[Congressional Record Volume 141, Number 69 (Thursday, April 27, 1995)]
[Senate]
[Pages S5784-S5798]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         PRIVILEGE OF THE FLOOR

  Mr. KOHL. Mr. President, I ask unanimous consent that my Judiciary 
Committee law clerk, Julie Selsberg, be given floor privileges during 
the debate on the product liability legislation.
  [[Page S5785]] The PRESIDING OFFICER. Without objection, it is so 
ordered.
  Mr. KOHL. 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.
  Mr. BURNS. 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the quorum call be rescinded.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. BURNS. Mr. President, I rise this afternoon in support of the 
McConnell amendment to the Product Liability Reform Act that is now 
being considered before this body. If there was one thing that was made 
clear last year during the health care debate, it was a need for 
medical malpractice reform, not just to curb the need for defensive 
medicine--and some still argue about the extent to which that 
contributes to our rising costs in medical care--but to get a handle on 
this incredible amount of litigation our society now seems to take part 
in.
  In Montana I have talked with several of our rural doctors who, 
through no fault of their own, have outrageous malpractice premiums. I 
recently had a primary care doctor in my office who pays $38,000 a year 
in premiums. To those folks who practice in more urban areas and have 
extended practices, $38,000 might not sound like much. But it is a big 
ticket in a rural State. To top that off, he is yet to be sued. But, 
yet, to protect himself, he cannot avoid paying this premium. Of 
course, we know who pays for that--the people who use his services. On 
top of this cost of practice, he has overhead expenses, too. It is no 
wonder the cost of services and fees continues to go up. In fact, I was 
astounded to find out the other day from a group of doctors what an 
office call would cost if it were not for a lot of extenuating rules, 
regulations, insurance, and, yes, Government regulations in their life, 
and how that increases just the price of an office call.
  The McConnell amendment is a perfect fit on this product liability 
reform bill. I am glad to see the House has included it and that this 
body is considering it now. The product in this case is health care 
services. I am not trying to say that people do not deserve malpractice 
awards. As in any business, people are fallible, judgment is not always 
true, and accidents do happen. I think we tend to hold health care 
providers to a higher standard because much of the time they hold our 
lives in their hands.
  But malpractice claims are made more often than necessary. Of the 
billions of dollars spent on medical liability, 50 cents of every 
premium dollar goes to the attorneys and not to the injured patients 
that this system was meant to help. If our goal is to direct health 
care dollars into the legal system for the attorney fees and court 
costs, then we should not enact liability reform. However, if the 
patient is our priority, and if quality of care is important to us, 
then this provision is essential.
  One area that I am very interested in is the contingency reform 
provisions in this amendment. This provision will help to address some 
of the sizable costs in the system by limiting an attorney's 
contingency fee to 33\1/3\ percent for the first $150,000 and 25 
percent of any amount over $150,000. The real travesty of justice here 
is the amount of the health care liability award that goes to the 
attorneys. The contingency fee was intended to be the poor man's key to 
the courthouse. According to the evidence from a 1990 Harvard medical 
malpractice study in New York, the contingency fee is not serving this 
function very well.
  Most folks with small health care injury claims never get access to 
the civil justice system because the contingency fee stimulates lawyers 
to be primarily interested in the big ticket cases. It is the same 
incentive that drives the lawsuit lottery, encouraging lawyers to take 
cases with a sympathetic plaintiff even if there is no negligent care. 
In many States, the contingency fee is growing. Though traditionally 
the norm is one-third of the plaintiff's payment, the standard is 
growing to 40 percent and, yes, 50 percent contingency fees are 
becoming more and more common. This fee covers only the attorney's 
professional fee. Litigation expenses are deducted separately from the 
plaintiff's recovery and they, too, can be quite high.
  I am proud to say that the Montana Legislature has just passed 
legislation to cap the fee and reform our medical liability system, the 
Montana State Legislature that just adjourned prior to the Easter 
break. I take my lead from my constituents. I always have and I always 
will. But I also keep a pulse on what is going on around the Nation.
  In a recent public opinion strategist poll linking people to groups 
that represent America's values, I tell you what, attorneys, kind of 
with us, are running pretty low. But for the sure reason for that, 
maybe we should examine the system. Incidentally, doctors were near the 
top of the poll.
  So I urge my colleagues to support the McConnell-Kassebaum amendment. 
After all, it was just a couple of years ago that Senator Kassebaum 
worked on a medical plan, and this was included in her plan then so 
this is not a new idea. It is an idea that has been accepted by the 
American people and it is an idea whose time has come. These two 
amendments together will meet the needs of the injured patients who 
deserve to be fairly compensated and society which needs to reduce 
transaction costs and eliminate windfall judgments. But above all, it 
will allow us to continue to promote the highest quality medical care 
for our people, our consumers in this country, and maintain that high 
quality for years to come. It is very important that this be a part of 
this package whenever we go to conference and when it becomes law.
  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. KENNEDY. 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. KENNEDY. Mr. President, I wish to review for the Members where we 
are this afternoon on the malpractice insurance proposal offered by 
Senator McConnell, and now added to by Senator Kassebaum.
  Process is really not always important, but the Senate has a process 
to ensure adequate consideration to measures such as these. We will 
have a chance to revisit the substance of some of these measures during 
the course of consideration of the McConnell amendment. But since I 
referred earlier to the actions of our committee, I wanted to at least 
give the Senate an idea of what we have been doing, and what the result 
of our deliberations has been.
  The amendment described by the Senator from Kentucky is not the 
product of consideration by the Labor and Human Resources Committee. 
That committee, under the chairmanship of Senator Kassebaum, spent a 
full day this week and half a day earlier this month debating a bill 
virtually identical to the amendment Senator McConnell has offered 
today. Members heard each other's arguments, compared their experiences 
in their own States, and worked in a collegial and good-faith fashion 
to craft a better bill.
  Three very important amendments were adopted. First, there was an 
amendment offered by Senator Dodd that removed the cap on punitive 
damages, providing a more structured process by which the jury 
determines whether the punitive damages are warranted and the judge 
sets the amount.
  Now, I just want to mention that punitive damages in malpractice 
cases are extremely rare. However, of those cases that do merit 
punitive damages, 68 percent involve sexual abuse of patients by the 
medical profession. So in addition to a very high standard that was 
established in the McConnell bill, there is also a cap on the punitive 
damages. They establish a very high standard, but make it virtually 
impossible to reach that very high standard.
  In the consideration of this bill by the committee, we talked about 
the egregious nature of sexual abuse in a medical setting, cases in 
which a woman is anesthetized and then abused, for instance. We 
thought, even if you are going to have a cap on punitive damages, those 
circumstances are so outrageous that we should allow an exemption--if 
women are able to reach the burden of proof established in the 
[[Page S5786]] legislation, there should be the ability to go above the 
cap in the McConnell amendment. This was virtually unanimously 
supported by the members of the committee. This is a matter of great 
interest to the women of this country; not just those who have been 
involved in cases with punitive damages, but as a message to all that 
this is an issue so reprehensible it is going to receive the attention 
of the Congress of the United States.
  Now, that is out. That is out in the McConnell amendment.
  We had a good deal of consideration. We had evidence not only of that 
kind of activity, we also had evidence where we had doctors who are 
practicing medicine and committing negligence when they are under drugs 
and also under alcohol. We wanted to have that as an exemption of 
punitive damages. No, that was rejected and it is rejected in the 
McConnell amendment.
  We wanted to also lift from punitive damages those circumstances 
where doctors have their license suspended and still go ahead and 
perform operations. That was not considered during the course of the 
discussion and debate.
  But we did accept the particular circumstances where punitive damages 
in malpractice, that there was going to be a recognition that in those 
cases that are so heinous with regard to taking advantage of women, 
that that was going to be addressed.
  We had a second provision on the issue of damages and that was 
offered by our friend and colleague, the Senator from Connecticut, that 
was accepted. That provided that the jury would make the determination 
as to whether there should be the punitive damages and the judge would 
make the judgment to set the amount and there would be a criteria as to 
how that amount would be reached. That was accepted by the committee 
after good debate and discussion about reviewing what had happened in 
the States.
  I was interested to hear my friend and colleague from Montana say, 
``Well, Montana has just adopted a good program on the issue of 
malpractice.''
  Well, he might as well kiss that goodbye, because we are going to 
preempt that under the McConnell amendment.
  I am not sure that everyone understands in this body, when I listen 
to my colleague say we adopted a program out in Montana and it is on 
the books now and, thank God, we are going to have a bill that is going 
to reach the needs of the people of program. Well, I am telling you 
this program is probably going to preempt it in some form or shape and 
that will be true about Wyoming and Montana and other States.
  But, nevertheless, we brought about some changes with the Dodd 
amendment on the punitive damages.
  And then we had the Abraham amendment that permitted the States to 
opt out of any and all reforms in this bill. I would have preferred a 
broader form of nonpreemption language, but the committee debated the 
matter at length and, with great thoughtfulness, it was the will of the 
committee that the preemption should be addressed through the mechanism 
of the Abraham language. And that was after a lot of discussion and 
debate and a lot of give and take on it. But, effectively, that 
consideration and those hours of discussion and debate are by the 
board, and that is gone.
  Now 2 days have passed since the markup of the committee. No report 
has been filed explaining what is either in this bill or reported out 
of our committee's bill. At least you should have a report of what came 
out of the committee and then you could explain how that is different 
in the McConnell amendment. But we have not even waited for that 
report.
  And the text of the bill itself, as amended in the committee, is not 
even publicly available in typeset for the members of the committee; 
not even available. And so we are acting on the basis of the 
explanation of the comments of the Senator from Kentucky and others 
about the legislation itself.
  And now the Senator from Kentucky offers the amendment that basically 
ignores the work of the committee. That is his right. But it should 
give some Members pause. Either the committee process is to be 
respected as a way to improve or refine the legislation or it is a 
joke. The language of the McConnell amendment has been rejected, much 
of it, by the Labor and Human Resources Committee. We considered it and 
decided it should be reported without taking into consideration the 
Dodd and the Abraham amendment.
  So I hope the Members will recognize the circumvention of the 
committees process. He has the right to do so. But it does disregard 
the orderly and important consideration of complex and far-reaching 
legislation.
  But it is interesting, Mr. President, that during the course of the 
consideration of the amendment in the committee, the whole question 
about how we should deal with the professional liability premiums for 
obstetricians and gynecologists was considered by the committee as 
well. That is in the Thomas amendment.
  And I refer now to an article by the American Medical News that is 
right on point of the Thomas amendment.
  I ask unanimous consent that the text of the article be printed in 
the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

