect of false negative findings in the stage 1 
     screening by medical-records administrators, we conducted a 
     second review of a random sample of 1 percent of all the 
     records located.\7\ A second team of physicians independently 
     reviewed 318 records from two hospitals to assess the 
     reliability of the initial physicians' reviews.\8\
       Several months after the initial visits, the participating 
     hospitals searched against for missing records and explained 
     why some charts remained unavailable. At six randomly 
     selected facilities, our medical-review team conducted 
     another three-stage review to determine whether adverse 
     events were more likely to have occurred when records were 
     missing. At the remaining hospitals, the medical-records 
     administrators referred for physician review only cases for 
     which there was evidence of legal action in the patients' 
     charts. At all hospitals, we obtained identifying data on 
     patients for later use in matching the records with data on 
     malpractice claims.

                       Data on malpractice claims
       The data on malpractice claims included all formal claims 
     filed against physicians and hospitals and reported to the 
     Office of Professional Medical Conduct (OPMC) at the New York 
     Department of Health. The data base at the OPMC lists claims 
     according to the defendant, not the patient making the claim. 
     We have referred to each claim in the OPMC records as a 
     ``provider claim.'' Because one patient could sue several 
     defendants for a single injury, the number of defendants 
     exceeded the number of patients. We have referred to counts 
     of claims by patients as number of ``patient claims.''
       New York statutes and regulations require regular reporting 
     of claims by domestic and out-of-state insurance carriers,\9\ 
     self-insurance programs,10-12 and all hospitals.\13\ 
     Both the Insurance Department and the Department of Health 
     formally advised all insurance and health care organizations 
     about the needs of our study and about the reporting 
     mandates.\14\ The OPMC allowed us complete access to all 
     computer files and paper abstracts. The OPMC data base, which 
     contained 67,900 provider claims reported from 1975 through 
     May 1989, became our starting point for estimating patient 
     claims, computing lengths of time between injuries and 
     claims, determining the chances that payment would result 
     from a claim, identifying claimants in the sample, and 
     linking their claims to the sampled patients' hospital 
     records. When necessary, members of the study team contacted 
     and visited individual hospitals to supplement the OPMC data 
     with more comprehensive information.
       To test the robustness (resistance to errors in 
     assumptions) of the estimate of the frequency of claims, we 
     calculated the number of patient claims for 1984 in three 
     ways. First, we summed the case-sampling weights (the 
     population of patients represented by each sampled record) of 
     the claims linked to medical records through the matching 
     process described below and extrapolated from the sample to 
     the New York State population. Second, we calculated the 
     number of patient claims from the OPMC's statewide records 
     for injuries that occurred in 1984, regardless of when the 
     patient filed the claim. Third, we estimated the annual 
     frequency of patient claims by averaging the number of claims 
     filed by year from 1984 through 1986. Averse events 
     discovered in 1984 would probably have been reflected, if at 
     all, in malpractice claims filed during this period.

                            Matching process

       Our study protocol precluded interviews with patients about 
     malpractice claims. Claimants were identified by linking 
     their hospital records to OPMC claims records. This linkage 
     proceeded only after the completion of the review of medical 
     records. Physician-reviewers were unaware of the existence of 
     a claim unless the medical record mentioned it.
       We used both computer-based and manual matching techniques 
     to link the records of patients in the sample to malpractice 
     claims. Identifying characteristics for linking patients to 
     claimants included the patient's name, address, ZIP Code, 
     social security number, and age, the geographic location 
     where the injury occurred, and the hospital from which he or 
     she was discharged. Lack of complete data on the identifiers 
     with strong discriminating power such as the social security 
     number forced us to rely on a combination of matching 
     characteristics. The matching algorithm, described in detail 
     elsewhere,\7\ allowed for errors of differences in the 
     spelling of names, so that actual matches were erroneously 
     excluded.\15\ Manual matching, a common step in record-
     linkage procedures,\16\ helped to confirm links because of 
     the amount of descriptive information not in machine-readable 
     format. The OPMC requested additional descriptive data from 
     the insurers to assist us in confirming or ruling out 
     matches.
       After identifying the sampled patients who had filed 
     claims, we considered whether their allegations of 
     malpractice referred to the medical care delivered or 
     discovered in the sampled hospitalization. A team consisting 
     of an attorney experienced with malpractice data, a health 
     services researcher, and a physician-lawyer compared clinical 
     information from the review of medical records with coded 
     data and summary descriptions from the OPMC claims records. 
     This team rated by consensus its degree of confidence in the 
     match by first eliminating cases for which the group was 
     confident that no match existed and those that lacked 
     sufficient information to permit a judgment. For all other 
     cases, the team's degree of confidence in the match was rated 
     on a six-point confidence scale (Table 2).

       Estimates of statewide rates of adverse events and claims

       The medical-record-sampling design permitted us to 
     extrapolate from the sample to the population of all patients 
     discharged from hospitals in New York State in 1984. The 
     analysis of the cases that produced claims required separate 
     adjustments sampling weights to account for missing records. 
     These adjustments assumed that the rate of claims among the 
     patients whose hospital records were never found equaled the 
     rate among those whose records were initially not located but 
     were found on follow-up. The standard errors of rates of 
     claims account for the effects of a stratified, unequal-
     cluster sampling design.''
                         [[Page S5769]] results

          Adverse events and adverse events due to negligence

       As we reported in detail earlier,\8\ the three-stage review 
     of medical records detected 1133 adverse events (after 
     adjustment for double counting of the same hospitalizations). 
     Two hundred eighty adverse events, representing 1 percent of 
     all discharges (95 percent confidence interval, 0.8 to 1.2 
     percent), were judged to have been caused by negligence 
     (Table 1).

  TABLE 1.--RESULTS OF THE REVIEW OF A SAMPLE OF 31,429 MEDICAL RECORDS 
                      FROM NEW YORK STATE, 1984\1\                      
------------------------------------------------------------------------
                                Number of                               
           Category              records              Comments          
------------------------------------------------------------------------
Sample selected...............     31,429  Random sample from 51        
                                            hospitals.                  
Records not located on initial      1,234  .............................
 visit.                                                                 
Records screened for possible      30,195  .............................
 AE (first stage).                                                      
Records referred for physician      7,817  Satisfied 1 or more of 18    
 review after screening.                    screening criteria.         
Reviewed by physicians for       \2\7,743  Two physicians judged the    
 presence of AE and neglience               likelihood of AE and        
 (second stage).                            neglience indepenently.     
Reviewed by a third physician       1,808  Third review provided        
 to resolve disagreement                    majority opinion.           
 (third stage).                                                         
AE's identified...............      1,133  Majority of reviewers'       
                                            combined confidence level at
                                            least ``more likely than    
                                            not'' (adjusted for         
                                            incidence).                 
AE's due to negligence                280  Majority found AE caused by  
 identified.                                negligence with confidence  
                                            level at least ``more likely
                                            than not'' (adjusted for    
                                            incidence).                 
------------------------------------------------------------------------
\1\AE denotes adverse event.                                            
\2\Seventy-four of the 7817 records referred for review in stage 2 were 
  not reviewed. Case-sampling weights were reallocated among the 7743   
  cases actually reviewed.                                              

                      Analysis of Matched Records

       Ninety-eight patients in the sample filed claims against 
     151 health care providers (Table 2). Not all these patients 
     alleged malpractice during the episodes of care covered by 
     the study. When we considered only matches designated ``more 
     like than not,'' we linked 47 of these malpractice claims to 
     the sampled hospitalizations. These 47 cases represent a rate 
     of malpractice claims per discharge in New York State of 0.11 
     percent (95 percent confidence interval, 0.06 to 0.16 
     percent).

 TABLE 2.--RESULTS OF MATCHING MALPRACTICE CLAIMS TO HOSPITALIZATIONS IN
                         NEW YORK STATE, 1984\1\                        
------------------------------------------------------------------------
      Decision on Matching (Confidence Score)         Number    Percent 
------------------------------------------------------------------------
Claimants in sample...............................         98  .........
Medical records reviewed..........................  \2\30,121  .........
Claimants linked to sampled hospitalizations:                           
    Virtually certain (6).........................         41       41.8
    Strong evidence (5)...........................          2        2.0
    More than likely (4)..........................          4        4.1
                                                   ---------------------
      Subtotal....................................         47  .........
                                                   =====================
Claimants in sample but not linked to sampled                           
 hospitalizations:                                                      
    Not quite likely (3)..........................          1        1.0
    Slight-to-modest evidence (2).................          0        0.0
    Little evidence (1)...........................          1        1.0
    Definite nonmatch.............................         44       44.9
    Insufficient data.............................          4        4.1
    AE discovered after discharge\3\..............          1        1.0
                                                   ---------------------
      Subtotal....................................         51  .........
------------------------------------------------------------------------
\1\AE denotes adverse event. Because of rounding, percentages do not    
  total 100.                                                            
\2\Seventy-four of 30.195 records located were not reviewed. None of the
  cases involved claimants. Case-sampling weights have been reallocated 
  among the usable observations.                                        
\3\AEs that occurred during the sampled hospitalization and were        
  discovered after discharge have been omitted.                         


       In most cases, the reviewing team's judgments went clearly 
     for or against linking the claim to a sampled 
     hospitalization. For example, in 30 of the 44 cases in which 
     there was considered to be no possible match, the main reason 
     was a mismatch between the date of the injury or the date 
     when the claim was filed and the date of the sampled 
     hospitalization. In the four cases for which there were 
     insufficient data, we chose to vote against linkage rather 
     than guess. None of these cases involved adverse events. 
     Another matched case did not qualify for inclusion according 
     to the sampling design because the adverse event was 
     discovered after the sampled hospitalization, rather than 
     before or during it.\7\
       Table 3 shows the distribution of malpractice claims 
     according to the five groups of cases defined by the outcome 
     of the medical-record review. The percentage of claimants in 
     each subgroup increased as the findings of the reviewers 
     increased in severity from ``no screening criteria met'' to 
     ``adverse events caused by negligence.'' For all outcomes 
     groups, the rate of malpractice claims was low. The chance 
     that an injury caused by medical negligence would result in 
     litigation was 1.53 percent (95 percent confidence interval, 
     0 to 3.24 percent).

                    TABLE 3.--RATE OF PATIENT MALPRACTICE CLAIMS IN THE SAMPLE OF 30,121 MEDICAL RECORDS FROM NEW YORK STATE, 1984\1\                   
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Estimated Rate of                                                     
                                  Number of       Number of    Estimated Number      Claims per                                                         
      Group of Records          Discharges in     Claimants    of Claimants in     Discharge (95%                          Comments                     
                                    Sample        in Sample        new York            CI)\2\                                                           
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cases not referred by MRA...             22.378           12                899           0.045 (-)  5 Cases: alleged failure to diagnose during        
                                                                                                      outpatient visit.                                 
Cases referred: no                        6,275           14              1,000            0.18 (-)  9 Cases: physician-reviewers knew about claim,     
 possibility of AE.                                                                                   found no AE.                                      
                                                                                                     4 Cases: disagreement settled by third reviewer.   
Low-threshold AEs (less than                335            3                 92            0.30 (-)  1 Case: one of two reviewers found negligence.     
 likely).                                                                                                                                               
AEs (more than likely) not                  853           10                561            0.79 (-)  6 Cases: one of two reviewers found negligence.    
 caused by negligence.                                                                                                                                  
AEs (more than likely)                      280            8                415       1.53 (0-3.24)  1 Case: single reviewer only.                      
 caused by negligence.                                                                                                                                  
                             -----------------------------------------------------------------------                                                    
      Total.................          \3\30.121           47               2967    0.11 (0.06-0.16)                                                     
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\CI denotes confidence interval, MRA medical-records administrator, and AE adverse event.                                                             
\2\Based on population-based estimates on discharges. For example. 1.53 percent = 415 of 27,179. See Figure 1.                                          
\3\Seventy-four of 30,195 cases did not undergo physician review; they were dropped from the calculations of population estimates, and their weights    
  were reallocated among the usable observations.                                                                                                       

       For 12 of the 47 matched observations, the medical-records 
     administrators found that none of the 18 screening criteria 
     were satisfied, and the review process ceased without 
     participation by the physicians. Five of these 12 claimants 
     alleged the failure to diagnose a condition during outpatient 
     visits before the sampled hospitalizations. Among the 
     remaining 35 cases, all of which were reviewed by physicians, 
     clinical judgments about the cause of the adverse outcome and 
     the contribution of negligence were often contradictory. In 
     some cases the two physicians disagreed on the presence of an 
     adverse event in the second stage of the process, and a third 
     physician resolved the issue by finding no adverse event. In 
     others the physicians agreed on causation but differed about 
     the occurrence of, or their levels of confidence about, 
     negligence. In nine cases, the reviewing team knew of pending 
     malpractice claims but found no evidence of adverse events. 
     (Details of the reviews of the 47 cases are available 
     elsewhere.*)
     *See NAPS document no. 04877 for three pages of supplementary 
     material. Order from NAPS c/o Microfiche Publications. P.O. 
     Box 3513. Grand Central Station, New York, NY 10163-3513. 
     Remit in advance (in U.S. funds only) $7.75 for photocopies 
     or $4 microfiche. Outside the U.S. and Canada add postage of 
     $4.50 ($1.50 for microfiche postage). There is an invoicing 
     charge of $15 on orders not prepaid. This charge includes 
     purchase order.
 Statewide estimates of adverse events due to negligence not resulting 
                         in malpractice claims

       Ninety-eight percent (weighted rate) of all adverse events 
     due to negligence in our study did not result in malpractice 
     claims (Fig. 1--not reproducible in Record). The group of 
     these cases for which the reviewers could determine the 
     existence of disability and for which their combined score 
     indicated either ``strong'' or ``certain'' evidence of 
     negligence can be extrapolated to about 13,000 discharges 
     statewide in 1984. Within this group, 58 percent of the 
     patients had only moderately incapacitating injuries and 
     recovered within six months. the remaining patients--those 
     with moderate-to-severe disability--correspond to about 5400 
     patients discharged from hospitals in New York State. Over 
     half these patients were under 70 years of age and thus 
     likely to have lost wages as a result of the injury.

            Follow-up reviews of medical records and claims

       Medical records located after intensive follow-up were a 
     richer source of claims than those found on the initial 
     hospital visits, but there was no difference in the rates of 
     adverse events or negligence between the initial review and 
     follow-up.\7\ twelve of the 580 patients whose records were 
     found during follow-up filed malpractice claims against 18 
     providers, and four of these claims related to the treatment 
     received during the sampled hospitalizations. The rate of 
     claims among these patients (0.66 percent; 95 percent 
     confidence interval, 0 to 1.37 percent) was six times higher 
     than the rate for the initial review (0.11 percent), but the 
     difference was not statistically significant.
       In the cases of three of the four newly identified patient 
     claims related to the sampled hospitalizations, one 
     physician-reviewer found evidence of negligence whereas the 
     other did not. Thus, the combined scores were below the 
     threshold for a finding of negligence. The fourth case was 
     not reviewed because the follow-up protocol for that hospital 
     did not call for physician review.

        Relative frequency of negligence and malpractice claims

       By combining the results of the initial and follow-up 
     reviews, we estimated the number of claims statewide to be 
     3570, or a rate of claims per discharge of 0.13 percent (95 
     percent confidence interval, 0.08 to 0.18 percent) in 1984. 
     This estimate suggests a ratio of negligence to claims of 7.6 
     to 1 (27,179 to 3570). Our inability to link four claims to 
     hospitalizations (or to rule out linkage) because of 
     insufficient data had little effect on this 
     [[Page S5770]] figure. If two of these four claims had been 
     matched to the sample, the relative frequency would have 
     changed little (7.3 to 1). The sample-based estimate of the 
     number of patient claims statewide (3570) is comparable to 
     the estimate based on the OPMC records of the number of 
     patient claims for injuries in 1984 (3780) and the average 
     annual number of patient claims filed from 1984 through 1986 
     (3670). thus, claims occur only 13 to 14 percent as often as 
     injuries due to malpractice. Our estimate of the fraction of 
     adverse events due to negligence that led to claims is, 
     however, far lower (1.53 percent).
                               Discussion

       Other studies have examined the frequency of negligence in 
     relation to the total number of claims.\5\,\6\ Our study 
     has taken the next step by matching individual clinical 
     records with individual claims records to determine what 
     fraction of instances of negligence leads to claims. Our data 
     suggest that the number of patients in New York State who 
     have serious, disabling injuries each year as a result of 
     clearly negligent medical care but who do not file claims 
     (5400) exceeds the number of patients making malpractice 
     claims (3570). Perhaps half the claimants will eventually 
     receive compensation.\7\,\18\
       Why so few injured patients file claims has not been widely 
     researched. Many may receive adequate health or disability 
     insurance benefits and may not wish to spoil longstanding 
     physician-patient relationships. Others may regard their 
     injuries as minor, consider the small chance of success not 
     worth the cost, or find attorneys repugnant.\19\ Trial 
     lawyers usually accept only the relatively few cases that 
     have a high probability of resulting in a judgment of 
     negligence with an award large enough to defray the high 
     costs of litigation. A final possible explanation is that 
     many patients may fail to recognize negligent care.\20\
       Our results also raise questions about whether malpractice 
     litigation promotes high quality in medical care. 
     Historically, there has been scant empirical analysis of this 
     issue.\21\ Our data reflect a tenuous relation between 
     proscribed activity and penalty and thus are consistent with 
     the view that malpractice claims provide only a crude means 
     of identifying and remedying specific problems in the 
     provision of health care. Our findings also support recent 
     comments about the limited usefulness of the rate of claims 
     as an indicator of the quality of care.\22\ Unless there is a 
     strong association between the frequency of claims and that 
     of negligence, the rate of claims alone will be a poor 
     indicator of quality\23\ because rates can easily vary widely 
     at the same underlying frequency of negligence or adverse 
     events. The filing of a claim could, however, signal a need 
     for further investigation because of the likelihood that an 
     actual adverse event or actual negligence prompted the 
     complaint.
       Our study differs from previous work in that it goes beyond 
     statements about the rate of negligence in relation to the 
     rate of malpractice claims. The relative frequency 7.6 to 1 
     does not mean, as is commonly assumed,\24\ that 13 to 14 
     percent of injuries due to negligence lead to claims. As the 
     linking of the medical-record reviews to the OPMC claims 
     files has shown, the fraction of medical negligence that 
     leads to claims is probably under 2 percent. The difference 
     is accounted for by injuries not caused by negligence, as 
     defined by our protocol, that give rise to claims.
       This finding does not mean that the 39 cases of claims in 
     which our physician-reviewers did not find evidence of an 
     adverse event due to negligence are groundless under 
     prevailing malpractice law. Our study was not designed to 
     evaluate the merits of individual claims. Patients sometimes 
     file claims regarding medical outcomes that do not qualify as 
     adverse events by our definitions; without access to the full 
     insurance records, we cannot assess the prospects of 
     individual cases.
       More generally, the process of and criteria for making 
     decisions about causation and negligence differ in a 
     scientific study and in civil litigation. In this study, 
     majority rule determined whether there had been an adverse 
     event or an adverse event due to negligence. Our reviewers 
     sometimes disagreed about causation and negligence; when only 
     one found negligence, the case did not qualify as an adverse 
     event due to negligence (except in the rare case when there 
     was only a single reviewer). In a lawsuit, a single expert 
     opinion might be sufficient to support a finding of 
     negligence; under our protocol it would not. When experts 
     differ, the final judgment is especially sensitive to the 
     process of decision making.\25\ Thus, our findings are not 
     directly comparable to the results of civil litigation.
       Although this lack of strict comparability should warn us 
     against drawing conclusions about the merits of individual 
     malpractice claims, it does not undermine our findings about 
     the small probability (under 2 percent) that a claim would be 
     filed when medical negligence caused injury to the patient. 
     This result remains robust in spite of the possibility of 
     misclassification of individual cases, the effect of using 
     different criteria for negligence, and the likelihood of 
     missing medical records and missing data on malpractice 
     claims.
       Disagreement about or misclassification of an individual 
     case need not bias our results. In the duplicate review of 
     subsample of 318 medical records, reported earlier,\8\ a 
     second team of physicians did not identify the same group of 
     adverse events as did the first team, but they did find about 
     the same incidence of adverse events and adverse events due 
     to negligence. A replication of the study might generate the 
     same rates of adverse events and negligence but would not 
     necessarily classify the same claims as backed up by evidence 
     of negligence. Therefore, as in other studies based on 
     implicit review of medical records,\26\ disagreement about 
     individual cases does not imply bias in our estimates.
       The use of less criteria for negligence would not alter the 
     rate of claims among the cases of adverse events due to 
     negligence, but it would affect the overall frequency of 
     negligence as well as estimates in this and earlier studies 
     of the ratio of adverse events due to negligence to claims 
     (7.6 to 1). New criteria for negligence would change our 
     estimate of 1.53 percent only if they affected the rate of 
     negligence among the claims differently from the rate of 
     negligence among cases in which no claim was made. Our data 
     suggest, however, that an increase in the rate of adverse 
     events due to negligence among cases in which no claim was 
     made matches any increase in the rate of negligence among 
     claims. Had a judgment by either physician-reviewer that 
     negligence had occurred been sufficient to count a case as an 
     adverse event due to negligence under our protocol, the 
     probability that an adverse event due to negligence would 
     result in a malpractice claim would remain virtually 
     unchanged (1.51 percent).
       The existence of overlooked adverse events due to 
     negligence would also not influence this estimate unless the 
     proportions of cases of negligence missed among the claimants 
     and among the nonclaimants were unequal. The medical-records 
     administrators might have overlooked adverse events due to 
     negligence during the first-stage screening. As reported 
     earlier, however, the medical-records administrators missed 
     evidence of negligence in only 4.5 percent of the charts 
     randomly selected for a duplicate review.\8\ Alternatively, 
     the hospital records might have met none of the criteria for 
     further review but still have involved negligent care.
       On the one hand, undercounting instances of negligence 
     among the cases in which malpractice claims were made would 
     cause the estimate of 1.53 percent to be low. Although we 
     cannot calculate the probability that an adverse event due to 
     negligence took place among the 12 malpractice claims that 
     were classified as having no evidence of negligence, we can 
     calculate that probability for the claims found on screening 
     to have evidence of negligence (0.20) (Table 3). The 
     assumption that these 12 cases should have been identified as 
     positive (as having evidence of a possible adverse event) 
     would raise the estimate of the probability of litigation 
     among adverse events due to negligence from 1.53 to 2.2 
     percent.
       On the other hand, the medical-records administrators might 
     also have missed adverse events due to negligence that were 
     not in litigation, thus causing our estimate to be too high. 
     Medical-records administrators may have been more likely to 
     miss adverse events in the records of nonclaimants than in 
     those of claimants because evidence of legal action was 1 of 
     the 18 screening criteria. Assuming that 4.5 percent of the 
     negative screens were falsely negative, as suggested by the 
     duplicate review, and that the rate of adverse events due to 
     negligence among these missed cases equaled the rate among 
     the cases in which no claim was made that were identified as 
     positive on screening, there would be additional adverse 
     events due to negligence among the nonclaimants. Assuming 
     further a much lower rate of negligence among the cases in 
     which no claim was made that had truly negative screens, for 
     example 1/20 the rate of those identified on screening as 
     positive, the estimate of the rate of claims among the 
     adverse events due to the negligence would be lowered from 
     1.53 to 1.2 percent.
       These potential biases in the medical-records review are 
     small as compared with the size of the confidence interval 
     produced by sampling variation. Even with a rate at the upper 
     limit of the 95 percent confidence interval (3.2 percent), 
     the probability that a claim would be filed when a patient 
     was injured as a result of medical malpractice remains well 
     below previous estimates.
       Malpractice claims would have been missed--another possible 
     source of bias--if we had failed to locate a claimant's 
     medical record and could not identify a claim through the 
     record-matching process.
      The results of the extensive follow-up search for missing 
     records suggest that hospitals may have selectively 
     withheld the medical records of some claimants, but not of 
     large numbers of them. The higher rate of claims per 
     discharge in the records identified at follow-up is within 
     the degree of variation expected with small samples. In 
     addition, hospitals may have relinquished all records 
     without regard to patient out-come but may have failed to 
     report malpractice claims to the OPMC. The effort of the 
     state government to achieve complete reporting suggests 
     that we used the most complete, reliable data available, 
     although no external sources can substantiate the 
     completeness of the data.
       Unrestricted access to medical records and full reporting 
     of claims would not eliminate potential bias due to claims 
     relating to medical care received in 1984 but not yet filed 
     by May 1989, when our data collection ended. According to the 
     OPMC data base, 90 percent of claims were filed within 4.4 
     years of the date of the injury. In addition, 43 percent of 
     the adverse events were due to medical care 
     [[Page S5771]] that was provided before the sampled 
     hospitalization in 1984.\7\ Thus, we expect that fewer than 
     10 percent of all possible claims were absent from the OPMC 
     data base and that our estimates of the incidence of 
     litigation are no more than 10 percent too low.
       The similarity of sample-based and population-based 
     estimates of the frequency of patient claims makes 
     substantial bias due to missed claims unlikely. The 
     similarity of the estimates suggests that in linking claims 
     to medical records we missed few actual matches, and that by 
     1989 few claims related to our sample of hospitalizations 
     from 1984 remained to be filed.
       The results of this study, in which malpractice claims were 
     matched to inpatient medical records demonstrate that the 
     civil-justice system only infrequently compensates injured 
     patients and rarely identifies and holds health care 
     providers accountable for substandard medical care. Although 
     malpractice litigation may fulfill its social objectives 
     crudely, support for its preservation persists in part 
     because of the perception that other methods of ensuring a 
     high quality of care27,28 and redressing patients' 
     grievances\29\ have proved to be inadequate. The abandonment 
     of malpractice litigation is unlikely unless credible systems 
     and procedures, supported by the public, are instituted to 
     guarantee professional accountability to patients.

       [We are indebted to Matthew Jaro, M.S., record-linkage 
     consultant, for his expertise in computer-based record 
     linkage.]
                               Footnotes

     \1\Bovbjerg RR. Medical malpractice on trial: quality of care 
     is the important standard. Law Contemp Probl 1986; 49:321-48.
     \2\Bell PA. Legislative intrusions into the common law of 
     medical malpractice: thoughts about the deterrent effect of 
     tort liability. Syracuse Law Rev 1984; 35:939-93.
     \3\Abel RL. The real tort crisis: too few claims. Ohio State 
     Law J 1987; 48:443-67.
     \4\Lewis R. AMA presses plan to change state tort law. 
     American Medical News March 1, 1985:1, 25.
     \5\Danzon PM. Medical malpractice: theory, evidence, and 
     public policy. Cambridge, Mass.: Harvard University Press, 
     1985.
     \6\California Medical Association. Report on the medical 
     insurance feasibility study. San Francisco: California 
     Medical Association, 1977.
     \7\Harvard Medical Practice Study. Patients, doctors, and 
     lawyers: medical injury, malpractice litigation, and patient 
     compensation in New York. Cambridge, Mass.: President and 
     Fellows of Harvard College, 1990.
     \8\Brennan TA, Leape LL, Laird NM, et al. Incidence of 
     adverse events and negligence in hospitalized patients: 
     results of the Harvard Medical Practice Study I. N Engl J Med 
     1991, 324:370-6.
     \9\N.Y. Laws 1975, ch. 109, sec. 2.
     \10\N.Y. Laws 1978, ch. 141, sec. 1.
     \11\N.Y. Laws 1980, ch. 866, sec. 17.
     \12\N.Y. Laws 1981, ch. 357, sec. 1.
     \13\N.Y. Laws 1988, ch. 184, sec. 6 (amending N.Y. Insurance 
     Law sec. 315(b)(2)).
     \14\State of New York, Insurance Department Circular letter 
     no. 14, 1988.
     \15\Newcombe HB, Kennedy JM, Axford SJ, James AP. Automatic 
     linkage of vital records. Science 1959; 130:954-9.
     \16\Department of Commerce. Statistical policy working paper 
     5. Washington, D.C.: Government Printing Office, 1980:12-3.
     \17\Shah BV. SESUDAAN: standard errors program for computing 
     of standardized rates from sample survey data. Research 
     Triangle Park, N.C.: Research Triangle Institute, 1981.
     \18\General Accounting Office. Medical malpractice: 
     characteristics of claims closed in 1984. Washington, D.C.: 
     General Accounting Office, 1977. (Publication no. GAO/HRD-87-
     55.)
     \19\Meyers AR. ``Lumping it'': the hidden denominator of the 
     medical malpractice crisis. Am J Public Health 1987; 77:1544-
     8.
     \20\Doherty EG, Haven CO. Medical malpractice and negligence: 
     sociodemographic characteristics of claimants and 
     nonclaimants. JAMA 1977; 238:1656-8.
     \21\Brook RH, Brutoco RL, Williams KN. The relationship 
     between medical malpractice and quality of care. Duke Law J 
     1975; 1975:1197-231.
     \22\Office of Technology Assessment. The quality of medical 
     care: information for consumers. Washington, D.C.: Government 
     Printing Office, 1988:121-41. (SUDOC no. Y3.T22/2:2 M46/12.)
     \23\Sloan FA, Mergenhagen PM, Burfield WB, Bovbjerg RR, 
     Hassan M. Medical malpractice experience of physicians: 
     predictable or haphazard? JAMA 1989; 262: 3291-7.
     \24\Bennett WI. Pluses of malpractice suits. New York Times 
     Magazine. July 24, 1988:31-2.
     \25\Gustafson DH, Shukla R, Delbecq A, Walster G. A 
     comparative study of differences in subjective likelihood 
     estimates made by individuals, interacting groups, Delphi 
     groups, and nominal groups. Organ Behav Hum Performance 1973; 
     9:280-91.
     \26\Rubenstein LV, Kahn KL, Reinish EJ, et al. Changes in the 
     quality of care for five diseases measured by implicit 
     review, 1981 to 1986. JAMA 1990; 264:1974-9.
     \27\Gaumer GL. Regulating health professionals: a review of 
     the empirical literature. Milbank Mem Fund Q 1984; 62:380-
     416.
     \28\Kusserow RP, Handley EA, Yessian MR. An overview of state 
     medical discipline. JAMA 1987; 257:820-4.
     \29\Miller FH. Medical malpractice litigation: do the British 
     have a better remedy? Am J Law Med 1986; 11:433-63.
                                                                    ____

                [From the New York Times, Mar. 5, 1995]

      New York's Public Hospitals Fail, and Babies Are the Victims

                   (By Dean Baquet and Jane Fritsch)