              [From American Medical News, Feb. 22, 1993]

         Quality Assurance Prenatal Systems Reduce Risk for OBs

                            (By Greg Borzo)

       Professional liability premiums for some obstetrician-
     gynecologists have fallen dramatically in recent years 
     because of greater physician participation in risk 
     management, quality assurance and documentation of care.
       Patient flow charts, checklists, practice guidelines and 
     comprehensive office-wide management systems have played a 
     big part in the drop, even though many physicians regard such 
     tools as cookbook medicine.
       ``Because obstetrics is a high-risk area, we and other 
     insurance companies have concentrated our efforts on it,'' 
     said Julie Pofahl, director of risk management, Physicians 
     Insurance Co. of Wisconsin (PIC-W), ``Physicians are 
     improving the quality of care and their record-keeping in a 
     variety of ways, and as a result, we have seen lower 
     frequency and severity of claims.''
       Their work is paying off. Over the last four years, 
     premiums charged by physician-owned insurance companies have 
     fallen more for obstetrician-gynecologists than for any other 
     specialists, according to the Medical Liability Monitor, an 
     independent newsletter. In 1992, half the companies did not 
     change their premiums, while 35% reduced them an average of 
     8.3%. In 1989, ob-gyns insured by commercial and physician-
     owned companies saw rates cut an average of 14.5%; in 1990, 
     16.3%, and 1991, 10.9%.
       One risk management and quality assurance plan, Prenatal 
     Care, appears to be so successful in reducing obstetrics 
     claims that at least three insurance companies are providing 
     it free to any physician they insure, even though it costs 
     more than $500 per system and about $5.40 per patient for 
     materials. Two of them, Colorado Physicians Insurance Co. 
     (COPIC) and Physicians Insurance Co. of Ohio (PICO), also 
     offer a 15% premium rebate to physicians using the system.
       Prenatal Care, a comprehensive, integrated system marketed 
     by Advanced
      Medical Systems in Tulsa, Okla., includes a detailed patient 
     questionnaire and a flow sheet to monitor a pregnancy and 
     remind physicians to perform critical tests. It also 
     includes physician and staff training materials and 
     extensive patient educational handouts.
       A 50-form introductory unit costs $395, an instructional 
     videotape $95 and quarterly updates run $99 a year.
       COPIC began promoting the system about six years ago, and 
     it appears to have contributed significantly to falling 
     liability rates for obstetricians in Colorado. Statewide, 
     premiums fell from $61,000 five years ago to $33,000 for OBs 
     and remained stable for family physicians who deliver babies.
       Only one claim has been filed against Colorado physicians 
     who used the system during the past six years, when it was 
     used for more than 70,000 pregnancies and births, according 
     to Arnold Greensher, MD, a co-developer of the system. 
     Nationwide, two claims have been filed in 150,000 cases since 
     the system was developed 14 years ago.
       ``The system helps organize patient care and makes sure 
     that nothing gets overlooked or forgotten,'' said George 
     Thomasson, MD, a family physician and COPIC's vice president 
     of risk management. ``This is especially important with the 
     growth of managed care, which leads to fragment the delivery 
     of care.''


                    slow acceptance outside colorado

       Nationwide, more than 1,500 physicians use the system in 44 
     states, and more than 55,000 forms were shipped in 1992, Dr. 
     Greensher said. Physician-owned insurance companies in at 
     least eight states are testing, promoting or giving away the 
     system.
       Louisiana Medical Mutual Insurance Co. (LAMMICO), for 
     example, began providing the system to some of its physicians 
     three months ago and plans to make the system available to as 
     many physicians as possible.
       But the system isn't in widespread use outside Colorado.
       [[Page S5787]] Even though PICO provides the system free 
     and offers its doctors a 15% rebate for using it, only one-
     third of its OBs and family physicians that deliver babies 
     use it. PICO has been promoting the system for two years.
       ``Physicians have been reluctant to try this because of two 
     things: inertia
      and the fact that many hospitals mandate the use of certain 
     forms of flowcharts that preclude the use of something 
     else,'' said Mark Hannon, vice president of the doctor-
     owned firm.
       PIC-W also provides Prenatal Care to physicians. After 1\1/
     2\ years, it has given away materials to about 250 
     physicians. ``Some obstetricians say that some of the forms 
     are redundant and the manual is too basic to be very 
     useful,'' Pofahl said. ``The system could be more appropriate 
     for family practitioners than for obstetricians.''


                             crowded field

       Users and promoters of the system speculate that it has not 
     caught on more quickly because of cost and competition. For 
     years, a host of prenatal care forms and computerized systems 
     have been available.
       Chief among them is the Antepartum Record, a five-page form 
     introduced in 1989 by the American College of Obstetricians 
     and Gynecologists. More than 600,000 forms were sold in 1992, 
     one version for about 20 cases per form, the other for a 
     dollar.
       ``A lot of obstetricians already use the ACOG form and have 
     developed other forms and office procedures based on it,'' 
     Pofahl said. ``Many say they like Prenatal Care's system 
     better but that they don't want to switch because they are 
     just getting adjusted to ACOG or other forms.''
       Others complain about the cost of switching and the 
     inconvenience of using two systems during the interim.
       While proponents claim Prenatal Care is so comprehensive 
     that it's in a class of its own, physicians, tend to lump all 
     systems and forms together.
       ``Our is the only true system,'' Dr. Greensher said, ``The 
     other products are just forms.''
       Steven Komadina, MD, agrees. Last year, he switched from 
     ACOG's form to Prenatal Care's system, which he describes as 
     nearly foolproof and far more comprehensive. He especially 
     likes the patient education component, which helps the 
     patient realize that she is responsible for her health.
       The Albuquerque obstetrician has less use for the manual, 
     but says it's helpful for nurse practitioners, physician's 
     assistants and family physicians.
       ``It's helping to relieve a crisis in rural Torrance 
     County, about 100 miles away, by giving family physicians 
     there the competence and confidence to provide prenatal 
     care,'' Dr. Komadina said. ``Over half the 250 women 
     delivering there receive no prenatal care.''
       Risk-management directors, however, wonder whether the 
     system is used by physicians who need it most. LAMMICO told 
     several ``problem'' physicians last year that it would not 
     insure them unless they used Prenatal Care.
       ``Doctors who have tried the system up until now are 
     probably the ones with a high awareness of the issues 
     surrounding risk management,'' Gunter said. ``We want to see 
     the impact on those with high claims frequencies.''
  Mr. KENNEDY. I will read a portion of it at this time.

       Professional liability premiums for some obstetrician-
     gynecologists have fallen dramatically in recent years 
     because of greater physician participation in risk 
     management, quality assurance and documentation of care . . .
       ``Because obstetrics is a high-risk area, we and other 
     insurance companies have concentrated our efforts on it,'' 
     said Julie Pofahl, director of risk management, Physicians 
     Insurance Co. of Wisconsin. ``Physicians are improving the 
     quality of care and their record-keeping in a variety of 
     ways, and as a result, we have seen lower frequency in 
     severity of claims.''
       Their work is paying off. Over the last four years, 
     premiums charged by physician-owned insurance companies have 
     fallen more for obstetrician-gynecologists than for any other 
     specialists, according to the Medical Liability Monitor, an 
     independent newsletter. In 1992, half the companies did not 
     change their premiums, while 35 percent reduced them an 
     average of 8.3 percent. In 1989, ob/gyns insured by 
     commercial and physician-owned companies also saw rates cut 
     an average of 14.5 percent; in 1990, 16.3 percent; and 1991, 
     10.9 percent.
       One risk management and quality assurance plan, Prenatal 
     Care, appears to be so successful in reducing obstetrics 
     claims that at least three insurance companies are providing 
     it free to any physician they insure, even though it costs 
     more than $500 per system and about $5.40 per patient for 
     materials.

  Then it continues.

       Only one claim has been filed against Colorado physicians 
     who used the system during the past 6 years, when it was used 
     for more than 70,000 pregnancies and births.

  One claim, one claim, in 70,000. And we have an amendment to try and 
escape from any kind of important liability of malpractice claim in 
``70,000 pregnancies and births, according to Arnold Greensher, MD, a 
codeveloper of the system. Nationwide, two claims have been filed in 
150,000 cases since the system was developed 14 years ago.''

       In Colorado, the quality assurance system is credited for 
     falling professional liability rates. Premiums fell from 
     $61,000 five years ago to $33,000 for obstetricians.