       Each year for the last decade, dozens of newborn babies 
     have died or been left to struggle with brain damage or other 
     lifelong injuries because of mistakes made by inexperienced 
     doctors and poorly supervised midwives and nurses in the 
     teeming delivery rooms of New York City's public hospitals.
       Some of the most prestigious medical schools and private 
     hospitals are paid by the city to provide the care in its 
     sprawling hospital system. But an examination by The New York 
     Times shows that many of these private institutions have left 
     life-and-death decisions to overworked nurses and trainee 
     doctors who are ill prepared to make them.
       The effects can be seen across the system, from the 
     surgical suites to the clinics. But nowhere are the 
     consequences more devastating than in the delivery rooms, 
     where the course of a young life can be changed forever by a 
     few minutes' delay, a malfunctioning monitor or a lapse of 
     attention.
       The delivery room disasters affect a broad spectrum of 
     women, from those who do not visit a doctor until their labor 
     pains begin to the healthiest and most conscientious of 
     mothers-to-be.
       Vilma Martinez, a 25-year-old Brooklyn factory worker, 
     languished in the delivery room of Woodhull Medical and 
     Mental Health Center in Brooklyn for 14 hours in July 1993, 
     as nurses first struggled to deliver her baby, then 
     desperately searched for a doctor. The baby's father watched 
     in horror as a monitor showed the baby's heartbeat fade, then 
     stop. In the end, no doctor came. The baby was stillborn.
       Miriam Miranda, 35, was diabetic and H.I.V.-positive when 
     she entered North Central Bronx Hospital in February 1994 to 
     deliver here baby. Her problems would have tested the skills 
     of the most experienced doctor, but a midwife was put in 
     charge. When complications arose, the midwife struggled on by 
     herself. Deprived of oxygen during labor, the baby died after 
     77 days. In internal documents, the hospital has conceded 
     that the delivery should have been handled by a doctor.
       These cases are more than the isolated tragedies that can 
     occur in any hospital. Serious injuries to newborns are 
     frequent in the delivery rooms of some of New York City's 
     public hospitals. And delivery room crises have flared 
     periodically in most of the public hospitals over the last 
     decade.
       It is not possible to say precisely how many of the 31,000 
     deliveries each year are mishandled. Most records detailing 
     medical mistakes are kept secret, even from the parents of 
     the children involved.
       But a computer analysis by The Times showed that the death 
     rate for babies of normal weight born at the public hospitals 
     was substantially higher than the rate at private hospitals 
     in New York City. For babies weighing more than 5.5 pounds, 
     the cutoff doctors use as a gauge of general good health, the 
     death rate in the first four weeks after birth at the public 
     hospitals was 80 percent higher than that for babies born at 
     private hospitals: For every 1,000 births of normal-weight 
     babies at a private hospital, there was one death, while at 
     the public hospitals, there were 1.8.
       The public hospital also had higher rates in most 
     categories of serious birth injuries, the study showed. And 
     the rates were higher even after taking into account the 
     differences in the health of mothers at the private and 
     public hospitals. The Time analyzed city and state records of 
     all births in the city in 1993, the latest year available.
       Some hospital and city officials have known about the 
     problems for years, and have worked mightily to keep them 
     from the public. They fear a loss of public confidence and a 
     flood of lawsuits.''
       In a striking 1992 report, never made public, City 
     Comptroller Elizabeth Holtzman analyzed the lawsuits of 64 
     children who had been left brain-damaged or permanently 
     crippled because of negligence in the delivery rooms. Some of 
     the suits were more than a decade old, and all had been 
     settled in the previous three years.
       Those lawsuits alone cost the city $78 million, the report 
     said, and another 793 were pending.
       ``These cases are catastrophic and costly,'' the report 
     said. ``Many of these infants are now grown children, 
     suffering from multiple and severe disabilities, who require 
     lifetime hospitalization or intensive home care.''
       In a third of the deliveries, no senior physician was 
     present, even though complications were evident before the 
     deliveries began, the report said.
       The New York City Health and Hospitals Corporation, the 
     agency that runs the public hospitals, is the nation's 
     biggest urban hospital system. Its network of 11 hospitals, 
     76 clinics and 5 chronic care centers is used by one in five 
     New Yorkers. One quarter of the 130,000 babies born in the 
     city are delivered in public hospitals.
       With 50,000 employees and a $3.8 billion budget, the 
     hospital corporation is a major economic force in some of the 
     poorest communities. It has stood for decades as a testament 
     that New York, more than any American city, is committed to 
     equal health care for all.
       But in recent years, events have converged to raise 
     questions about the system's survival. It faces increasing 
     competition from private hospitals, internal problems and a 
     governor and mayor who believe that New York can no longer 
     afford its expensive array of social services.
       In a six-month examination of the agency, The Times 
     reviewed confidential hospital documents, court filings and 
     other public records, and interviewed more than 100 
     physicians, administrators and city officials. Four current 
     and former high-level officials of the hospital agency 
     confirmed that delivery room problems are grave and have 
     plagued the system for years.
       Efforts to resolve the crisis over the last decade have 
     been halting and ineffective, even though a quarter of the 
     babies born in New York are delivered at public hospitals, 
     and obstetrics is a major portion of the hospitals' business.
       [[Page S5772]] Dr. Bruce Siegel, who became president of 
     the hospital agency a year ago, said in a recent interview 
     that he had not seen a pattern of problems in delivery rooms, 
     but acknowledged that in some hospitals, young doctors are 
     poorly supervised.
       ``I would certainly not be surprised that we had more 
     adverse outcomes'' than in private hospitals, he said, 
     ``figuring that we treat poor people, sick people, that the 
     concentration of people have drug problems, low socioeconomic 
     status, various infectious diseases and many other things is 
     going to be clustered in our hospitals.''
       The computer analysis by The Times showed that over all, 
     women who deliver babies in public hospitals are at higher 
     risk for problems than women who use private hospitals, 
     though a vast majority are healthy and get prenatal care. But 
     it also showed that the difference in the women's own risk 
     factors was not large enough to explain the higher rates of 
     newborn deaths and injuries at public hospitals.
       Dr. Siegel said the data used in the analysis were not 
     reliable because the public hospitals did not accurately 
     report risk factors to the state. The Times analysis found 
     little evidence, however, that underreporting was greater at 
     public hospitals than at private ones.
       New York City has run public hospitals for more than a 
     century, but the system was reorganized three decades ago in 
     an ambitious attempt to raise the quality of medical care for 
     the poor to the standards of the best private hospitals. To 
     shore up the public hospitals, each was paired with a private 
     hospital or medical school that was paid by the city to 
     provide doctors and oversee care.
       Last year, the city paid more than $500 million to such 
     prestigious institutions as the Albert Einstein College of 
     Medicine, Mount Sinai Medical Center, Montefiore Medical 
     Center and the Columbia University College of Physicians and 
     Surgeons.
       But a review of current and historic documents shows that 
     the plan never lived up to expectations.
       Nearly 30 years later, there are still two classes of 
     medical care in New York City: one for people who can afford 
     private doctors and hospitals, and another for those who must 
     rely on the public hospitals.
       In private hospitals, women are met by their own doctors, 
     who oversee their labor and deliveries. But in public 
     hospitals, babies are delivered by whomever is on duty, and a 
     woman may never see a doctor.
       Officials of the private institutions that provide care in 
     the public hospitals acknowledge that many delivery rooms are 
     understaffed, and that midwives and trainees have sometimes 
     been given more responsibility than they can handle. But they 
     contend that the city has not given them money to provide 
     enough experienced doctors to handle every shift adequately 
     in overcrowded hospitals.


                  without a doctor, a tiny beat fades

       Vilma Martinez remembers the time, 10:04 P.M., and the 
     silence and, most particularly, the wordless message of the 
     nurse, who drew a finger across her throat as if she were 
     slashing it with a knife. The meaning was clear: The baby was 
     dead.
       After that, she remembers little. But she can return to the 
     morning of the day, when the labor pains started, and recall 
     with some precision the 14 hours that led up to the 
     stillbirth of her only child. It was a boy--6 pounds 13 
     ounces--and his heart had been beating steadily and strongly 
     when she entered Woodhull Medical and Mental Health Center at 
     8 A.M. on July 23, 1993.
       Officials of the hospital will not discuss what happened to 
     Ms. Martinez or explain why no doctor came to her aid. Ms. 
     Martinez and her boyfriend, Tomas C. Abreu, the baby's 
     father, have filed a lawsuit against Woodhull and the New 
     York City Health and Hospitals Corporation. They, too, 
     declined to discuss the case, but their recollections are 
     recorded in court depositions that provide searing accounts 
     of a day of joy that dissolved into worry, then panic, the 
     despair.
       Their version of what happened is supported in large part 
     by the notes of the nurses who tried, with increasing 
     desperation, to find a doctor, and when they could not, tried 
     to deliver the baby themselves.
       Ms. Martinez, an emigrant from the Dominican Republic, was 
     23 when she learned in December 1992 that she was pregnant. 
     She and Mr. Abreu, who was also from the Dominican Republic, 
     had minimum-wage jobs at a glass and mirror company and had 
     been living together for about two years in the East New York 
     section of Brooklyn.
       Her health was good and her pregnancy was uncomplicated. 
     She took her vitamins conscientiously and went to Woodhull 
     for monthly, and later weekly, checkups.
       So there was no cause for concern when the labor pains 
     began about 7 A.M. on that Friday morning in July. By 7:45 
     A.M. she was in the car with Mr. Abreu and her mother, and by 
     8 A.M., they had arrived at Woodhull, the strikingly modern 
     medical complex that rises above the warehouses, storefronts 
     and working-class homes of Greenpoint and Williamsburg.
       After an hour, a nurse on the seventh floor, the maternity 
     floor, motioned for her to climb on a gurney.
       Because Ms. Martinez understood little English and the 
     nurses and midwives spoke no Spanish, their communication was 
     limited to gestures and facial expressions. It went that way 
     the entire day. Forty percent of the people in the area 
     around Woodhull speak primarily Spanish, but no one on the 
     staff translated for Ms. Martinez.
       Eventually, she was put in a little room where she spent 
     the long day. About noon, a nurse inserted an intravenous 
     line in her arm. The contractions gathered strength as a 
     monitor kept track of the baby's heartbeat, and her mother 
     and Mr. Abreu hovered near the bed.
       About 5 P.M. she began bleeding heavily and it seemed to go 
     on and on ``like a blood bath,'' she recalled.
       Near 7:30 P.M., she was screaming from pain, and someone 
     who seemed to be a doctor went to the door of the room. He 
     spoke to the nurses, but left almost immediately. ``He didn't 
     even touch me or anything,'' she recalled.
       A nurse's note at 7:40 P.M. described another sign of 
     trouble--``prolonged decelerations'' in the fetal heart rate. 
     The rate often drops during contractions, but should rise 
     again. Prolonged drops can mean the baby is not getting 
     enough oxygen.
       So the nurse called for the doctor and the midwife, 
     according to the log. The doctor examined Ms. Martinez and 
     gave instructions that she should not push, the log said. 
     Neither Ms. Martinez nor Mr. Abreu recalled the doctor's 
     actually having examined her. The nurse's notes do not 
     explain why the doctor left.
       Soon, the baby's head was visible and the nurse and the 
     midwife shooed Ms. Martinez's mother out of the room.
       They began struggling to get the baby out, Ms. Martinez 
     said, turning her this way and that, even face down for a 
     while. They tried turning the baby's head, too, but nothing 
     seemed to work. The baby was stuck. She recalls being 
     ``crazy, desperate with pain.''

                           *   *   *   *   *

       The final two hours were the most harrowing, the couple 
     said. They were left mostly alone in the room, with no idea 
     where the nurses had gone, as the heart monitor bleeped, 
     spewing yards of paper that recorded the baby's struggle for 
     life.
       Mr. Abreu recalled watching the glow of the monitor and the 
     tiny heart-shaped light, ``like a little heart that seemed to 
     be beating.'' He kept up a constant patter to reassure her, 
     but she kept asking for a doctor. ``She was saying, `I am 
     going to die.'''
       Mr. Abreu left the room in search of a doctor, and was told 
     that the doctors on duty were on the eighth floor performing 
     a Caesarean section. He returned to the room and stood vigil. 
     Then he noticed that the baby's heartbeat was slowing 
     markedly. Ms. Martinez recalled that he left the room again, 
     ``just desperate.'' And she remembered hearing him ask--beg--
     for a doctor.
       But all he could find was a nurse, so he took her back to 
     show her the monitor. ``I was also looking at the heart, at 
     the little heart,'' he said. ``It had stopped.''
       An entry in the nurse's log at 9:20 P.M. notes 
     ``continuous'' fetal heart rate decelerations. At that point, 
     the midwife ``said to call in an M.D.,'' according to the 
     log. But two doctors were busy doing a Caesarean section and 
     a third was occupied in the emergency room, the log said.
       ``We cannot get an M.D. to see the patient,'' the nurse 
     wrote.
       To Ms. Martinez, the midwife seemed desperate. ``She didn't 
     even put on her gloves in order to grab the child,'' Ms. 
     Martinez said. The midwife shouted for her to push and 
     someone pressed on her abdomen. They got the baby out, and 
     started slapping and pounding, but he did not draw a breath 
     or make a sound.
       Finally, a doctor entered the room. The midwife turned to 
     him, and silently drew a finger across her neck.
       ``I started to scream and scream,'' Ms. Martinez said. ``A 
     mother, while she is giving birth, how can she feel when that 
     is happening? I was desperate.''
       Others came, and as the doctors and nurses whispered among 
     themselves, Mr. Abreu asked them to explain what had 
     happened. ``But they wouldn't tell me a thing,'' he said. 
     ``All they were saying was that the baby was dead.''
                    Disaster Reports Are Suppressed

       Delivery room disasters became frequent a decade ago, when 
     a wave of new immigrants began crowding into aging hospitals, 
     increasing pressure on medical staffs already overburdened.
       As deliveries rose more than 30 percent in the 1980's, even 
     the most diligent staffs were overwhelmed. The overflow fell 
     to nurses, midwives and residents, doctors in their first 
     years after medical school.
       Then, at some busy obstetrics wards, including Lincoln 
     Medical and Mental Health Center in the South Bronx and North 
     Central Bronx Hospital, the residents were pulled out. Their 
     training programs had been shut down because the national 
     officials who accredited them feared that the public 
     hospitals were tossing young medical school graduates in over 
     their heads.
       The effects of the crowding and staff shortages were felt 
     immediately.

                           *   *   *   *   *

       For example, Dr. Wayne Cohen, who in 1984 ran North Central 
     Bronx Hospital's obstetrics department, recalled that a 
     number of newborns were injured as the hospital became more 
     reliant on nurse-midwives, who were not trained for the 
     frenetic pace and difficult deliveries. A typical big-city 
     hospital might have five or six serious birth injuries a 
     year, he said. But, at North Central 
     [[Page S5773]] Bronx, he said, ``There were twice that number 
     of everything, and I didn't get to hear of everything.''
       At Metropolitan Hospital Center, in East Harlem, officials 
     called in the police in the late 1980's because several 
     newborns mysteriously suffered broken arms or legs. Police 
     officials say they never determined the cause, or or when the 
     babies were injured.
       About that time, officials of the hospitals corporation 
     grew so alarmed after some serious incidents at Lincoln that 
     they complained to New York Medical College, which provides 
     the medical care at Lincoln.
       But in a vast system that bounces from crisis to crisis, 
     from budget shortfalls to political scandals, officials of 
     the Health and Hospitals Corporation were unable to put 
     together all of the pieces to perceive what was rapidly 
     becoming a systemwide crisis.
       In 1983, alarmed by a rise in malpractice awards, analysis 
     for the city's Office of Management and Budget began a far-
     reaching, confidential study. After poring over 2,000 
     lawsuits, they found a disturbing patter: Many of the worst 
     cases involved residents in the delivery rooms and elsewhere 
     who nervously bumbled through with little guidance from 
     senior doctors.
       The 165-page report, completed in 1991 was ignored. Its 
     authors said the patterns had continued, but by the time the 
     study was printed and bound, lawyers for the city said it was 
     based on old information.
       A year later, Ms. Holtzman, the City Comptroller, finished 
     her report. ``The enormous cost of impaired newborn cases in 
     both human suffering and taxpayer dollars requires the City's 
     attention,'' it said.
       Among its findings were these: In 12 of the 64 cases 
     reviewed, the staff failed to react promptly to signs of 
     fetal distress; in 5, the staff failed to perform adequate 
     fetal monitoring; in 9, the staff ``unreasonably delayed'' 
     Caesarean sections; in 11, oxytocin, a drug used to induce 
     labor, was improperly administered.
       As Ms. Holtzman prepared to make her report public, the 
     hospitals corporation blocked its release, arguing that it 
     was based on privileged information.
       Alan G. Hevesi, her successor, said he was unaware of the 
     report until The Times requested it. He released a copy, 
     saying that it was too important to remain secret.
       Delivery room disasters had become a recurring theme in 
     confidential weekly meetings held by the hospital agency to 
     analyze its most mishandled cases. In these discussions, 
     known as quality assurance meetings, officials speak bluntly, 
     naming doctors and upbraiding administrators with the 
     understanding that by state law, none of what they say leaves 
     the room.
       Most delivery rooms in the system have come up for sharp 
     criticism at these sessions, usually because of mistakes by 
     unsupervised trainee-doctors and midwives, said four 
     participants in the weekly meetings, who spoke on the 
     condition that they not be identified. Over the last five 
     years, the delivery rooms of four hospitals have been cited 
     more frequently than the others, said the participants. These 
     hospitals are Woodhull, Kings County Hospital Center in 
     Brooklyn, North Central Bronx and Lincoln.
       Over the same five years, the State Health Department, 
     which regulates hospitals, has rebuked the four hospitals and 
     Coney Island Hospital in Brooklyn for delivery room mistakes, 
     state records show.
       Regulators found instances in which overworked staffs, 
     including residents, misdiagnosed serious conditions and made 
     patients wait perilously long for treatment.
       In interviews, officials of most of the hospitals 
     acknowledged delivery room problems, but said that they had 
     made significant improvements in recent years.
       At Woodhull, for example, officials said the director of 
     obstetrics was forced out late last year after a series of 
     mistakes by the staff in the delivery room.
       ``I'm not going to make any apologies for Woodhull,'' said 
     Dr. Siegel, the head of the hospitals agency, who added that 
     he was replacing the private corporation that runs Woodhull, 
     Woodhull Medical Associates. He said that many of the 
     hospital's patients were going elsewhere because of 
     Woodhull's reputation for poor care.
       ``That obstetrics department is closing down on its own,'' 
     Dr. Siegel said.
       At Lincoln Hospital, officials said they were working on 
     their problems, which they said were caused by poor 
     supervision of residents and unreasonable waiting times for 
     women seeking prenatal care. ``We were asking for trouble,'' 
     said Roberto Rodriguez, the executive director. ``We were 
     taking a risk.''
       Jean Leon, the executive director of Kings County Hospital, 
     said she has seen no delivery room problems since she arrived 
     in July, 1994.
       Howard Cohen, the director of Coney Island Hospital, said 
     any problems at his hospital were caused by the press of 
     high-risk patients.
       Officials at North Central Bronx said their problems 
     resulted from poor supervision and understaffing.