  This makes the case with regards to obstetricians. And they are 
identified as being the number one specialty in need. And here we have 
in the American Medical News that spells this out.
  Now the fact of the matter is obstetrics and gynecology had 
significant problems 10 years ago, in 1985, according to the annual 
liability claims for 100 physicians by the Specialty and Census 
Division. They were clearly the No. 1 in 1985, virtually double from 
anyone else.
  But since that time, they have had the greatest reduction, some 22.7 
percent, from all the other specialities.
  And that just makes the point that we made earlier and that is that 
the greatest problem that we are facing in terms of malpractice today 
is what is happening to the patients that are being left out in the 
cold and left behind.
  You know, before we begin to shed a great deal of tears for the 
insurance companies and for other medical professionals, it is 
important to recognize that you, the taxpayer, are picking up about $60 
billion a year in unpaid health bills as a result of malpractice. 
Someone has to pay. Many of these individuals are without any kind of 
health insurance or they lose their health insurance. Who do you think 
pays? It ends up being a burden on the system.
  And what we are being asked to do is further immunize the insurance 
industry that has experienced substantial profits from doing what they 
were charged to do, and that is to provide insurance in these areas.
  And second, and importantly, the McConnell amendment fails to take 
the kind of thoughtful steps that have been supported by Senator 
Jeffords, Senator DeWine, and others to take steps to prevent 
malpractice. We ought to be debating this afternoon what steps are 
being taken to prevent malpractice in the first place, to keep people 
healthy.
  I know my friend and colleague, Senator Wellstone, will be offering 
an amendment on that particular issue. We made some progress on it in 
the consideration of the bill before the committee, but not in this 
bill, not in the McConnell bill. That has all been left out.
  Why are we not trying to prevent malpractice before it takes place? 
Why are we not trying to find out through the data bank who the bad 
apples are?
  The data that is collected and sent to the National Practitioner Data 
Bank is information about malpractice cases and disciplinary actions 
taken against doctors. That information is made available to hospitals 
and to HMO's and to professional associations but is not made available 
to the general public. Why are we not making it available to the 
general public? Do you know the answer we heard in our committee? We 
cannot do that in the committee because the data bank is not insured 
enough.
  I showed in the course of our considerations a book that was 5 inches 
tall that is published by Public Citizen, ``10,000 Questionable 
Doctors.'' This book documents State by State information that is 
available to the public, about the number of licenses revoked, 
surrendered, or suspended; fines against doctors; criminal convictions; 
sexual abuse or sexual misconduct with a patient; substandard care; 
mis- prescribing or overprescribing drugs; drug or alcohol 
use; and other offenses.
  This is a matter of public record. It is collected in this document 
by Public Citizen and made available so people can find out about it. 
We want to make sure that it is done in a comprehensive way, updating 
information through the data bank. The consumers can find it if they 
can find this book. If they know the book exists and they know how to 
find it, they can look up various doctors.
  Why do we make it so difficult? Why, if we are trying to prevent 
malpractice, are we not giving information to the public? What are they 
scared of? What are the doctors scared about? What are they frightened 
of? We know. They just do not want to have that information available, 
which is understandable for 
[[Page S5788]] their profession, but do not say to us that a prime need 
for us on the floor of the U.S. Senate in a health care debate is to 
deny the American consumer the kind of information that is available 
already and should be made more accessible.
  The data bank ought to be strengthened. We had CBO studies and GAO 
studies about how its information can be strengthened. And it should 
be. That is something that we tried to do under the leadership of 
Senator Jeffords in our committee, which was included in the bill, 
though not as strongly as I would like to see.
  So there are some matters that I think are of importance that were 
considered in some very important debates and discussions in the 
committee; they are the kind of matters that ought to have been 
included or addressed in the McConnell bill.
  Mr. President, I want to take a few moments of the Senate's time just 
to review where we are on the issue of the insurance industry, and I 
refer to the National Insurance Consumer Organization report, which is 
a March 1993 report, because we now evidently are prepared to say that 
Montana does not know best how to treat these problems, or Wyoming does 
not know best how to deal with this; we need to have these Federal 
standards on the issue involving a doctor and his patient.
  I, quite frankly, think this is dramatically different from even the 
underlying bill, the tort liability bill, where you are talking about 
various products that go into a State. We are talking, in this 
circumstance, about the very sensitive personal relationship between a 
doctor and a patient. There are not many other relationships which are 
more important and more personal.
  We hear so much, we know what we really need locally. But, oh, no, 
the McConnell amendment is virtually going out to preempt State 
activities. So we have to know we have a declining need or declining 
burden on the profession, as we mentioned the OB/GYN, what the recent 
statistics show.
  Consider the number of gynecologists that are graduating from our 
fine medical schools. That number is not diminishing. The Department of 
Health and Human Services finds the relationship between needs and 
supplies in six specialities are far from having a shortage. There is 
actually an oversupply of obstetricians and gynecologists.
  I am glad to work with our colleagues about how we find out how to 
deal with underserved areas, but this is not the answer. You have the 
underserved areas. You have to deal with the burden a young person has 
when they graduate from college or from medical school, what their 
financial burden is, because they cannot make the sufficient resources, 
if they are going to go into a rural and underserved area, as they do 
in an urban area or in some of these specialities. You have to 
understand that they do not get the kind of support they would get if 
they would practice their medicine in one of the fine medical 
institutions. They are denied that.
  Third, they fall further behind their classmates in terms of 
upgrading their skills. That is troublesome.
  Fourth, in too many areas that are underserved, they do not have as 
good an opportunity for education for the children of these young 
people that want to go to school, and the parents, as dedicated as they 
are, do not want to disadvantage their children.
  There are a whole series of reasons. But to tie in the fact that we 
have underserved areas in this country and that the principal reason is 
because of the insurance to the OB/GYN just does not hold.
  Mr. President, I want to just again refer to the studies that were 
done by the various State organizations, insurance associations and 
their review of what is happening on medical malpractice insurance in 
their particular States. One of the States that they have reviewed is a 
State that has a number of the features that have been included in the 
McConnell amendment, and this is what they point out.
  In 1991--and I will include the appropriate parts of this study in 
the Record for reference for Members over the weekend --in 1991, 
insurers writing medical malpractice insurance in the United States 
earned a return of $1.419 billion or 15.9 percent of net worth. This is 
the profit after dividends to doctors and hospitals of 4.2 percent, 
over $200 million. Investment income amounts to almost 50 percent of 
premium, due to lost reserve. Economists testified in insurance rate 
matters that returns of 13 to 16 percent on net worth are appropriate 
for this line of insurance. Here it is for this line of insurance, 13 
to 16 percent guaranteed. I think most Americans would want to have 
that kind of investment if they could be assured of that kind of 
profit.
  According to studies undertaken by the California Department of 
Insurance, properly capitalized insurers should hold only about a 
dollar of net worth for every dollar of premium for this line of 
insurance. This is medical malpractice.
 Had insurers not retained so much previous profit, America's medical 
malpractice insurance return on net worth would have been 29.2 percent. 
Mr. President, 29.2 percent--a remarkable high return--which is almost 
double the profit required to reward the risk of underwriting medical 
malpractice. And in the six States that undertook tort reform, studied 
by the GAO office, profits in 1991 averaged 122 percent above the 
national average, implying possible insurer profiteering in these 
States.

  (Mr. SANTORUM assumed the chair.)
  Mr. KENNEDY. It is those provisions which are basically and 
fundamentally included in the McConnell amendment, at a time when you 
have 100,000 Americans that are dying, you have no pressure in terms of 
the increased premium costs, a decline in judgments and in the number 
of cases that are brought. And in the six States which have effectively 
brought about these kinds of no joint and several--the collateral 
charges, the limits on the fees for doctors and all the rest, they are 
having 122 percent above the national average. Here we are debating a 
health matter before the U.S. Senate, with all of the health issues 
that are affecting working families in this country, for all those 
parents that are going to go home tonight and wonder whether they are 
going to still have jobs because of downsizing or cutbacks in defense, 
or because of all the challenges in our economy, wondering whether they 
are going to have it; or whether those families know whether they are 
going to get it tomorrow, or the 800,000 new children are not covered 
on the basis of last year alone.
  Here we are taking action that is going to provide that kind of a 
guarantee to the insurance industry. I thought we were here to 
represent the working families, working men and women, the children, 
the older people. We hear the reports that are coming out of our Budget 
Committee about further cutbacks in Medicare for elderly people. That 
is an enormously important problem. I think we ought to have some 
adjustments if it is part of an overall and comprehensive reform. But 
here in the first order of business in the Senate we are looking out 
after these insurance companies. This has to be a matter that must be 
of concern to all Americans.
  I will include the segments of the most recent report which came out 
in the last 2 days, Mr. President. I will mention just one interesting 
observation about the most recent reports. Insurance companies have now 
reduced malpractice liability premiums commensurate with a drop in 
malpractice claims payments in recent years in California and the 
Nation. Insurance companies have reaped excessive profits--in 1993, 
paid out 38 cents of every premium dollar.
  Well, Mr. President, that is what we are addressing here. We will 
hear a great deal about, well, can we not do something about the person 
that is the victim of malpractice? Yes, we can and we should. That is 
why out of our Human Resources Committee last year we came out urging 
the States to have alternative dispute resolutions, and to build on the 
existing programs adopted in the States that go for early resolutions, 
to experiment with practice guidelines and enterprise liability, even 
no-fault liability programs, all of those matters to try and look out 
after the consumer. All of that has passed and gone out. All of that 
experimentation is out. All of the efforts to try and prevent 
malpractice, all of those are out. All we are dealing with is bottom-
line issues. What is going to happen on the bottom line for those 
medical insurance companies? That is the issue. Let us not fool 
ourselves about it.
  [[Page S5789]] A recent article that gives a characterization of 
malpractice coverage in a stable condition says this--and this is 
Business Insurance, March 28, 1994, 2 months ago:

       Insurers view medical malpractice, hospital professional 
     liability, and related coverage as profitable lines these 
     days, Broker says. In fact, some insurers are looking to 
     increase malpractice accounts in an attempt to offset the 
     meager earnings in the commercial market.