                     life or death without a doctor

       By the time Michael Elias Cottes was born on Feb. 11, 1994, 
     his left shoulder and arm were broken. He was so hopelessly 
     stuck after 20 hours of labor that the obstetrician cracked 
     his tiny bones trying to wrest him free.
       Still, his birth was a moment of triumph for his mother, 
     Miriam Miranda. She had come to terms with her having the 
     AIDS virus, and had sought out prenatal care with something 
     approaching zeal. At 35, she had beaten back gestational 
     diabetes and even learned to give herself insulin injections.
       So, when the doctor at North Central Bronx Hospital finally 
     extracted the silent child and rushed him out of the delivery 
     room, Ms. Miranda allowed herself to rejoice, savoring the 
     minutes as she waited for the doctor to bring her baby back. 
     ``I was so happy,'' she recalled in an interview.
       But the doctor returned alone and in tears ``Miranda,'' she 
     said, ``we did what we could. The baby was without oxygen for 
     10 minutes.''
       Michael lived for 77 days, probably deaf and blind.
       Throughout the torturous hours of labor, Ms. Miranda had 
     been in such pain that she was only vaguely aware of the 
     drama unfolding around here. She did not know that the 
     midwife had seen signs of serious trouble on a monitor. And 
     she did not know that by the time the doctor arrived, it was 
     already too late to do much for the baby.
       Last March, officials of North Central Bronx held a private 
     meeting and admitted among themselves that the hospital had 
     made some mistakes in her case. Specifically, they 
     acknowledged, such a complex delivery should have been 
     handled by a doctor from the start, according to an internal 
     report obtained by The Times.
       From the time of her first prenatal visit at North Central 
     Bronx, Ms. Miranda was seen almost exclusively by midwives. 
     They did the pelvic exams, weighed and measured her and drew 
     blood for routine tests. ``They told me it was a boy,'' she 
     said in a recent interview, ``a boy who was doing good.''
       As soon as she learned she was pregnant, Ms. Miranda did 
     everything she could think of to have a healthy baby. She 
     quit a steady job as a cafeteria worker in Puerto Rico, and 
     with her two children moved to New York City, where, she 
     believed, she would get the best possible care.
       ``She wanted to have this baby,'' said Tracy Stockham, the 
     state case worker who helped Ms. Miranda navigate the complex 
     bureaucracy of services for H.I.V. positive women. ``She 
     said, `This will be my last child because I'm infected.'''
       In her seventh month, when a test showed that she had 
     developed diabetes, her midwife said that she lacked the 
     expertise to continue with the case. But instead of turning 
     Ms. Miranda over to an obstetrician, the midwife referred her 
     to another midwife.
       Still, Ms. Miranda did well. At 10 A.M. on Feb. 10, 1994, 
     at the end of her 40th week, she entered the warren of small 
     labor and delivery rooms on the hospital's seventh floor, 
     where a midwife administered Pitocin, a powerful drug that 
     induces labor.
       By 3 A.M. the next day, 17 hours later, the baby was still 
     not out: According to hospital records, the fetal monitor, 
     which keeps track of the baby's heartbeat, showed 
     irregularities.
       This meant one of two things: Either the baby was not 
     getting enough oxygen through the umbilical cord, or the 
     monitor was not giving an accurate reading, a common 
     occurrence.
       So the midwife faced life-and-death choices. She could 
     prick the baby's scalp with an electrode to check its blood 
     for oxygen, possibly exposing him to the AIDS virus. She 
     could let the labor take its course and hope that all was 
     well. Or, she could summon a doctor to perform an emergency 
     Caesarean section.
       There is no explanation in the hospital records for why a 
     doctor did not intervene earlier.
       She recalled that he cried only once during the final two 
     weeks of his life. As it turned out, he was not infected with 
     H.I.V.
       Once, she bundled him up and proudly brought him to visit 
     Ms. Stockham, the caseworker who had sent her to North 
     Central Bronx.
       ``The baby was constantly gasping for air,'' Ms. Stockham 
     recalled. ``Miriam said: `People are saying Michael can't see 
     or hear. But when I sing to him, he turns to me.'
       ``I had to look inside myself,'' Ms. Stockham said, ``and 
     say, `Did I do the right thing by sending her to this 
     hospital?'''


                    young trainees left unsupervised

       Young doctors just out of medical school are the backbone 
     of New York's public hospitals. There are more than 3,500 of 
     these trainees, or residents, working in the system to get 
     experience and learn specialties.
       Because the system depends so heavily on them, it is 
     crucial that the hospitals attract top graduates. A need to 
     improve the quality of residents was one reason the city 
     entered into its partnership with New York's most renowned 
     private medical institutions 30 years ago. The theory was 
     that the private hospitals could use their reputations to 
     attract the best medical school graduates, then rotate them 
     through the public system.
       But for a variety of reasons, some of these private 
     institutions have set up separate residency programs for the 
     city hospitals, which have generally attracted graduates with 
     poorer qualifications.
       Virtually all the residents working at Presbyterian are 
     graduates of medical schools in the United States, including 
     some of the most prestigious in the country. But only 34 
     percent of the residents working at Harlem graduated from 
     schools in this country. The rest were trained at foreign 
     schools, many in developing nations.
       [[Page S5774]] Foreign medical school graduates, especially 
     those from developing countries, are generally less desirable 
     to hospitals because they may be unfamiliar with the newest 
     technology and treatments, hospital corporation officials 
     say. Dr. J. Emilio Carrillo, who was president of the 
     corporation from 1990 to 1991, said he frequently complained 
     that some training programs had far too many students 
     educated overseas.
       Columbia officials said that Harlem Hospital decided 
     decades ago to have its own residency program in order to 
     attract black graduates who might one day practice in the 
     neighborhood. Dr. Edward B. Healton, associate dean of 
     Columbia and medical director of Harlem Hospital, said that 
     the Harlem program was not as popular as Columbia's, and had 
     difficulty attracting graduates of United States medical 
     schools.
       Mount Sinai School of Medicine runs three hospitals, one 
     private and two public. Most of its residents rotate through 
     all three. But in some specialties, there are separate 
     residency programs at each hospital. In these fields, more 
     than 95 percent of the residents working at Mount Sinai are 
     graduates of medical schools in the United States. But that 
     is true of only half the residents at the city-owned Queens 
     Hospital Center. And only 68 percent of the residents in the 
     program set up separately for Elmhurst Hospital Center in 
     Queens graduated from schools in this country.
       Under their city contracts, the private hospitals are also 
     supposed to supply attending physicians, the senior doctors 
     who supervise residents. But virtually every study has 
     accused the private hospitals of leaving residents largely 
     unsupervised.
       The hospital most frequently cited for leaving care to 
     residents is Kings County Hospital Center, one of the 
     nation's busiest and biggest.
       In November 1991, the State Health Department concluded in 
     a scathing report that there was ``inadequate, and in some 
     cases nonexistent'' supervision.
       A month later, on Dec. 23, Roxane Murray, a healthy 24-
     year-old who had just received an honorable discharge from 
     her Army Reserve unit, entered Kings County to deliver her 
     second child. By Christmas Eve, Ms. Murray was in a coma, and 
     17 days later, she was dead.
       Her medical records relate a chaotic 27 hours, during which 
     much of her care was provided by residents. The chain of 
     events that led to her death began when a fetal monitor 
     malfunctioned, making it impossible to determine the baby's 
     condition. So a decision was made to do a Caesarean section, 
     and a first-year resident in obstetrics was allowed to 
     perform the operation. In the recovery room, a first-year 
     resident in anesthesiology supervised Ms. Murray's care.
       She hemorrhaged for at least one hour before the attending 
     physician, the senior doctor on duty, checked on her and then 
     left. Because Ms. Murray continued to hemorrhage, the 
     residents ordered intravenous prostaglandin, the drug of 
     choice to stop the bleeding, but the hospital pharmacy did 
     not have any. So they tried a prostaglandin suppository, a 
     less effective treatment.
       Later, as Ms. Murray lapsed into unconsciousness, the 
     attending physician and the chief resident performed a 
     hysterectomy to control the bleeding. It didn't work.
       Several hours passed and senior doctors in the obstetrics 
     department did exploratory surgery. They found four liters of 
     blood in her abdomen and quickly tried to tie off an artery 
     that was gushing, but accidentally sliced through a nearby 
     vein. She never regained consciousness. The baby, an 8-pound 
     14-ounce boy, and his brother are being reared by Ms. 
     Murray's mother.
       State regulators, called in by the family's lawyer, Michael 
     V. Kaplen, excoriated the hospital for ``ineffective, 
     inappropriate treatment.'' At no point did any doctor or 
     resident call in an expert in hematology, who might have got 
     the bleeding under control, the regulators said.
       In addition to residents, there is a little-known class of 
     trainee doctors working in New York hospitals. They are house 
     doctors, medical school graduates who have either failed or 
     not yet taken licensing examinations.
       Hospitals turn to them when they have trouble attracting 
     fully qualified doctors, or cannot fill night and weekend 
     shifts. The graduate is granted a two-year ``limited permit'' 
     by the state to practice only in one hospital under close 
     supervision.
       Dr. Siegel, the head of the hospital agency, said he was 
     not happy with the use of house doctors and was moving to 
     phase them out.
       Until last December, shortly before his limited permit 
     expired, Narpat S. Panwar was one of them. A native of India 
     and a graduate of the University of Guadalajara Medical 
     School in Mexico, Dr. Panwar had been trying unsuccessfully 
     to pass the national examinations for 14 years when he was 
     hired by Woodhull hospital in 1993 to work as an 
     obstetrician.
       Dr. Panwar was on duty over the Fourth of July weekend in 
     1993 when Paula Toala arrived to deliver her baby. He saw her 
     through an extremely difficult 10-hour labor.
       Eventually, he got the baby out, but only then found what 
     the trouble had been: The infant, whose mother was average 
     size, weighed an extraordinary 13 pounds.
       Dr. Panwar had twisted and stretched the neck and shoulders 
     severely enough to cause nerve damage, the family's lawyer, 
     Jesse S. Waldinger, said in papers filed in a malpractice 
     suit. The child suffers from Erb's palsy, a nerve injury that 
     has limited movement in her right arm, he said.
       ``This is a case that was screaming for a Caesarean 
     section,'' Mr. Waldinger said. In the court papers, he argued 
     that Dr. Panwar should have called for assistance.
       Dr. Panwar, 51, is now practicing in West Virginia and has 
     obtained a full license after passing his examinations. He 
     declined to discuss the case. The city is fighting it.


                   bronx municipal takes giant steps

       Bronx Municipal Hospital Center, a sprawling complex that 
     has served the east Bronx for 40 years, is one public 
     hospital that has made significant progress toward solving 
     its delivery room problems.
       Hospital officials have acknowledged that through the 
     1980's newborns were injured there because of mistakes by 
     unsupervised residents working in an overcrowded maternity 
     ward.
       In June 1992, jolted by major lawsuits, the hospital pushed 
     the Albert Einstein College of Medicine, which oversees care 
     at Bronx Municipal, to revamp the delivery room.
       Midwives were instructed to call for help at the first sign 
     of trouble, and residents were told not to perform Caesarean 
     sections without a senior doctor in the room. One nurse was 
     specifically assigned to spot the problem cases and try to 
     make sure that a similar mistake did not occur again.
       ``The city was spending so much money defending obstetrics 
     suits, they just made a decision that it would be cheaper to 
     hire people who knew what they were doing,'' said Dr. Wayne 
     Cohen, the medical director of Bronx Municipal Hospital.
       The drop in delivery injuries to mothers and infants was 
     swift. The program cost about $750,000.
       In 1993, the change was noticed at the hospital agency's 
     headquarters, where Edna Wells Handy, the general counsel, 
     said she had already concluded that injuries to newborns were 
     among the worst problems facing a troubled system.
       Ms. Handy said she asked the city for $1.5 million in 1993 
     to expand the Bronx Municipal program to two other hospitals 
     struggling with delivery room problems. But by the time the 
     proposal made its way through the bureaucracy, there was a 
     new mayor and a new administration at the hospital 
     corporation with little knowledge of the delivery room crisis 
     or her proposal.
       ``If it really works, I'll do it,'' Dr. Siegel said in an 
     interview Feb. 15. ``I'm disturbed that I hadn't heard about 
     it before.''
  Mr. SPECTER. I thank the Chair. I yield the floor.
  Mr. DOLE addressed the Chair.
  The PRESIDING OFFICER (Mr. Kyl). The majority leader.
  Mr. DOLE. Mr. President, thank you.
  (The remarks of Mr. Dole pertaining to the introduction of 
legislation are located in today's Record under ``Statements on 
Introduced Bills and Joint Resolutions.'')
                 Amendment No. 604 to Amendment No. 603

  Mr. LIEBERMAN. Mr. President, what is the pending business?
  The PRESIDING OFFICER. The pending business is the Thomas amendment, 
amendment No. 604.
  (Mr. McCONNELL assumed the Chair.)
  Mr. LIEBERMAN. I thank the Chair.
  Mr. President, I rise to speak first on the underlying bill, S. 565, 
and then to take the opportunity to say a few words on behalf of the 
underlying amendment offered by the distinguished occupant of the 
chair, the Senator from Kentucky [Mr. McConnell], of which I am proud 
to be a cosponsor.
  Mr. President, I want to first discuss the Product Liability Fairness 
Act of 1995 and particularly congratulate Senators Gorton and 
Rockefeller for producing a product liability bill that really has 
garnered broad bipartisan support. I am hopeful, finally, after all 
these years of effort, that this bill will, in fact, not only be a good 
bill but will become a very good law.
  Thanks are also due to Senator Pressler and others on the Commerce 
Committee for enabling us to take this bill up so early in this 
session, all of us having seen similar bills supported by a majority of 
Members of the Senate nonetheless go down to defeat because of gridlock 
caused by a clock that was running out.
  Mr. President, this debate is now a few days old. Perhaps what has 
surprised me most in the debate are those arguments that have been made 
on behalf of the status quo in our civil justice system. There is 
certainly room for disagreement about how best to make our civil 
justice system fairer and more rational, but, frankly, it is hard for 
me to understand how anyone can say that our current system does not 
need substantial reform. It is inefficient, unpredictable, costly, 
slow, and unfair. Its lottery-like nature costs everyone too much--
plaintiffs, defendants, manufacturers, product sellers, and consumers.
  [[Page S5775]] Mr. President, in my view, you can add the civil 
justice system to the list of fundamental institutions in our country 
that are broken and in need of repair. For me, repair begins with 
remembering what may be lost in the debate and the reality of the 
system today, which is that the purpose of the system is first to 
compensate people who are injured as a result of someone else's 
negligence; that compensation is at the heart of the system. And, 
second, and in doing so, to deter future negligence by that or other 
parties.
  In our time, unfortunately, the civil justice system has too often 
become a game of legalistic sophistry, of bullying, of bluffing, a game 
which overcompensates lawyers, undercompensates victims, particularly 
seriously injured victims, and costs all the rest of us an awful lot of 
money in higher prices for consumer products, for health care, higher 
premiums for insurance, fewer jobs, and fewer new products to improve 
and protect our lives.
  And, of course, all of that, in sum, contributes to the cynicism and 
mistrust of our legal system felt by average Americans, no matter what 
the participants in the system feel about it, and that cynicism and 
mistrust is profoundly corrosive and ultimately may be the most 
significant cost of our civil justice system in America today.
  Mr. President, opponents of this bill like to cast the debate in 
either/or terms--either you are pro-business or pro-consumer; either 
you are pro-innovation or pro-safety.
  But I respectfully suggest that sort of rhetoric misses the point and 
prevents us from discussing this issue in a fair and rational manner. 
The fact is that this bill, the underlying bill, S. 565, is both pro-
business and pro-consumer, pro-innovation and pro-safety.
  It is aimed at putting liability back where it should be, on the 
parties who are actually responsible for any harm caused to an 
individual, and so best able to prevent that injury and compensate the 
victim.
   Mr. President, I did not always support a national or Federal 
approach to product liability reform or tort reform generally, and I 
can understand the hesitancy, particularly of some of the Members, to 
support Federal involvement in what traditionally has been a province 
of the States.
  In fact, in my previous public incarnation as attorney general of 
Connecticut, and a member of the National Association of Attorneys 
General, I had some real skepticism about some of the earlier Federal 
product liability legislation. It would have swept away virtually all 
State product liability laws and repealed the doctrine of strict 
liability for product defects.
  This bill is not that extreme, but what changed my mind was listening 
to people in Connecticut. As I traveled the State, I kept finding that 
product liability laws were being raised as a major concern of business 
men and women from small and large manufacturing companies who were 
trying to make a living, who were trying to create jobs. They told me 
of problems they experienced with the product liability system, and of 
the expense of defending themselves, even when they win. They told me 
of the costs of settlement to avoid paying litigation costs--not 
because there was real negligence--and of the time and energy that 
product liability suits diverted away from the business of designing 
new products and bringing them to market.
  So I listened to those folks, and I came to understand the necessity 
of Federal action and, of course, to understand the reality and 
appreciate the reality that we are one country; that products travel 
from State to State; that people using them travel from State to State; 
and that there is a crying need out there in the interest of every 
State and our country, our economy, the equity of our society, to build 
a floor of fairness, a common system that will protect the rights of 
all.
  Mr. President, the debate really should center around users and 
consumers, because ultimately it is the consumers who suffer most from 
the status quo. Consumers are the ones who do have to pay the higher 
prices in order to cover product liability-related costs. If a ladder 
costs 20 percent more because of liability-related costs, it is 
consumers, not the businesses, who end up paying the 20 percent 
premiums.
  Consumers are the ones who suffer when valuable innovations do not 
occur or when needed products, like life-saving medical devices, do not 
come to market or are not available in our country any longer because 
no one will supply the necessary raw materials. The inadequacies and 
excesses of our product liability system are quite literally matters of 
life and death for some people whose lives depend on medical devices 
that may no longer be available in the United States.
  This is not a theoretical problem. Life-saving and life enhancing 
products are at risk today--now--and doctors and patients are 
justifiably worried because raw material suppliers have stopped selling 
their materials to medical device manufacturers.
  I am very proud to say that included in the underlying bill, S. 565, 
is a bill that I was privileged to introduce last year and again this 
year with my friend and colleague from Arizona, Senator McCain, the 
Biomaterials Access Assurance Act of 1995, which is intended to address 
this emerging crisis in the medical device sector of our economy, which 
is a lifesaving sector. I know there will be amendments addressed to 
that section of this bill, and I look forward to speaking in more 
detail at that time.
  Mr. President, even for its intended beneficiaries, people who are 
injured by defective products, the legal system hardly can be said to 
work well. The GAO, in a five-State survey, found that product 
liability cases took an average of 2\1/2\ years just to reach trial. If 
the case was appealed, it took on average another year to resolve. That 
is a very long time for an injured person to wait for compensation.
  The underlying bill, S. 565, will shorten that time. In some 
instances, too, our product liability laws have enacted barriers to a 
lawsuit that just do not make sense. For instance, in some States, the 
statute of limitations--that is the time within which a lawsuit can be 
brought--begins to run even though the injured person did not know they 
were injured and could not have known that the product was the cause. 
In those States, the time in which to bring a suit can expire before 
the person injured knows or could ever know there is a suit to bring.
  No one will argue that this bill will cure all the ills in our 
product liability system. That would require a truly gargantuan 
overhaul, and I doubt we could reach agreement as to what that would 
look like. But we can, I believe, work to enact a balanced package of 
reforms that work step by step to eliminate the worst aspects of the 
current system, to restore some balance to our product liability 
system. I am confident that S. 565 does just that.
  Mr. President, I want to speak now about the underlying amendment, 
which I have been pleased to offer with the occupant of the chair, 
Senator McConnell, and also Senator Kassebaum. This legislation was 
introduced in February and subsequently considered and reported out, 
though in slightly different form, by the Labor Committee. To put it 
simply, this bill is designed to reduce the inefficiencies and mitigate 
the unintended effects of our malpractice system.
  This amendment is aimed at trying to improve a series of problems in 
our medical malpractice system that are comparable to those which the 
underlying product liability bill attempts to resolve or improve in our 
basic product manufacturing system. And again, it is consumers who are 
paying the extra money to support the current inefficient system that 
overcompensates the less injured, undercompensates the more seriously 
injured, and gives an awful lot of money to those who are keeping the 
system going, particularly lawyers.
  Our present system for compensating patients who have been injured by 
medical malpractice is ineffective, inefficient and, again, in many 
respects, unfair. The system promotes the overuse of medical tests and 
procedures defensively by doctors who have told me, and I am sure told 
every other Member of this Chamber, they would not order this test, it 
is not medically necessary, but they do it to protect themselves from 
the fear of a possible lawsuit.
  The Rand Corp. has estimated the ways in which the current defensive 
practice of medicine actually costs the victims of malpractice. Rand 
has estimated that injured patients receive 
[[Page S5776]] only 43 percent of the money spent on medical 
malpractice and medical product liability litigation. That is 43 cents 
out of every dollar, and victims often receive their awards only after 
many, many years of delay because of the ornate process, the bullying 
and bluffing that the current rules of malpractice encourage.
  In fact, I would say that our current medical malpractice system is a 
stealth contributor to the high cost of health care. It is why those of 
us who worked to adopt a bipartisan health care reform bill always felt 
that if we could do something about medical malpractice and the cost it 
adds to the system, we could reduce concretely, not speculatively, the 
cost of health care.
  The American Medical Association tells us liability insurance 
premiums have grown faster than any other physician practice expense. 
The cost of liability insurance is estimated at $9 billion--that is 
just for the insurance--$9 billion in 1992.
  Incidentally, my friend and colleague from Massachusetts, Senator 
Kennedy, opposing the underlying amendment, said that the insurance 
companies are doing very well, making a lot of money in medical 
malpractice coverage.
  That is a strange argument to make against this amendment. This 
amendment was not put in for the benefit of the insurance industry. 
This amendment was put in for the benefit of patients, doctors, and all 
of us who pay health insurance premiums or pay the cost of doctor care, 
which is inflated because of the current system.
  So it is an interesting argument that the insurance companies are 
doing well at it. But it is not relevant to the purpose of this 
amendment. In fact, it may in some ways justify our amendment. It may 
suggest another reason why the current system needs to be shaken up.
  Let me go back to defensive medicine and try to detail briefly its 
impact on the current system because it is even greater than the direct 
cost of liability insurance. The Office of Technology Assessment--our 
own office here--has found that as high as 8 percent of diagnostic 
procedures are ordered primarily because of doctors' concerns about 
being sued. That does not sound like a high percentage, but it amounts 
to billions of dollars. These defensive practices alone--sometimes 
difficult to measure--present a hidden but very significant burden on 
our health care system.
  There is a well regarded consulting firm called Lewin-VHI. They have 
stated that hospital charges for defensive medicine were as high as $25 
billion in 1991. That is an enormous figure. Basically what they are 
saying is that as much as $25 billion of the costs--this is not paid by 
strangers out there, this is paid by each of us in our health insurance 
premiums--is the result not of medical necessity but because of 
defensive practice occasioned by the existing medical malpractice legal 
system.
  Taxpayers and health care consumers bear the financial burden of 
these excessive costs. Liability insurance and defensive medicine 
insurance premiums also drive up the cost of Medicare and Medicaid and 
therefore exacerbate an increased Federal budget deficit. Further, in 
specialties such as obstetrics--the subject of the second degree 
amendment pending in the Senate--where malpractice premiums have 
skyrocketed, malpractice liability is reducing access to quality health 
care.
  The American College of Obstetricians and Gynecologists reports that 
malpractice costs for their professionals increased 350 percent between 
1982 and 1988; and that by 1988, 41 percent of the obstetricians and 
gynecologists surveyed indicated that they had made changes in their 
practice patterns, including stopping seeing high-risk patients--the 
people who most need their care--because of their concerns about 
medical malpractice suits.
  I can mention a group of doctors I know in the greater New Haven 
area, where I am from in Connecticut, who have ceased delivering babies 
and have changed their practice exclusively to gynecology because of 
their concern about medical malpractice lawsuits.
  The amendment we are discussing today that Senator McConnell and I 
have put in will begin to address these problems--these perverse, 
unfair effects, inefficiencies of our current system, and they will do 
so by directing a greater proportion of malpractice awards to victims. 
That is what the system, as I said at the outset, was supposed to be 
all about. How can we compensate the victim of genuine malpractice?
  Let us be clear. There is nothing in this bill that would at all 
limit the liability of a physician who was guilty of malpractice and 
injured a patient. The whole aim is to put the burden of the law on 
that negligent physician so that that physician is being called upon to 
compensate the victim of that malpractice--not to impose a collective 
burden that results in everybody's premiums being raised and 
everybody's costs of health care being raised. The current system 
compels the practice of defensive medicine and in settling out lawsuits 
for fear of suffering greater liability in the current malpractice 
system, which too many people think is really a kind of lottery.
  The current bill also will discourage frivolous lawsuits and enhance 
the quality assurance programs we all want. Key provisions of the 
reform include, No. 1, establishing a uniform statute of limitations, 2 
years; No. 2, allowing periodic payments for awards greater than 
$100,000; No. 3, applying several--not joint and several--liability for 
noneconomic damages, pain and suffering. There is a concept--joint and 
several liability started out in the law as a way of proportioning 
responsibility when an accident was caused by a number of different 
parties working together in a way that caused negligence, and often it 
was not clear which one actually caused it. So they said everybody 
could be held liable regardless of the percentage of negligence. It now 
has grown to a point where what it really means is that somebody who is 
not liable, or liable very little, if they happen to have deep pockets, 
they can be held fully liable. That is the wrong message to send.
  The whole idea of our civil justice system should be to establish a 
basic principle, which is, if you do something wrong, you have to pay. 
If you hurt somebody, you have to pay. If you do not, you should not 
have to pay. What kind of cynicism is developed when somebody who did 
little or no wrong ends up having to pay the whole bill because 
somebody else slipped away?
  Our amendment also adopts the basic proposal of the underlying bill 
that punitive damages--which have been much discussed here and are an 
essential part of the continued bullying and bluffing that goes on in 
our tort system--be limited to $250,000 or three times economic 
damages, whichever is greater. Attorneys fees will be limited in our 
amendment--contingency fees to 33\1/3\ percent of the first $150,000 
award and 25 percent on anything above $150,000. As my mother would 
say, I suppose, do not worry about the lawyers, they are still going to 
be able to live pretty good lives.
  In medical malpractice cases, it would strengthen the standards for 
awarding punitive damages, strengthen State licensing boards and 
quality improvement programs by using 50 percent of punitive damage 
awards to fund investigations and disciplinary actions to prevent 
malpractice.
  That is a great section of this proposal. I am proud to have worked 
on it with Senator McConnell. As far as punitive damages are awarded, 
let us not take 50 percent of that money and throw it into the pot for 
a contingency legal fee, but let us use it to fund investigations by 
the States into the way medicine is being practiced, to ferret out 
those doctors who are practicing in a way that may be negligent, and to 
make sure they are subjected to disciplinary actions.
  Mr. President, the bill also provides Federal leadership to 
strengthen health care quality in another way. The Senator from Vermont 
[Mr. Jeffords] has helped improve this amendment and bill in committee 
in this regard--by requiring the Agency for Health Care Policy and 
Research to convene an advisory panel to coordinate and evaluate 
methods, procedures, and data to enhance the safety and effectiveness 
of health care services. The panel will report on how to get better 
information into the hands of medical consumers, patients, so they can 
reward high-quality doctors and health plans with their business, let 
the market speak with full information and, of course, avoid risky 
practitioners or health plans that do not have adequate records in this 
regard.
  [[Page S5777]] It is part of the effort of the advisory panel to look 
at ways to strengthen the national practitioner data bank. It is a very 
helpful data base the Federal Government keeps on penalties, such as 
license revocation, taken by State licensing boards and hospitals 
against doctors who have or might put patients at risk, particularly 
doctors that may move from State to State. The data bank contains data 
on malpractice awards. These data are now available to hospitals and 
group practices, and it helps them screen doctors. Ultimately, I think 
we ought to make it available to the public as well. This amendment 
would set that process into motion.
  Mr. President, many of the reform ideas in the Liability Reform and 
Quality Assurance Act were proposed and cosponsored by both Democrats 
and Republicans in the last Congress as part of a comprehensive health 
care reform effort. A number of those ideas were embraced last year by 
a group of us who participated in the bipartisan Senate so-called 
mainstream coalition.
  We did not have a chance to debate those issues here on the floor in 
the last Congress. I am delighted that we now have that opportunity, 
and I am very proud to again join with the occupant of the chair, the 
Senator from Kentucky [Mr. McConnell], in proposing this amendment, 
this underlying bill, which I believe is a genuinely moderate 
malpractice reform bill.
  I hope my colleagues will join in supporting this amendment.
  I yield the floor.
  Mr. KYL. Mr. President, let me begin by complimenting the Senator 
from Connecticut for his very fine remarks in support of the 
legislation that we have introduced. I have had the pleasure to work 
for 8 years with his House colleague, Nancy Johnson, in the House of 
Representatives, who has been a leader in this area, and who has 
educated me and assisted greatly in the development of reform measures. 
I know that he shares with me his deep regard for his colleague and my 
former colleague from the House of Representatives, Nancy Johnson. I 
want to compliment both for the fine work that has been done in 