  There is more capacity and there are more players than 3 years ago. 
More market and capacity than there were 3 years ago. It seems like 
every month a new insurer wants to underwrite medical liability and 
coverage for health care organizations.
  Is this what we are hearing from our colleagues that are crying 
crocodile tears about all of our specialties that cannot do it and are 
not able to serve our poor, underserved people in this country? That is 
hogwash. See what the insurance industry says, not what some of us who 
have serious concerns about this whole kind of approach say. Look at 
what Business Insurance says about it. It seems like every month a new 
insurer wants to underwrite medical liability coverage for health care 
organizations. As long as companies are making profits that exceed the 
average property casualty profit line, they will want to underwrite 
this coverage.
  In other words, boys and girls, you want to get on the gravy train, 
get on the malpractice gravy train, as it is today. We are going to 
even make it better for you with the McConnell amendment.
  Mr. President, we must have other measures which are of greater 
urgency and importance for us to be addressing than that particular 
measure.
  It seems to me that at the appropriate time--and I see others that 
want to address the Senate--I will offer the amendment which I offered 
in the committee, which basically was the substitute amendment which 
was accepted unanimously last year in the Human Resources Committee by 
all Republicans and Democrats.
  Let me tell you what it is about. It is a reasonable question to say, 
all right, we know what you are against. We have problems. What are you 
for?
  Let me briefly summarize what this amendment would do.
  The amendment that I will offer at an appropriate point is identical 
in content to the malpractice reform subtitle of the health care 
reform, favorably reported by the Labor Committee. It seems to me that 
this is the appropriate vehicle to report to the full Senate because it 
was the product of carefully measured bipartisan deliberation. In that 
regard, it stands in sharp contrast to what the measure is that is 
before the Senate this evening.
  Many of the current members of the Labor Committee will remember that 
we spent the better portion of 2 days thoroughly discussing and 
improving the malpractice title of the health care bill. For example, 
there was considerable debate about the preemption issue. We resolved 
that by accepting a Coats amendment striking preemption language that 
had been in the original mark.
  It was a debate in a series of amendments regarding attorneys' fees 
and the result was a deliberative process. We limited those fees from 
the percentage that originally appeared in the Clinton bill. We 
sharpened the State demonstration programs authorized in the bill, 
adding a proposal by Republicans to explore no-fault liability 
programs. That said, if you have injury, you are able to collect right 
away; you do not have to prove negligence, and you can be reimbursed 
right away. It will not be as much as if you had gone through a court 
procedure, but you will get resources quickly in response to medical 
injury. A few States are doing that. We are encouraging that as a way 
to assist fellow citizens and to see whether it works. Eventually, we 
reached a bipartisan consensus on sensible medical malpractice reform 
provisions.
  There are some who wish to go further in the area of damage caps, 
which my impression of the language in that subtitle, was broadly 
acceptable to every member of the committee.
  The reforms the Labor Committee approved last year included mandatory 
alternative dispute resolutions; a limitation on attorney's contingency 
fees, collateral source reduction, periodic payments of awards, a State 
option to require certificates of merit before filing actions, and 
State demonstration projects to determine alternative approaches to 
malpractice.
  These are meaningful, major kinds of reforms to the system that we 
had, and not only with regard to the malpractice. We had important and 
significant reforms in the areas of preventive health care, which I 
will not get into at this time.
  These are the provisions we all agreed upon. They are sane, rational 
reforms which we crafted ourselves over lengthy bipartisan 
deliberation.
  Although I would greatly prefer to see them included in a far more 
reaching health reform bill that would guarantee health security, they 
remain acceptable to me as an alternative to the measure which we are 
considering on the floor of the Senate. They will improve the 
malpractice system without unduly limiting the right of consumers to 
compensation for injuries sustained as a result of negligent medical 
care.
  I submit that it is preferable to adopt these carefully consider 
reforms, rather than rushing to approve a bill that we have not 
sufficient time to address.
  Now, Mr. President, it seems to me that that is a responsible, 
thoughtful product of give and take by Members, that come here with a 
wide variety of different thinking on the issue of malpractice reform.
  We saw considerable debate that took place for a day and a half in 
our committee. We were able to make some adjustments. Still, it was not 
reported out in a bipartisan way. Nonetheless, we made some progress. 
That has effectively been discarded.
  At an appropriate time I will offer that amendment perhaps as a 
second-degree amendment to the McConnell amendment. An additional 
amendment, Mr. President, that I intend to offer, would make clear that 
the reforms in this bill do not preempt State law.
  I see the Senator from West Virginia. I have about 10 more minutes. 
If the Senator had a statement or intervention to make, I would be glad 
to yield, but otherwise if it is agreeable, it would be about 10 more 
minutes.
  The preemption amendment would make clear that the reforms in the 
bill do not preempt State law, but apply in situations where there is 
no relevant State law. But where a State legislature has enacted a 
reform or affirmatively chosen not to enact to reform, the State's 
choice would prevail.
  We hear much from the new majority in Congress about the States 
rights and the decentralization of power. We see proposals to turn over 
the administration of Federal entitlement programs to the States in the 
form of block grants, and we are told that there is much wisdom in 
State governments which are closer to the people than the Federal 
Government. However, in this bill, the opposite philosophy prevails.
  Suddenly States cannot be trusted. States cannot even be allowed to 
write the laws to govern consideration of tort cases that have been 
their responsibility for over 200 years, about 100 years, recognized in 
court opinion.
  Apparently in this area, Congress has all of the answers. It is 
especially strange that this bill preempts State laws very selectively. 
Only laws that benefit consumers are preempted, while those that 
benefit doctors and insurance companies are allowed to stand. 
Preemption of State tort laws is generally disfavored, but this result-
oriented brand of preemption is especially unfair. One sided 
preemption. One sided.
  We can make the case on the issues of tort that States should be able 
to make their own judgments. That is certainly the conclusion that we 
reached last year. However, in this particular program they say, all 
right, the States can make it as long as they are making what is 
favorable to the industry and not the consumer. That is the bottom 
line.
  It is one-way preemption against the consumer, against those working 
families, against those children, against those parents, in favor of 
those insurance companies that are making the record profits.
  There is a product liability bill on the floor, and I have serious 
concerns about many aspects, but at least there 
[[Page S5790]] is a plausible basis for Congress to create Federal 
standards to govern the liabilities of manufacturers who sell products 
in a nationwide market.
  Undoubtedly, interstate commerce is at stake in the context of 
product liability, but the medical malpractice is typically a legal 
dispute between an individual, between his and her doctor, within the 
boundaries of a single State. Interstate commerce is hardly at the 
heart of the transaction, so there is no justification for imposition 
of Federal standards.
  When we considered malpractice in last year's health bill, Members of 
both sides of the aisle were anxious to protect the reforms that their 
legislatures had enacted. Everyone recognized the need to proceed 
slowly for overturning 200 years of law in 50 States, and by unanimous 
vote we deleted that language that would have preempted inconsistent 
State lawsuits.
  The amendment basically carries forward that valuable lesson from 
last year's debate that States that the basic principle, that this bill 
does not preempt State law. If a State has taken no action in a 
particular area, this Federal law will apply; but if a State has found 
a better way to address a problem in light of conditions in that State, 
we should not substitute a Federal solution in a field that States have 
occupied for 200 years of American history.
  So there would be a preemption amendment. I would hope that this 
would be successful. There are other approaches that have been 
mentioned, by Senator Abraham and others, who have addressed that.
  Finally, I would just say that many were absolutely amazed at the 
inclusion of a loser-pays concept, included in the legislation which 
was included in the bill that was before our committee. I understand it 
has been changed. I think, wisely so.
  We could be in the extraordinary case where an individual was able to 
win their case in the courts, and because they had not accepted a 
previous kind of offer, effectively would have been required to pay the 
attorney's fees for the other side, even though they got a finding that 
there had been negligence and they had been endured medical 
malpractice.
  Now, the loser-pays system has been a part of English law. There is 
an excellent article from the bar association, recently pointed out, 
and as the Economist magazine, one of the distinguished magazine 
commentaries both on American and English public affairs has pointed 
out, they are moving in the direction of the United States for well-
documented reasons. And that is because the unfairness and injustice 
that that creates.
  We had a proposal before to move in their direction. It was not 
enough to have the punitive damage caps or the repeals of joint and 
several, which have been out there for many years which had loser pay. 
We had one-way preemption and we have no access to the data bank.
  That was the major flaw--the cap on punitive damages, no matter how 
egregious the circumstance was going to be, in spite of the high 
standard that would have to be reached in order to be able to claim 
punitive damages, the repeal of joint and several so that even in a 
circumstance we could see the tragic circumstances where that 
individual in Florida that lost one leg, he was also a diabetic, so he 