developing legislation and proposing it as an amendment to the 
underlying bill here today.
  I support the McConnell-Lieberman amendment to the Gorton-Rockefeller 
product liability bill. As I have traveled around my own State of 
Arizona for several years now, the cry has been that we have too much 
taxation, regulation, and litigation.
  There is simply a growing awareness by so many small business people, 
by so many other representatives of business or families, that there is 
something out of whack here. There is something out of balance in our 
society that is preventing America from competing, that is pitting 
citizen against citizen, that is removing the element of responsibility 
from our society, and most of all, hurting all as citizens and as 
consumers because of what some have called the litigation lottery.
  I think that the Senator from Connecticut is correct that what the 
opponents of this legislation must argue is that the status quo works. 
Yet, I think that almost no person can deny that fundamental reform is 
necessary.
  I practiced law for 20 years in my home State, Mr. President. I have 
a deep respect for the legal system as a result of that. Individuals 
who have been injured through the negligence of physicians or other 
parties do have their day in court. They are fairly, and I suggest, 
proportionately compensated for the injuries which are sustained as a 
result of the negligence of those who have treated them.
  It cannot be suggested that people today are not permitted full and 
complete recovery and all of the opportunity the law brings for their 
recoveries. Clearly, a strong and equitable civil justice system is an 
essential component of a free society like ours.
  Having said all of that, it is also true that what has served the few 
well, the injured plaintiffs well over the years, has come to ill serve 
society as it has gotten out of balance. The net result is that 
everyone as consumers are suffering as a result of the litigation 
lottery that I spoke of a moment ago.
  The high cost of civil litigation and the excessive medical 
malpractice recoveries have greatly contributed both to the high cost 
of insurance and high consumer prices.
  There is another way in which this explosion has hurt. It has hurt 
the doctor-patient relationship. As has been noted, a physician now 
treats in fear that what he does may result in a lawsuit, with the 
result that too many diagnostic services are ordered or prescriptions 
or other kinds of treatments are ordered, with the result that the 
costs go up.
  The same kind of psychological well-being that a patient seeks from a 
physician is broken down when that physician sees the patient as a 
potential lawsuit. This is not good for either the physician community 
or for the individuals who are being treated.
  In addition, the current medical malpractice system actually 
encourages litigation and resulting exorbitant out-of-court 
settlements. Let me cite some examples:
  The Senator from Connecticut cited Lewin-VHI, a consulting firm, 
which in 1994, studied and concluded that the direct medical liability 
costs have been growing at four times the rate of inflation--four times 
the rate of inflation. I do not think we can suggest that somehow this 
system has simply kept up with everything else in society. It is 
exploding at the rate of four times the rate of inflation.
  In 1998, according to the study, defensive medicine is projected to 
add $38 billion or more per year to national health care costs.
  If we are going to talk about true health care reform, Mr. President, 
we cannot do so honestly, without addressing this issue. It is not the 
sole answer. There is much else that must be done. But clearly this is 
one of the things which must be done. To pretend that we can have 
health care reform without addressing this problem in the bill that has 
been introduced is to deny a fundamental reality of our society today.
  The practice of defensive medicine, of course, is understandable. No 
one likes to be sued. According to a 1994 study by the Institute of 
Medicine, 40 percent of all physicians and 70 percent of all OB/GYN's 
will be sued during their careers.
  Mr. President, I believe it was you earlier this morning who talked 
about the fact that in many communities we do not have any more OB/
GYN's. We have GYN's, but nobody is wanting to deliver babies any more 
because of the large number of cases in which, when something has gone 
wrong or the baby is not perfect, the physician ends up being sued.
  There are many communities in my own State that are no longer served 
by obstetric physicians because of this phenomena. Mr. President, it 
was discussed this morning, the number of communities, particularly 
smaller communities, in your State and around the country that no 
longer have this service.
  So in order to bring this potential recovery in the litigation 
lottery for a very few, women all over the United States and families 
all over the United States suffer the consequences because their 
communities no longer provide this kind of service, and it puts a 
health risk to the people in the communities.
  Mr. President, my wife was involved in the March of Dimes effort for 
several years helping to raise money for something they called the 
``Mom mobile,'' a large van that would provide prenatal services in the 
outlying areas of our State where there were no physicians to provide 
those services anymore. Among the reasons is this problem that we are 
talking about here today.
  Mr. President, also discussed was the extraordinarily negative impact 
that this has on the minority physician. I think, therefore, we all 
must recognize that when too many people are creating too much of a 
burden on the system, it affects all of America. It affects all 
Americans. When that occurs, we must acknowledge that something is 
wrong, that reform is necessary, and that it is not a matter of not 
wanting people who deserve to be compensated to recover. No one is 
arguing that. We are simply saying that we need to both permit their 
recovery, but also ensure that there are not excessive costs built into 
the system because the system has gotten out of balance.
  With this matter of defensive medicine having achieved the degree of 
cost in our society that it has, I think it is undeniable that the 
problem has to be addressed.
  [[Page S5778]] Medical liability costs do not result in a productive 
use of our health care resources. Another study I would like to cite, 
the Competitiveness Center of the Hudson Institute, noted that of the 
billions of dollars spent on medical liability insurance, 57 cents out 
of each premium dollar goes to lawyers rather than to the injured 
patient.
  This study also found that medical liability costs add $450 in direct 
and indirect costs to each hospital admission.
  So where is the benefit to the people for whom we have so much 
compassion, who deserve to recover for injuries that they have 
sustained because of someone's fault when over half of the money goes 
to the system, goes to the lawyers? And these large costs are added to 
the hospitals and eventually, of course, to the insurance premiums, and 
when added to the other defensive medicine practices drive insurance 
costs up for everyone, preventing some people from being able to afford 
insurance.
  In other words, again, millions of Americans are suffering because 
the system, which is designed to help the few who are injured, has 
gotten so far out of balance.
  There is another study, a Rand study, which I believe has it 
somewhere in the neighborhood of 40 percent of the funds that are 
recovered going to victims and almost 60 percent going to 
administration or to the attorneys involved in the handling of the 
cases.
  The Hudson Institute study that I referred to a moment ago concluded 
the fear of lawsuits contributes more than 5 percent to hospital 
operating expenditures. That is again part of defensive medicine, of 
which we have been speaking.
  Ironically, our tort system also inhibits reimbursement for 
legitimate malpractice claims because of the high cost of retaining 
legal counsel and the length of time between the date the suit is filed 
and the resolution of the claim. In other words, these high costs have 
a tendency to snowball because of the cost of defense. The plaintiffs 
have to spend more time, their lawyers, so the costs of defending 
increase. That is another factor driving up the costs of the premiums. 
Again, that affects all of us and prevents some people from actually 
being able to be insured.
  I just had to make one reference to a comment that the Senator from 
Minnesota made earlier today on the floor. He talked about compensation 
in the form of punitive damages. I think it is important to make it 
very clear that while punitive damages are a component of our legal 
system, they have a very narrow and specific purpose in a very limited 
number of cases. Punitive damages were never intended as compensation. 
Punitive damages were intended to act as a disincentive for bad conduct 
in the future, to punish someone who was so recklessly in disregard of 
the rights of others that that party had to be punished so that the bad 
act would not be repeated.
  There is a lot of discussion of whether or not the punitive damages 
that are recovered should even go to the plaintiff, because they are 
not designed as compensation. You cannot get punitive damages unless 
you have already been compensated. That is the law. The compensation is 
in two forms. The so-called economic damages, which have two 
components: All of the medical bills and costs associated with the 
treatment and recovery for the injury, and the loss in economic wages 
or other cost factors associated with the effects of the injury on the 
injured party and the party's family. Those are designed to fully 
compensate for all of the dollar losses, past, present, and future.
  In addition to that, because we are a caring society and understand 
that there is more than just dollar loss, we compensate for what are 
called noneconomic damages, or sometimes called pain and suffering. And 
this is just. This is fair. This is necessary.
  We often say that no amount of money can compensate for certain kinds 
of injuries, and that is true. Yet, as a society, we recognize that 
some kind of payment is appropriate for those who have suffered. So we 
provide for that kind of compensation.
  There may be an amendment later on that suggests that there needs to 
be an upper limit to that compensation; that beyond a certain amount, 
we are talking about a litigation lottery and not something that would 
reasonably compensate for this pain and suffering. That will be 
reserved for a later time. But that is not involved in the bill that 
you, Mr. President, have introduced, the Senator from Kentucky and the 
Senator from Connecticut have introduced.
  As a result, I do not think we should be confused about this matter 
of punitive damages. By putting a cap on punitive damages, as this 
legislation does, we are not detracting from the compensation of the 
victim. We are simply adding a disincentive for further bad conduct. 
And there is a point at which you are not adding to the disincentive, 
by providing multiple punitive damages awards, for example.
  I am confident that in the discussions we engage in here, ultimately 
a reasonable balance can be achieved that will both restrain the 
spiraling tort litigation costs and recoveries and also afford citizens 
injured through the negligence of others just and reasonable 
compensation. That is our goal.
  I believe the amendment that has been offered here is a step in the 
right direction. I will not review the contents of the amendment. It 
has been well described by both the Senator from Kentucky this morning 
and a moment ago by the Senator from Connecticut. But it does reform 
the statute of limitations to make it uniform. It does cap the punitive 
damages. It provides for joint and several liability reform so, in 
effect, innocent parties do not end up paying the expense just because 
one of the so-called guilty parties cannot be found or is unable to 
economically respond in damages. And it also has a limitation on 
attorney's fees.
  I guess I will just conclude by reflecting on that for just a moment. 
As I said, I practiced law for 20 years and I have a deep respect for 
the legal profession. It is very important that lawyers be adequately 
compensated in order to have the incentive to take cases. That clearly 
is a part of the contingent fee aspect of many of these kinds of cases.
  But it is not too much, I think, to say that as we all begin to look 
on how we can reduce the cost of health care in our society, so that we 
do not have to resort to a kind of socialized medicine that many of us 
feared was going to be the result of the debate last year in the 
Congress, if we are going to reform it ourselves, then we have to look 
at a variety of things, including ways in which we can make it easier 
for Americans to buy insurance, to reduce the cost of health care, and 
a part of that is to reduce the overhead, including the attorney's fees 
that are involved.
  To a point, it is necessary to provide an incentive to take the 
cases. But beyond that point, it again becomes a part of this lottery, 
when in these multimillion-dollar recoveries the attorney receives over 
half of what is awarded to the plaintiff. This amendment is an effort 
to try to return some balance and provide that a good share of the 
recovery, if there is a recovery, goes to the plaintiff, to the injured 
party, rather than to the system and to the lawyers.
  So I am very much in support of the McConnell-Lieberman amendment, 
and I am hopeful when we have concluded the debate on this, there will 
be sufficient support in this body to approve the amendment so this 
bill can go to conference and, in conjunction with our House 
colleagues, develop a piece of legislation that the President can sign 
and finally get us on the road to reform in our litigation system in 
the United States of America.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Thompson). The Senator from Illinois.
  Mr. SIMON. Mr. President, I rise in opposition to this amendment. I 
heard Senator Kyl say this is one important issue in the whole issue of 
health care that should be addressed. And I agree with that. The 
difficulty that we face is we tend to go--and the Presiding Officer is 
a new Member here and he will see this in his years here--we tend to 
swing the pendulum from one extreme to the other, instead of finding a 
sensible middle ground.
  I remember some years ago--maybe 8, 10 years ago--I had a dinner 
meeting with the president of the American Trial Lawyers Association 
and a few others, and I said, ``Let's try to see if we can find a 
sensible middle ground here.''
  [[Page S5779]] Unfortunately, I think at that point, many of my 
friends in the Trial Lawyers Association felt no change was necessary, 
nothing was needed. Now, the pendulum is going to swing much further 
than I think is in the national interest. And if we swing the pendulum 
way over here, it will not be too many years and the pendulum will 
swing back in the opposite direction too far, unless we can find a 
sensible middle ground.
  The big issue is the reality that we have 41 million Americans 
without health care coverage. The most conservative estimate is that by 
the end of this century, just 5 years from now, it will be 50 million. 
No other Western industrialized nation has anything like that. In every 
other Western industrialized nation, everyone is covered.
  If you live in Italy, everyone is covered. If you live in Denmark, 
everyone is covered, as you are if you live in Japan, if you live in 
Germany, Norway, Sweden, Great Britain, France, and so forth. We 
clearly have to do better by the citizens of our country.
  But the question I face is a question in the State of Illinois where, 
in the Labor Committee the other day, I mentioned the Chicago Sun-Times 
story from February of this year, talking about the medical malpractice 
watchdog agency that ensures that we maintain quality care for the 
citizens of Illinois. My guess is what is true in Illinois is true in 
other States.
  That watchdog agency is dominated by members of the medical 
profession. And the Chicago Sun Times aptly said the watchdog agency is 
``not a watchdog. It is a pussycat.'' And they went into all the 
statistics.
  Just as an example, 86 percent of the physicians who were found to be 
on drugs in the State of Illinois were given probation and 14 percent 
suspended for any amount of time at all. You are more likely to be 
suspended if you are a college athlete or a pro football player or 
basketball player in Illinois than if you are a physician where you are 
dealing with the lives of people. That just does not make sense.
  I look at this bill. I say will this help? On the contrary. It 
reduces the penalties that may be available. They have the story of one 
physician who has now been sued 119 times for malpractice. They have 
had complaints. They went into some gruesome stories, and the State 
disciplinary board has done nothing. He has been sued not 9 times, not 
19 times, but 119 times, and the State disciplinary board does nothing. 
Is this bill going to improve quality of care in Illinois? The answer, 
unfortunately, is it will not.
  Yesterday a man named Jim Fairly from Illinois stopped by my office. 
He was walking with a cane. He had broken a hip, and had consulted a 
physician about a remedy. The physician, who had never practiced this 
type of medicine, recommended a prosthesis, which was unnecessary and 
which became infected, causing lifetime damage. He sued his physician 
and won. I do not think we should reduce the penalties in this kind of 
a situation.
  Is there a problem? Yes. I frankly think what we put into the health 
care bill that came out of the Labor and Human Resources Committee last 
year dealt properly with it by reducing the awards to lawyers. I think 
that is the way you deal with it, not some of these other changes that 
are in here.
  And in terms of punitive damages, it is very interesting. I see my 
colleague from Nevada on the floor. I cannot think of a single instance 
in my years in the House and the Senate--and I would guess he cannot 
think of a single instance in his years here --where we have reduced 
the penalty for anything, for any crime. We have increased the 
penalties for drug possession, selling drugs, use of weapons, all kinds 
of things, increased mandatory sentences, and everything else. Here for 
the first time in my 21 years in Congress we will be saying, even if 
you violate commonsense, humanitarian impulses, even if you as a 
physician or a hospital do not use due diligence in protecting the 
lives of people, we are going to reduce your penalty. I cannot think of 
another instance where we have done that. I just do not think it makes 
sense.
  Limit punitive damages to $250,000? What about the hospital in Tampa, 
FL, which just a few weeks ago amputated the wrong leg of a patient? 
Should a punitive damages award there be limited to $250,000? Or the 
same hospital, ironically, because of not handling a situation well 
with a 77-year-old person, where a therapist disconnected the 
ventilator and the person died? Should punitives there be limited to 
$250,000? I do not know what damages should be, but I do not know why 
we should limit it to $250,000.
  What about the Boston Globe health columnist--ironically a health 
columnist--39 years old, mother of two, who was administered an 
overdose of chemotherapy and she died? Or the story last week of the 8-
year-old boy in Denver who went in for a routine ear operation and the 
person administering the anesthesia fell asleep and the boy died? 
Should we decree a maximum award of $250,000 on punitive damages? I do 
not think we ought to be doing that.
  I also would add--I hope maybe that our colleague from Michigan, our 
new colleague, Senator Spencer Abraham, will introduce the same 
amendment he introduced in the Labor Committee giving the States the 
right to opt out of the Federal standard. Right now this amendment says 
States can be less firm, less tough, but you cannot be tougher than 
this bill. Senator Abraham says let us give the States the option. I 
think that makes sense. Establish a standard, if you will, but give 
States the option. And the suggestion by Senator Dodd that was accepted 
in our committee that a jury could find whether there are punitive 
damages, and then the judge would assess the damage, should also be 
restored.
  There are other problems here. One is a problem suggested by the 
Supreme Court decision yesterday, a 5-to-4 decision. I happen to 
disagree with it. But it says you cannot limit guns near a school. They 
said this in a 5-to-4 decision. You cannot limit guns near schools 
because you are not dealing with interstate commerce. What about a 
physician who takes off the wrong leg of a patient? Is that interstate 
commerce? I think there is a real question on that.
  I do not think this has been touched upon in the debate so far, but 
this bill does away completely with joint and several liability for 
noneconomic damages. I do believe that is an area that ought to be 
changed. If you are 1 percent responsible, you should not have 100 
percent of the damages assessed against you. But to simply eliminate 
all joint and several liability in this area makes no sense at all.
  Finally, I would add, the amendment offered by Senator Thomas from 
Wyoming on the question of obstetrics practices, it is dealing with a 
real problem, but I think it provides a standard that we don't normally 
require in civil cases, and it is a standard that is much too severe. I 
would be pleased to work with him and with the others in this body to 
see that we get health care in rural areas. It is a real problem. I 
think this is the wrong way to deal with this problem.
  Finally, again, Mr. President, I would just remind this body that we 
should not be going from one extreme to another. We ought to find a 
sensible middle ground. This is not a sensible middle ground. If this 
passes and if it should be signed by the President --and I hope the 
President will not sign it if it passes--but if it should be passed and 
be signed by the President, then inevitably there are going to be 
enough abuses that we will see the pendulum swing way back in the other 
direction. I think we ought to try to fashion a good, sensible, middle 
ground, bipartisan agreement. And I hope somehow out of the coalitions 
that take place on this floor we can move in that direction.
  Mr. President, I do not see anyone else here seeking the floor. I 
question the presence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, several of our colleagues made some 
assertions earlier in the debate today on the underlying amendment that 
I would like to respond to.
  First, the number and frequency of health care liability claims is, 
in fact, increasing. This is not in dispute. It 
[[Page S5780]] cannot be because we are turning out more doctors who 
commit more negligence. It is, in fact, the prospect of a willful 
verdict or a settlement that encourages people to sue.
  According to estimates based on the AMA physician masterfile and 
other liability data from the AMA, the average rate of claims have 
increased every year since 1987.
  Let us just look at the 3-year period from 1991 to 1993. In 1991, 
33,424 medical professional liability claims were filed. In that year 
1991, 33,424 medical professional liability claims were filed. In 1992, 
38,430 claims; in 1993, 42,828. In just a 2-year period, the number of 
claims jumped by 28 percent.
  As far as the assertion that malpractice insurance costs are not 
increasing, the data shows otherwise. While premiums stabilized in the 
late 1980's, rates are starting to climb again.
  According to the Medical Liability Monitor, more than half of the 
doctors have experienced, for both 1993 and 1994, in the area of 9 to 
15 percent increases, far in excess of the inflation rate.
  As for the assertion that 80,000 people die each year from 
malpractice, it is just not true. That claim is made by the Consumer 
Union based on a 1991 study done by Harvard. Harvard researchers 
studied New York City in 1984, 1 year. Of the 51 hospitals studied in 
that year, 1984, they found 71 deaths out of 31,000 patient records 
where malpractice was the reason for death. There is simply no 
statistically sound way to get 80,000 deaths nationwide from 71 deaths 
in New York City in 1984. In other words, Mr. President, let me repeat. 
There is just no statistically sound way to get to 80,000 deaths 
nationwide from 71 deaths in New York city in 1984 alone.
  The Harvard researchers themselves rejected the Consumer Union 
conclusion during last year's health care debate. In fact, that was in 
a letter to Representative Pete Stark.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, I rise today to express my support for the 
McConnell amendment before us. As the Senator from Kentucky has stated, 
it reflects the work of the Committee on Labor and Human Resources. We 
worked cooperatively on this product. The committee held hearings last 
month to review the issues of medical malpractice in greater depth.
  As I understand the amendment of the Senator from Kentucky, this bill 
does not include two of the amendments that were brought forward during 
our committee markup. I would like to point out that one of these 
amendments was omitted with the agreement of the Senator who authored 
the amendment, and the other related to punitive damages.
  Mr. President, this country needs legal reform. We are now, by far, 
the most litigious country on Earth, and we are paying a huge price as 
a result.
  I speak today as a physician and as a U.S. Senator--as a physician 
who has practiced for the last 17 years, every day, taking care of 
patients, one on one. As a physician, I have seen firsthand on a daily 
basis the threat of litigation and what it has done to American 
medicine. I have watched my medical colleagues order diagnostic tests 
that were costly and unnecessary to the diagnosis or to the care of a 
patient, and they are ordered for one purpose: To create a trail--in 
many cases a paper trail--to protect them in the event a lawsuit were 
ever to be filed. It is called defensive medicine, and it happens every 
day in every hospital across America. It alters the way medicine is 
practiced and it is wasteful.
  So who pays for all of this? The American people do. Insurance 
companies simply pass these costs along in terms of higher premiums. 
Physicians, providers, hospitals pass the costs along in the form of 
higher health care costs, all of which contribute to making overall 
health care more inaccessible.
  Rural providers have a particular problem. They have nowhere to shift 
these increased costs. In my own practice, I practiced in a large 
academic institution. I had a large patient base. I had a good mix of 
payers to share these costs. However, the rural physician--and we have 
seen this specifically in the field of obstetrics, obstetrical care in 
rural areas--the rural physician has nowhere to go. As a result, the 
rural doctor either decides to cease services in areas of medicine 
where litigation risks are high, or worse, but all too often, the rural 
doctor simply packs up and goes somewhere else where the cost can be 
spread over an adequate population base. The result hurts these rural 
areas. There is a maldistribution of physicians, and this contributes 
to that maldistribution. The result threatens, again, both access and 
quality of care in this country.
  Every State has passed some type of medical liability reform. 
However, these reforms vary widely. The McConnell amendment serves to 
establish national minimum standards such as a uniform statute of 
limitations. Some of my colleagues have expressed concern that this 
bill preempts State laws.
  Mr. President, I would like to address the issue of States rights. 
We, as policymakers, must determine what and when the Federal role is 
appropriate. In the case of civil justice reform, the Federal role is 
to respond to the failures of the system and to respond to the impact 
on overall health care costs. As a physician, as one who deals daily 
with patients, one on one, who has devoted his life to caring for 
individuals, this system is failing and we need to respond 
appropriately.
  Medical liability judgments have tripled since the 1970's. Yet, less 
than half of the billions paid in medical liability rewards each year 
actually go to the injured patients.
  If we fail to reform the malpractice system, we fail the victims of 
malpractice. The amendment before us will not prevent a plaintiff with 
a meritorious claim from suing and recovering; it will in fact improve 
his or her chances. The courts will be clogged with fewer spurious 
lawsuits in cases that now lag on for 1, 2, 3, 4, or more years. They 
will move more quickly.
  In closing, I fully support this amendment. It will make our civil 
justice system more responsible, more accessible, more predictable, and 
most important, more equitable. As a physician, I truly believe that 
better medicine will be practiced, to the benefit of each and every 
American.
  Thank you, Mr. President.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Abraham). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, I am concerned about the circumstances 
under which the underlying McConnell amendment is being considered. The 
Labor Committee considered this very language earlier this week. Yet, 
two of the amendments passed in committee have been stripped from this 
version of the bill.
  So what is the point of the committee process if in looking at these 
things deliberatively, investigating them, if the product of the 
committee actually is dropped? I might add it has been dropped in a 
matter of 1 day. Even the bill that passed the committee was too 
extreme a measure to receive my vote, but it was at least better than 
the amendment we have before us.
  Mr. President, it is clear that medical malpractice liability is 
having an impact on health care costs and on the availability of 
medical services, especially in rural areas. I have had a number of 
physicians and hospital groups come into my office to express concern 
about the costs of malpractice premiums and defensive medicine.
  I would like to speak about the Thomas amendment that is now before 
the Senate. I understand the concerns of my colleague from Wyoming.
  Over the years I have fought hard to recruit and maintain health care 
providers in rural areas. We changed Medicare reimbursement for 
physicians practicing in rural areas. I have been a strong supporter of 
increasing Federal support for telemedicine that helps providers in 
rural areas. What's more, I 
[[Page S5781]] have been a long-time supporter of the National Health 
Service Corps.
  Clearly, we have not done enough to get physicians in rural areas. 
During the health care debate, I supported a whole range of provisions 
to increase the number of providers in our rural communities. So this 
is a goal I support strongly.
  But I believe that the Thomas amendment before the Senate is the 
wrong way to go in trying to get more physicians in rural areas. The 
procedure adopted by the Senator from Wyoming is overly broad and 
unnecessary. The usual liability standard that applies to a physician 
who has never seen a patient before is to act as a reasonable physician 
would under the circumstances.
  It is unnecessary to raise the evidentiary standard to clear and 
convincing. This action would create a unique, protected class out of 
all potential defendants.
  Black's Law Dictionary says that clear and convincing proof is proof 
beyond a reasonable--that is, well-founded--doubt. The level of proof 
is extremely high.
  So Mr. President, if we adopt the Thomas amendment, we would have one 
class of providers, OB/GYN's who saw the woman for the first time when 
they delivered the baby. This is the narrowest of the narrowest of the 
narrowest of classes. We would say in that one specific case that the 
evidentiary standard would have to be clear and convincing. All the 
others, of course, are a preponderance of the evidence.
  Again, it makes no sense to do this because the same standard should 
apply for all physicians; that is, reasonable care under the 
circumstances.
  As long as the OB/GYN delivering the baby has, in fact, utilized 
procedures that are reasonable under the circumstances, then that 
physician cannot be held liable. It is when they do not use procedures 
that are reasonable under the circumstances that they may become a 
potential defendant.
  My concern extends beyond the Thomas amendment, however, to the whole 
area of medical malpractice. Studies have shown about 1 percent of all 
hospital patients suffer from that sort of negligent injury. Many of 
them do not receive compensation for those injuries from any source.
  However, three to five times as many cases are filed where the 
patient suffered no compensable injury or where the injury was not 
negligently inflicted. The policymakers need to address how to reduce 
the number of claims brought with no good reason while assuring justice 
for the claims that are justified.
  However, the McConnell amendment does not do that. Instead, it is 
clearly anticonsumer and would move America in the wrong direction. 
This bill would impact those with the clearest cases of injury who are 
being undercompensated under the current system and would not reduce 
the number of cases brought when no compensable injury occurred.
  Some suggest that this bill would reduce the cost of medical 
malpractice. Unfortunately, that is not the case. The only way to 
reduce the real cost of medical malpractice in financial and human 
terms is to reduce the incidence of medical malpractice. Once the 
malpractice occurs, the only question being determined by the courts 
is, Who should bear the cost? Should it be the injured patient or the 
people or the institutions that inflicted the injury?
  While malpractice events are very rare, it is clear that when these 
events do occur, the party responsible should make the party whole. We 
should attack malpractice the same way we fight highway accidents. No 
one, I believe, has suggested that the way to reduce the cost of motor 
vehicle accidents is to make it harder for people to get compensation. 
Would any reasonable person argue that we can cut down the number of 
highway accidents if we only make it harder for people to get 
compensation for those accidents? I do not think anyone could make that 
kind of an argument.
  We have, however, reduced costs by making vehicles safer by the use 
of seatbelts, by vigorous enforcement of drunk driving laws, and by 
raising the drinking age, among other actions. All of these attacked 
costs of accidents by preventing the accidents from happening in the 
first place. This bill does little to help get the small number of 
physicians who are repeatedly found liable for malpractice out of the 
operating rooms and out of their medical offices.
  Further, we are in different circumstances this year than last. If 
the Federal Government is going to develop a comprehensive national 
health care strategy, it would be appropriate to consider malpractice 
reform as one aspect of that strategy. However, a freestanding bill 
such as the one before the committee today--that is, the amendment 
before the committee today--is an unjustified interference with a 
matter traditionally under control of the States, with no strong 
Federal regulatory interests.
  I find it quite curious that the very people who are arguing 
everything else should be turned over to the States, in this instance 
say the Federal Government knows what is best.
  I am not one of those who say that it ought to all be one way or all 
the other way. I think there are some areas in which the Federal 
Government's interest is prevalent; there are others in which the State 
government's interest is prevalent.
  When I look at questions of Federalism, I base my approach on whether 
something ought to be done by the States or the Federal Government by 
looking at the past, whether or not there is any overriding reason why 
things should be changed from what we have done in the past.
  For instance, for the entire past history of the United States, 
product liability malpractice cases compensation has all been under the 
jurisdiction of the States. I now see no overriding reason why the 
Federal Government must now step in. States can handle it, and they 
have handled it and they are handling it, and they ought to continue to 
handle it.
  Again, I have in the past supported civil justice reforms in 
instances where a convincing Federal connection has been shown. I 
believe such was the case in the general aviation product liability 
reform bill introduced by Senator Kassebaum, and which I voted for last 
year. It did pass and was signed into law by the President. I believe 
there was an overriding Federal interest.
  However, in this instance I see no convincing reason to deprive the 
States of their traditional role.
  I think, Mr. President, that when we look at medical malpractice we 
really have to separate fact from fiction and understand the mythology 
that is out there. About 1 percent, as I say, of hospital patients 
become victims of negligent medical injury. That is not very many, 1 
out of 100. Roughly half of those are very minor. But about a quarter 
of them result in death or serious disability.
  The Harvard Medical Practice Study estimates that about 150,000 
patients die annually as a result of medical mishaps. About half of 
those deaths due to negligence.
  Of patients who suffer negligent injuries, only about 2 percent file 
claims for compensation. I think that is very important. Of all of the 
patients who suffer negligent injuries, only about 2 percent file 
claims for compensation, and many of these will receive no compensation 
at all for their injuries. Of those who do, the compensation on average 
is less than the economic losses suffered. More precisely and more 
perversely, as the size of the losses goes up the fraction covered by 
the settlement or award goes down. That is, those who suffer the least 
serious injuries generally receive compensation two or three times 
their actual losses. But those who suffer the most devastating injuries 
and losses receive compensation equal to only a fraction of the losses 
they have suffered.
  On the other side of the ledger, cases of nonnegligent injuries--
noninjuries--the 99 percent of hospital patients not entitled to 
compensation under the law, the best estimate was that about 0.8 
percent of these people file claims for compensation. About 0.8 
percent. What we are saying is for every valid claim brought there are 
three to five filed that should not be. Most of those are dismissed 
somewhere along the litigation process.
  This is a system, I think, in which there has been a lot of myth and 
a lot of misunderstanding. The tort liability system provided 
compensation of only about $7.7 billion, according to a Rand 
Corporation study, about 4 percent of 
[[Page S5782]] the total. They pointed out in a recent year Americans 
suffered about $175.9 billion in direct losses. The tort system only 
compensated for $7.7 billion of that. So, as an accident compensation 
system, the tort system really does not do a very good job, frankly. 
But it may yield a very powerful deterrent effect. Perhaps that is 
really the basis for keeping the tort system, because we do want to 
send a strong signal that people have to act prudently. People have to 
act reasonably. People cannot act negligently. And if they act 
negligently then they have to be responsible for their actions.
  We hear a lot of talk around here about responsibility. I introduced 
a welfare reform bill today. A lot of people talked about 
responsibility on behalf of welfare recipients. I agree with that. But 
I think people ought to act responsibly, and if they do not act 
responsibly and people get injured then the people who acted 
negligently have to be held accountable.
  This is not a new concept. As I stated earlier, this goes back in 
common law for hundreds of years. I think it has provided in our 
country, and in Great Britain, a system that does engender 
responsibility. So that is really what we are talking about. We should 
not turn our back on centuries of practice without good cause.
  In the area of medical malpractice I agree there are some problems, 
and I may offer amendments dealing with some of them. But I would 
proffer this question to those who want to drastically change the 
medical malpractice system, the tort liability system, as we would 
under the McConnell amendment and the Thomas amendment thereto. I would 
question, then, if we really want to lose the quality of care that 
Americans have come to reasonably expect in our health care system.
  I do not think anyone doubts that we have a very high quality of 
care. We may lack access in rural areas and other areas, and we may 
lack coverage of certain people, but no one can doubt that the quality 
of care of our health care system is very high. I heard speech after 
speech last year, on both sides of the aisle, about how we do not want 
to denigrate in any way or reduce in any way the quality of care. We 
want to keep a high quality of care. We want to do whatever we can to 
promote a higher quality of health care in this country.
  My question, then, to those who would change the medical malpractice 
tort liability system is how are you going to keep a high quality of 
care if those who are the practitioners of medicine are told that if 
they act negligently and without reasonable care and concern, they do 
not have to worry, that they are not going to be held liable, because 
there will be limits on recovery. Or in the case of the Thomas 
amendment, which would require a mother to prove her case of 
malpractice by clear and convincing evidence--what would that do to the 
quality of care? That is missing in this debate. I was listening to the 
others talk today earlier. I think we have to bring it down to that. If 