was disabled. Hence, he did not have the loss of much wages and 
economic damages. Since he is getting disability, the disability was 
paying in, that would be an offset to what the insurance would have to 
pay if there was negligence in that particular case. That is absolutely 
crazy. That is absolutely crazy.
  Those are the kinds of circumstances. When we have joint and several, 
and we eliminate those, and we eliminate the payment, the legitimate 
payment, to those individuals that ought to be decided on the basis of 
the jury, someone pays--and it is the American taxpayers--$60 billion. 
That is who ends up paying, if the insurer that is supposed to provide 
that kind of coverage, and is obligated to do so, if they are in the 
insurance business, does not do so.
  We also know the dangers of adding onto that the collateral 
provisions, which in many instances diminishes in a dramatic way the 
payments to individuals who otherwise would be entitled to payments in 
a court of law. That has been a factor.
  Then one of the most extraordinary matters we were facing in our bill 
is, even if you got the punitive damages, if you were able to get some 
punitive damages, part of those punitive damages were going to go to 
fund some quality control measures. That made absolutely no sense at 
all.
  So I hope we will have a chance. We are glad to work with the 
leadership to try to get an orderly way of addressing some of these 
issues. It is not our intention--at least not my intention--to delay 
Senate action. But I do think we just had the measure that came up this 
afternoon when many of us were over on the Judiciary Committee. My 
colleague, Senator Simon, and other members of our committee were at 
the Judiciary hearing on terrorism; and we had the mark-up on the 
Judiciary Committee earlier today on regulatory reform, which a number 
of us are involved in. We want to meet our responsibilities. But on 
important measures like this, the Senate is entitled to at least give 
some consideration to matters which are going to have an enormous 
impact on fairness and on justice and on the quality of health care for 
the American people.
  One of the aspects of health challenges that we are faced with--we 
have the issue of access and the availability of health care. We have 
the costs of health care, the fact that it continues to rise. From $1 
trillion, it will double by the year 2002 to $2 trillion. We have to do 
something about getting a handle on those health care costs. We have to 
do something in terms of making it available, particularly to the 
children. Of the 40 million people who have no health care coverage, 
about 15 million children in our country have no health care coverage. 
We have to do something about those. But we have to do something about 
quality as well, and this is something that deals with quality and it 
is a step backwards, not a step forward. And it should not be accepted.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, what is interesting about all of this 
is that the business at hand is something called the Product Liability 
Fairness Act. I want to be very frank about my disposition towards the 
amendment which is at this moment before us.
  This is not a unique situation in the Senate. Senators have the right 
to come forward and offer amendments to legislation that are outside 
the scope of the legislation before the Senate. We have seen that done 
ever since I came to the Senate, from both sides of the aisle. And sure 
enough, Senators from Kentucky and Connecticut and Wyoming are using 
their rights to ask the Senate to decide whether to attach a series of 
provisions dealing with malpractice to a bill dealing solely and only 
with product liability.
  An entire day disappears. Whether there is passage or not, it will 
not be a part of the final version of this legislation. It will get 
vetoed, it will get taken out one way or other. It is an exercise of 
folly, which is sad. And I will express my views.
  I am deeply committed, as committed as anybody in this body, to 
health care reform. And I see malpractice reform as an integral part of 
the solution to the crisis that faces the self-esteem and the condition 
of our physicians, our hospitals, and the American people, and I think 
of those in my own State of West Virginia in particular.
  Mr. President, I have watched the Senate come very close to the point 
where we might enact a product liability bill during the past 6 years. 
We actually got 60 votes several years ago; 60 was written down on the 
table here in front of us. The majority leader at that time, under the 
rules, stopped the vote and we spent the next 45 minutes while he found 
two Senators who had voted yes to change their votes to no. So we lost.
  Now that we have 20-minute votes, that is much harder to do. I am 
very happy for that. But we have come very close. And I take product 
liability reform extremely seriously. I think it is something that 
needs to happen both for consumers and for businesses in this country. 
I think it is important for America. I think it is important for the 
American people. I take product liability seriously and anything which 
comes in the way of product liability, 
[[Page S5791]] and a chance--and perhaps the last chance that we ever 
have--to assemble a coalition that is willing to go for this. Now we 
have other amendments.
  You have to understand, as I am sure the President does, that people 
better start making a decision around here. Do you want to have the fun 
of making wonderful speeches and putting on what I think is very good 
legislation, amendments in terms of malpractice reform? Or do you want 
to have product liability? You are probably not going to have both.
  Today has been interesting. I did not schedule a lot because I 
thought we were going to be dealing with product liability, and all of 
a sudden we are dealing with something called malpractice reform that 
has to do with health care.
  Now the Senator from Massachusetts is talking about a whole series of 
amendments, so I assume this will go on for a long time. There are some 
people in this body who have not yet quite decided whether this bill, 
called product liability reform, is in fact good public policy. That 
may be more on this Senator's side than the side of the Presiding 
Officer. But there are some people who have not quite decided whether 
this bill should be used to enact good public policy on product 
liability.
  Or are we just making points about other things that we are 
interested in? Which I might be interested in. But at some point people 
have to make a choice. Are we going to do product liability or are we 
going to do a whole series of things which then end up negating the 
chance to get product liability?
  I have been working on product liability for 9 years; some have for 
13. I made a variety of tabling motions yesterday to express very 
clearly my view about that. In fact, there was one that was a Heflin-
Rockefeller amendment, which does not comport with the natural 
tendencies that surround product liability. I am trying to make the 
point that I want this to be a pure product liability bill.
  The Senator from the State of Washington, Senator Gorton--
extraordinarily skillful, extraordinarily insightful, extraordinarily 
disciplined--believes, as I do, that if we are going to get 60 votes to 
stop the filibuster that will surely be there and will come at some 
point, it is going to be very close. And he agrees that we should 
focus, as I agree we should focus, on product liability.
  It is a very complicated subject. It is a very complicated subject to 
explain, particularly when explained by a nonlawyer such as myself, 
much less a skilled lawyer such as my colleague from the State of 
Washington.
  The majority leader can schedule a separate time, its own special 
time to take up malpractice reform such as the malpractice reform 
legislation that, in this case, was adopted just on Tuesday by the 
Senate Labor Committee. But in good conscience I, as manager on the 
Democratic side of the aisle, cannot take the risk when the chances are 
good of enacting product liability reform, making reforms to a broken, 
dysfunctional product liability system --that these will all be torn 
asunder, weakened, scattered about by a series of other amendments, in 
this case dealing with a very, very important subject called 
malpractice reform. I do not have any choice but as to my conclusion, 
and at the appropriate time I will move to table this amendment and the 
underlying amendment, and other amendments associated with it. I have 
no choice.
  With cosponsors from both sides of the aisle, with a long history of 
strong support in this body, Senator Gorton and I have been on this 
floor all week talking about our rather grave concern about the 
problems in the current patchwork of unpredictable, unfair matters 
associated with product liability. This Senate has before it a very 
carefully constructed bill to improve the system to make it less 
costly, to make it more predictable, to make it more fair for everyone. 
And enacting product liability reform is what I believe the goal should 
be for the Senate at this moment, as of all of this day, as of all of 
the moments that remain.
  Yesterday, as I indicated, we moved to table a number of amendments 
which were related to a legal system and lawyers, but were beyond the 
scope of product liability legislation. So I moved to table them. The 
malpractice reform amendments offered today are analogous to previous 
broadening amendments which were offered and then tabled.
  I hope that we can reach an agreement on a course of action that 
provides for a meaningful debate on the pros and cons of malpractice 
reform, and in the near future. As I have indicated, I think if we 
could do this before July 4, it would be very, very good. That might be 
an option which would address any concern that there will not be 
another timely opportunity to deal with malpractice reform.
  The medical community in my State wants malpractice reform more than 
anything else that exists. They want it desperately. I also do. Given 
another moment on another day, a bill in the range of what has been 
presented this day would have my vote; that is, the kind of amendment 
on malpractice which has been presented by Senator McConnell would have 
my vote. I would argue for it vociferously. I might disagree with some 
of the points that have been made about it, but not the majority of its 
provisions. I hear from doctors all the time, I hear from hospitals all 
the time about the importance of malpractice reform to them as 
essential health care professionals in my State. We have had ongoing 
dialog on this issue, and I know I can say that I understand what they 
want. I understand the problems of health care.
  I have done a lot of work on health care over the last 8 years or so. 
I very much want to be able to improve the climate for practicing 
medicine in West Virginia for all providers. I want to do all I can to 
make sure that we have an adequate supply of all needed health care 
professionals in my State, particularly OB-GYN's and health care 
providers which are in short supply in almost every county--in some 