we want a high quality of care we better hold those who practice 
medicine to a very high standard.
  Doctors are perhaps the highest compensated of any profession in our 
country, and I do not deny them that. I could not be a doctor. I have 
said many times that those who practice medicine, God bless them--
especially in rural areas where they are on call 24 hours a day, 7 days 
a week--frankly I do not think they get paid enough, many times. So I 
am not saying they should not be paid well--they earn it in most cases.
  What I am saying is that they are well compensated and we should hold 
them to a high quality of care. I do not know of any doctor who would 
purposely inflict injury or damage on a patient. I suppose there may be 
a twisted mind out there somewhere that would do that, but I do not 
believe that is the case. But there are those who may be in a hurry, 
they may think ``I will cut a corner here, cut a corner there. It will 
be all right. Maybe I will not have to do this procedure.'' When in 
fact there is a set procedure, there are standards to which doctors are 
supposed to adhere. And if they adhere to those, if they act in a 
reasonable manner under the circumstances, they are not liable. They 
are not liable for what happens to an individual because of unforeseen 
circumstances, things beyond their control.
  There is not a jury in this country, I do not believe, that would 
convict a doctor or a hospital if something happened to a patient that 
was totally beyond their control, unforeseen. It is the things that are 
in their control that can be foreseen--it is that lack of due care and 
diligence--that causes tort feasors to be held accountable and liable.
  Again, we get back to this quality of care. We want to keep a high 
quality of care and therefore we want our medical practitioners to be 
highly trained, highly qualified. We want them to continue their 
education, their medical education; to be recertified all the time. And 
we want to make sure when they practice medicine they adhere to the 
highest possible standards.
  One way to do that is to say, ``Look, if you do not, you are going to 
be held liable in a tort liability system that has been time-tested 
over 600 years to make sure people do in fact act responsibly.''
  Mr. President, I read over some recent malpractice cases. I think, if 
you read them, what you find is that these are people like you and me. 
These are people, ordinary citizens, going on about their business. 
Yet, the medical practitioners who treated them did not adhere to 
reasonable procedures under the circumstances and are liable.
  I think there is always concern when any of us go to a hospital and 
are put under a doctor's care. We put a lot of faith and trust in our 
doctors, we really do. And 99 percent of the time, that trust is well 
placed. I think, as Senator Wellstone said earlier, one rotten apple 
can spoil the basket. It could spoil the basket even more if we do not 
have a tort system that holds these people accountable.
  I sum up by saying the Thomas amendment is way out of the ballpark 
because it exempts a very narrow class from being responsible at all. 
The McConnell amendment takes the malpractice bill that passed the 
Labor Committee just 2 days ago, strips out the amendments that were 
offered, and then offers it as an amendment on this bill. As I said, I 
could not even support the bill as it came through the committee even 
with the amendments. Now this makes it even worse.
  So I assume motions will be made to table the Thomas amendment and 
the McConnell amendment. I hope those motions are successful. I think 
the quality of care, especially the quality of health care in this 
country, would drop precipitously if either one or both of those 
amendments were adopted.
  Mr. President, I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. KASSEBAUM. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. KASSEBAUM. Mr. President, I rise in strong support for and to 
offer a few remarks on behalf of the amendment put forward by my 
colleague Senator McConnell, Senator Lieberman, and myself.
  I think this amendment is a moderate, measured approach to medical 
liability reform. It is very difficult for us to debate any type of 
liability reform in the Congress, in the Chamber of the Senate or in 
the House of Representatives, without getting into worst case 
scenarios. There is none that we are more sensitive regarding, I think, 
than medical liability reform.
  I have a great deal of confidence in the Senator from Kentucky [Mr. 
McConnell] and the Senator from Connecticut [Mr. Lieberman], who have 
spent a lot of time trying to bring forth the difficult aspects of this 
issue in the most acceptable consensus that really does give us some 
successful and constructive results to a problem that really troubles 
everyone in one way or another.
  I know that we have already heard some of the specific provisions of 
the McConnell amendment, but if I may, Mr. President, I would like to 
reiterate some of them that I think are particularly useful and 
important to remember. One, that there is full recovery of economic and 
noneconomic damages. 
[[Page S5783]] The amendment allows injured patients to recover 
complete compensatory damages. It places no limitations on the amount 
claimants may recover for economic damages such as out-of-pocket 
medical expenses, rehabilitation costs, lost wages, cost of domestic 
services, and noneconomic damages such as pain and suffering, mental 
anguish, and loss of companionship. The amendment that is before us 
currently contains a cap on punitive damages of $250,000 or three times 
the economic losses, whichever is greater.
  I understand there are discussions ongoing now with Senator Snowe and 
others about punitive damages. I would just like to say for myself, Mr. 
President, whatever agreement can be reached--I think Senator McConnell 
as well is a party to this--if we can reach an agreement with the 
chairman, Senator Gorton, on what type of punitive damages language we 
would want to have, I think there would be strong support for that. So 
that is still ongoing and debated.
  There is a limit on attorneys' fees to ensure that injured patients 
recover a greater share of their medical liability awards. The 
attorneys' contingency fees are limited to 33\1/3\ percent of the first 
$150,000 award and 25 percent of awards in excess of $150,000. This is 
identical to the provisions contained in the bill that Senator Kennedy 
introduced last year.
  There is also the State alternative dispute resolution. Many in the 
legal profession and outside the legal profession believe we need to do 
more to encourage alternative dispute resolution, to promote the 
resolution of claims in a more convenient and timely--and let me stress 
timely--manner because years can go by in which most of those who need 
assistance are frequently tied up in the courts waiting to see what 
happens. This will be a means of getting a more timely redress and in 
an affordable manner.
  The amendment encourages States to experiment with the alternative 
dispute resolution and requires the U.S. Attorney General to provide 
technical assistance to States regarding various ADR mechanisms.
  Finally, thanks to the contributions of Senator Jeffords, the 
amendment requires the Agency for Health Care Policy and Research, in 
consultation with public and private sector entities, to establish 
guidelines on quality assurance, patient safety, and consumer 
information.
  This is a small step in the right direction and one that has to be 
taken with some care, but I think we would all agree that a better 
means of obtaining information for consumers would be beneficial and 
useful.
  Much has been said in the Chamber today both pro and con, and I do 
not like to be repetitive, but I think there are some things that are 
worth repeating. While we have different thoughts on this, I think all 
of us are struggling to find some better means of addressing tort 
reform and answering the problems that exist today in a society in 
which we have all become so very litigious, that as we weave this web 
of ever greater litigiousness, I think we are doing a great disservice 
to those perhaps most in need of redress in the courts.
  The current liability system carries great human and economic costs. 
It does not work well for anyone--not for doctors, not for hospitals, 
not for families, and not for injured patients.
  Under the present system, it takes an average of 5 years from the 
time a patient is injured to resolve a malpractice case. That is really 
inexcusable.
  The Rand Corp. has found that only 40 cents of every dollar spent in 
medical liability litigation reaches injured patients. The rest goes to 
court costs and attorneys' fees.
  The United States has the world's most expensive tort system. At 2.3 
percent of GDP, U.S. tort costs are substantially higher than those of 
any other country and two and a half times the average of all developed 
countries.
  The Harvard Medical Practice Study, based on a review of 31,429 
medical records in 51 New York hospitals, found that only 1 in 16 
injured patients actually received compensation. On the other hand, the 
study concluded that half of the malpractice claims that were filed 
were without merit.
  Moreover, according to a 1992 survey by the American College of 
Obstetricians and Gynecologists, 12.3 percent of the OB/GYN's 
nationally gave up obstetrics in 1992 as a direct result of liability 
concerns.
  I know in my own State of Kansas, it is becoming increasingly 
difficult, if not impossible, to find obstetricians and gynecologists 
who will go into the smaller, more rural communities because of the 
high cost of insurance that they must carry versus the number of 
patients that they may see. So it becomes an increasingly difficult 
problem in ways that we perhaps do not realize.
  I would just like to say a few additional words about the preemption 
provisions of the McConnell amendment. I know this is a concern to some 
and I am sympathetic to that. How far do we go at the Federal level to 
preempt the various State laws that provide, in this case, guidance for 
litigation?
  I do not believe there is a need for absolute uniformity in this 
area. But I do believe it is important to set some very clear, minimum 
Federal standards that all States must meet.
  Let me just explain why I think that is important.
  The amendment does not preempt States from going further with medical 
malpractice reforms that they may decide are necessary. They may go 
further.
  California, for instance, now caps noneconomic damages at $250,000. I 
think this is the best way to balance the need for some State 
flexibility with the need for greater certainty and predictability in 
the system.
  When I mention California capped noneconomic damages, let me just 
reiterate, this amendment does not cap noneconomic damages. But 
California would not be preempted because it would go even further.
  What this does, to a certain extent, is set a floor below which there 
could not be changes made and, therefore, it adds a certainty and a 
predictability that I think will enable cases to be resolved in a 
timely fashion. Without some sense of specificity, I think we lose this 
timeliness, lose the ability to move the process forward.
  I believe that setting a minimum level of medical liability reforms 
is necessary to continue development of a cost-effective private health 
care system.
  Moreover, there is a direct and compelling Federal interest in 
reforming our outmoded medical liability system. One-third of the total 
health care spending in this country is paid by the Federal Government 
through Medicare and Medicaid Programs.
  Finally, as my colleague, Senator Frist, knows perhaps better than 
anyone else in this body, health care services are increasingly 
becoming regional, if not national. Senator Frist from Tennessee was a 
surgeon prior to his coming to the U.S. Senate.
  For example, some of the finest medical facilities in the United 
States, such as the Mayo Clinic in Minnesota, Stanford University in 
California, Barnes Hospital in Missouri, and the Cleveland Clinic in 
Ohio--and I do not want to leave others out--are examples of important 
regional centers that treat patients from across the Nation and around 
the world.
  That is why, it seems to me, the more we can begin to start with some 
very important but moderate approaches to medical liability reform, I 
think we take a big step forward in assuring not only the access and 
timely access to redress, but we also provide the stability and some 
assurance of what actually is out there in the way of costs.
  It should not, in any way, close the doors to those who need redress 
in the courts. But it should make us all mindful of being able to 
change the system that is getting out of hand. And in our own 
responsibility, whether it is here on the floor of the Senate or 
individually, we have to address and take responsibility for a growing 
environment that I think creates problems for each and every one of us.
  Mr. President, I would just like to strongly urge my colleagues to 
support the McConnell-Lieberman-Kassebaum amendment. I know that we 
have a somewhat bumpy path ahead on this, but I am hopeful that we can 
move forward with the debate. Those who object have laid out some of 
their objections. But I think it is time for us to vote and move 
forward and get to the heart of the matter.
  [[Page S5784]] Thank you, Mr. President.
  I yield the floor.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. Mr. President, I should like to say how much I appreciate 
the thoughtful presentation of my colleague, usually seatmate, the 
chairman of the Labor Committee, on which I serve, the Senator from 
Kansas, in this connection. She has felt the necessity of moderate, not 
extreme, reforms in medical malpractice legislation for many years. And 
she now, I believe, has had the first opportunity ever to discuss 
legislation of that sort on the floor of the U.S. Senate. I strongly 
suspect it may not be the last such time, but it at least marks a 
thoughtful and balanced beginning presentation of a serious challenge 
to our entire health care system.
  Mrs. KASSEBAUM. Mr. President, I thank the Senator from Washington. 
Senator Gorton has provided, I believe, a very important vehicle in his 
product liability legislation to which we are wanting to add this 
amendment and want to do so in a constructive way that will be an 
addition to the product liability bill before us.
  I know that Senator McConnell, Senator Lieberman, and myself want to 
do all that we can to be supportive of the product liability bill and 
we want to work to make any changes in the medical liability reform 
amendment that would fit with the broader product liability bill. To 
that end, I think, as the Senator from Washington knows, we will do all 
we can to be helpful.
  Thank you, Mr. President.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KOHL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KOHL. Thank you, Mr. President. I rise today as a supporter of 
product liability reform to discuss an important issue which this 
reform effort has so far failed to address and I believe should be 
addressed.
  The problem is excessive court secrecy. Far too often the court 
system allows vital information that is discovered in product liability 
litigation and which directly bears on public health and safety to be 
covered up, to be shielded from families whose lives are potentially at 
stake and from the public officials that we have appointed to protect 
our health and safety. All this happens because of the so-called 
protective orders, which are really gag orders, issued by courts and 
which are designed to keep information discovered in the course of 
litigation secret and undisclosed.
  Typically, injured victims agree to a defendant's request to keep 
lawsuit information secret. They agree because defendants threaten that 
without secrecy, they will refuse to pay a settlement. Victims cannot 
afford to take such chances, and while courts in these situations 
actually have the legal authority to deny requests for secrecy, 
typically they do not, because both sides have agreed and judges have 
other matters that they prefer to attend to.
  So, Mr. President, secrecy has become the rule in civil litigation, 
even though it causes harm and suffering to millions of other 
Americans. For example, 1 million women who received silicon breast 
implants in the 1980's were denied crucial information demonstrating 
the hazards of implants. The information was uncovered in a 1984 
lawsuit, but it was kept secret by a court order until 1992. So what do 
we say to these women? How do we, as a civilized society, justify the 
secrecy orders that prevented them from making informed choices about 
what they were putting into their bodies?
  What do we say to the scores of young children injured while playing 
on defective merry-go-rounds that remained on the market for over a 
decade because many lawsuit settlements concerning this sickening 
product were kept secret from the public and from the Consumer Product 
Safety Commission. These children, most of them under 6 years of age, 
lost their fingers, their hands, and feet.
  Another case involves Fred Barbee, a Wisconsin resident whose wife, 
Carol, died because of a defective heart valve. We learned in a 
Judiciary Committee hearing more than 4 years ago from Mr. Barbee that 
months and years before his wife died, the valve manufacturer had 
quietly, and without public knowledge, settled dozens of lawsuits in 
which the valve defects were clearly demonstrated.
  So when Mrs. Barbee's valve malfunctioned, she rushed to a health 
clinic in Spooner, WI, thinking, as did her doctors, that she was 
suffering from a heart attack. As a result of this misdiagnosis, Mrs. 
Barbee was treated incorrectly, and she died.
  To this day, Mr. Barbee believes that but for the secret settlement 
of heart valve lawsuits, he and his wife would have been aware of the 
valve defect and his wife would be alive today.
  As a last example, Mr. President, let me tell you about a family 
which we must call the Does because they are under a secrecy order and 
afraid to use their own names when talking to us. The Does were the 
victims of a tragic medical malpractice that resulted in serious brain 
damage to their child. A friend of the Does is using the same doctor, 
but Mrs. Doe is terrified of saying anything to her friend for fear of 
violating the secrecy order that governs her lawsuit settlement. Mrs. 
Doe is afraid that if she talks, the defendant in her case will suspend 
the ongoing settlement payments that allow her to care for her injured 
child.
  What sort of court system prohibits a woman from telling her friend 
that her child might be in danger? Mr. President, the more disturbing 
question is this: What other secrets are currently held under lock and 
key which could be saving lives if they were made public?
  Last year, during debate on the product liability bill, we began a 
discussion about court secrecy reform, and we should continue that 
discussion today. I favor a simple change in the system that would not 
prohibit secrecy but merely send a signal to judges to more carefully 
consider the public interest before drawing the veil of confidentiality 
over crucial information.
  That change would work as follows: In cases affecting public health 
and safety, courts would apply a balancing test. They could permit 
secrecy only if the need for privacy outweighs the public's need to 
know about potential health or safety hazards. This change in the law 
would ensure that courts do not carelessly and automatically sanction 
secrecy when the health and safety of the American public is at stake.
  At the same time, it would still allow defendants to obtain secrecy 
orders when the need for privacy is significant and substantial. The 
court secrecy reform I have suggested is not antibusiness. Business 
people want to know about dangerous and defective products, and they 
want regulatory agencies to have the information necessary to protect 
the public.
  And so in summary, Mr. President, the product liability bill that we 
are debating today is all about striking a better, more reasonable 
balance between plaintiffs and defendants in product liability 
lawsuits. The change that I propose in our court secrecy laws is also 
about striking a better balance in product liability lawsuits, a better 
balance between the private parties involved in litigation and the 
millions of American consumers who today are being kept in the dark in 
many cases because of court secrecy.
  I hope my colleagues who support product liability reform will 
recognize the need to deal with this very serious issue.
 Reform, after all, is a two-way street. I thank the Chair and I 
suggest the absence of a quorum.

  The PRESIDING OFFICER (Mr. Gregg). The clerk will call the roll?
  The assistant legislative clerk proceeded to call the roll.
  Mr. KOHL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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