counties in the State of the Presiding Officer; in most counties in my 
State.
  I also believe good malpractice reform will help improve the quality 
of health care services in my State, malpractice reform can be in the 
best interests of patients and their health care professionals alike.
  What is interesting is that malpractice is also a state of mind 
preventing a lot of people from going into medicine. There are a lot of 
doctors now who have told me they do not want their sons or daughters 
to go into medicine. It is not worth it, they say. Every patient they 
face is a potential litigant. We are a litigious society, sadly and 
shockingly so.
  Yesterday, I had a long visit with Dr. Jim Todd, executive director 
of the American Medical Association; Dick Davidson, of the American 
Hospital Association; and Tom Skully, of the Federation of American 
Health Systems, another group representing a large number of hospitals 
in this country. They said nationwide the doctors and hospitals whom 
they represent, and that is a very large collective membership, want 
strong malpractice reform enacted as soon as possible. I shared with 
them my strong desire to help toward passage of that end. But let me 
say that we cannot do both things at the same time.
  If we pass medical malpractice and it is incorporated into the 
product liability bill, some votes from this side will fall off and the 
entire tree will collapse. You put too many decorations on a Christmas 
tree, and at some point the bow simply falls and everything drops off.
  I do not think it is very complicated. I think this really is a test 
of who wants product liability reform and who does not. I can 
understand the opponents of product liability reform adding on all 
kinds of amendments. I can understand that to deter, to generally 
scatter attention, and to dilute. But I cannot understand those who 
favor product liability doing that.
  This is not just a question of the House agenda, the Contract With 
America. There is a lot of concern on my side, Mr. President, about 
this bill--it is very real on my side--that it is going to be loaded up 
with what came over from the House. I think one of the things that the 
other side is learning now is that, if they were to put forward a 
series of amendments, they will not get as many votes as they thought 
they would, and the votes really will not be there to do the job. It 
will not be there on our side, almost 
[[Page S5792]] for certain, and they will not be there on the other 
side.
  So here we are. I may not agree with every provision of malpractice 
reform advanced by some. But I want to see it done. I want that clear. 
This is, in a sense, my issue as much as any issue in this body. I have 
physicians, hospitals, and others--and patients in West Virginia--who 
need to have this happen. I just want to be certain that no one 
misunderstands my position. Despite the concern that other Members have 
expressed about attaching malpractice reform onto product liability, I 
have no intention of ducking the issue of the need to deal with 
malpractice reform. I understand what is going on.
  I am interested in why the Senator from Kentucky chose to offer his 
original malpractice bill as an amendment as opposed to what was marked 
up in the Labor Committee. The majority of the provisions of Senator 
McConnell's bills are ones which most of us supported in the past on 
one piece of legislation or another. I am also interested in hearing 
the rationale for Senator Thomas' second-degree amendment regarding 
rural care.
  But, in the end, I just return to Senator McConnell's underlying 
malpractice reform amendment and I say, do we not have to choose? I 
feel we do. We cannot have it both ways. I fear that, if this 
amendment, as much as I might be interested in it, were to prevail, it 
would peel off votes from my side of the aisle, and product liability 
would lose. I do not want that to happen. The Senator from Washington 
does not want that to happen. It has been our pledge from the beginning 
that we are going to try to keep this bill as clean as possible; 
clean--only product liability. Anything outside, we work against.
  So I hope my views on this are understood. I repeat that at the 
appropriate time, I will move to table the various amendments that deal 
with this subject.
  I thank the Presiding Officer and I yield the floor.
  Mr. JEFFORDS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. I wish to comment just briefly on the comments of the 
minority manager of the bill. I wish to assure him that coming from a 
State that suffered as much from the problems of product liability 
reform, having lost much of our machine tool industry and a big cause 
of that being the big differences between the liability of our own 
businesses in this country and those of our foreign competitors, I will 
not do anything in any way to destroy the opportunity to have product 
liability pass, and I think I speak for the Members on my side of the 
aisle.
  However, I feel I must bring to his attention and the attention of my 
colleagues that there is a very noncontroversial aspect of the 
McConnell amendment which, if passed, would move us a long way towards 
two very important matters in the health care area. First of all, it 
would assist in preventing medical malpractice, which is probably the 
most important thing we can do. What we want to do is to provide the 
opportunity to gather the information which would be necessary to be 
able to prevent the occurrence of malpractice by having sufficient 
guidelines and information available to doctors so that the number of 
incidents of malpractice will be decreased.
  And second is to protect consumers. We are moving into an area right 
now where we have managed care throughout this country. Health care 
reform is going on. Notwithstanding the fact that we failed to pass 
anything of any substance last year, health care reform is going on. 
But the managed care concept raises real serious problems for consumers 
as to how they can be protected when they get into situations where 
choice of the doctor may not be what they intend or even available to 
them. How can they get information on what is available to see if the 
care they are going to get or the doctor or physician they have is one 
that is qualified?
  So I am referring to a part of the McConnell amendment that is under 
subtitle B that is called ``Protection of the Health and Safety of 
Patients,'' and most particularly section 32, which is entitled, 
``Quality Assurance, Patient Safety, and Consumer Information.''
  We are now in the information age, and with all of the computer 
internets, all the information that is able to flow back and forth, we 
have an opportunity to give to the health care providers the ability to 
know what is good care and what is not good care, to have information 
on outcomes to be able to determine as to what should be done and what 
is good care and what is not good care.
  All this bill does is to provide an organized system for obtaining 
this information in various ways and making it available for those 
purposes. No one disagrees with that.
  So I would hope, if nothing else, we can include these things which 
are totally noncontroversial to this bill if it should prove the 
malpractice provisions otherwise might bring the bill down. What it 
does is establish an advisory panel to coordinate and evaluate methods, 
procedures and data to enhance the quality, safety and effectiveness of 
health care services provided to patients. No one disagrees with that.
  In order to do that, the panel that would be set up will assure that 
the members of the panel include representatives of the public and 
private sector, entities having expertise in quality assurance, risk 
assessment, risk management, patient safety and patient satisfaction.
  What it does, it establishes these objectives, again for which there 
is absolutely no problem with anyone.
  The survey shall include gathering data with respect to, first, 
performance measures of quality for health care providers and health 
plans; second, developments in survey methodology, sampling, and audit 
methods to try to determine what is going on; third, methods of medical 
practice and patterns and patient outcomes; and fourth, methods of 
disseminating information concerning successful health care quality 
improvement programs, risk management and patient safety programs, 
practice guidelines, patient satisfaction and practitioner licensing, 
all things we know are essential to be able to give us the kind of 
information we must have to protect the consumer and as well to give 
guidance to the medical profession to reduce the opportunity for 
malpractice.
  In addition, ``the administrator shall * * * establish health care 
quality assurance, patient safety and consumer information guidelines. 
Such guidelines shall be modified periodically. Such guidelines shall 
be advisory in nature and not binding.''
  So we are not doing anything that anyone can disagree with but will 
be so important to provide the information that is necessary, made 
available through internets and whatever else, to ensure that we are 
getting the best care possible that is available. So I do not think 
anyone can disagree with these provisions which the McConnell 
substitute attempts to accomplish.
  So I would urge my colleagues, be assured that there are many good 
things that are noncontroversial and very important to the improvement 
of our health care system which are in the McConnell substitute and 
which are not things that should give us any concern at all.
  So I hope, as we go forth here, if the minority manager of the bill 
is correct in that malpractice is going to be so controversial that it 
will not pass, that something which the sooner we get started the 
sooner we will be able to prevent medical malpractice and the sooner we 
give protection to consumers ought to go forward in some way along with 
this bill rather than have to wait, so that we can get to the business 
of providing that kind of information and that kind of assistance to 
both practitioners and to consumers.
  Mr. President, I yield the floor.
  Mr. WELLSTONE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, might I ask, are there other colleagues 
who want to speak right now? If not, I wonder if I could suggest the 
absence a quorum for a moment with the understanding that I would have 
the floor.
  Mr. DOMENICI. Mr. President, I am going to speak at length, but I 
would like to take 2 minutes now and then I will sit down and come back 
later or whatever time is available. Could I do that?
  Mr. WELLSTONE. Mr. President, that would be fine.
  [[Page S5793]] The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, later on I will speak to the overall 
issue of judicial and jury reform as it applies to civil litigation in 
the United States, but I thought I might just tonight express for the 
Senators at least what my head tells me about this system. I was 
looking around for some judicial stalwart who might have addressed the 
issue, and I found that Supreme Court Justice Lewis Powell described 
punitive damages as follows:

       It invites punishment so arbitrary as to be virtually 
     random.

  Now, the reason I bring that up is because I believe that it is 
absolutely true, and so what we get in certain advertisements across 
the country and in statements in the Chamber, is the random damage 
award that was proper or somewhat proper. But we do not hear the 
hundreds that were randomly wrong, wherein the jury was taken advantage 
of by emotions and awarded huge punitive damages when they were not 
warranted. We also don't hear about the even bigger issue of what this 
does overall to our litigation system. Clearly it invites more 
litigation because the random winner may be a big winner.
  Now, what does the random nature of the potential for a big win mean 
to our litigation system? Mr. President, it means cases get settled 
that are not worth anything. That is obvious. A company has to settle 
lawsuits because they cannot take the chance of the random verdict.
  Now, I am very pleased that Justice Powell said it that way. I have 
said it is the worst way to regulate human behavior in America. If you 
are trying to find standards to have people hold their performance to, 
the worst way is to ask juries to set the standard. For nobody knows 
what it will mean and clearly juries have all the latitude in the world 
when you add punitive damages to the system. It leaves all kinds of 
impressions with those who are supposed to be bound in some way, by 
changing their conduct to a high or better standard.
  Now, the Justice went on to say the following, which sort of hits my 
last remarks: Because juries can impose virtually limitless punitive 
damages, in Justice Powell's words, they act as--And I say this to my 
good friend from Washington, let me quote it perfectly as he said it--
they act as a ``legislator and judge without the training or experience 
or guidance of either.''
  That is a pretty good way to say it. Who told juries what the 
standard of conduct is or what a company ought to pay if they violate 
some kind of standard of the ordinary man or ordinarily prudent man? No 
one. So they are told that by words that lawyers express, when they are 
not trained in the law and they are not trained in what kind of damages 
we ought to extract from people who do not behave according to a norm.
  So I come to the floor to laud those who are looking for reform in 
this system. And I specifically tonight just had a few remarks with 
reference to punitive damages. Clearly, there are cases where punitive 
damages should lie. On the other hand, there is not going to be a 
perfect solution to the dilemma we find ourselves in. If we conclude 
that since we cannot come up with a perfect system on punitive damages 
since there are a few cases that are entitled to extraordinary kinds of 
punitive damages for one reason or another, that we cannot solve that 
problem, we will never do anything.
  We will leave in place a system that is so arbitrary as to be 
virtually random. We will run around this country talking about that as 
if it were a real, bona fide, honest-to-God system when it is nothing 
like that. It is so arbitrary as to be virtually random. And that is no 
system. That is no system of assessing damages.
  Mr. President, obviously I have not been down here during the past 
week. Some will probably say, ``You have already said enough.'' But 
obviously, I will say a little more, because I have some pretty strong 
feelings about it.
  I close with a parting shot. I wonder if our Founding Fathers and the 
common law of England from which we continue to say we derived all 
these marvelous rights, I wonder if they ever would have had in mind 
that we would send a malpractice case of the type we are sending the 
juries, or product liability of the type we are sending to the juries. 
I believe if you had asked the Founders, they would have said, ``Of 
course not. They ought to be arbitrated by people who know something 
about it.''
  I yield the floor.
  Mr. WELLSTONE. Mr. President, I had a chance to speak at some length 
today, so I will not respond to my colleague from New Mexico. I 
appreciate his remarks. I tell him as a good friend, I should have 
known when he said it would be 2 minutes, it would be a little more 
than 2 minutes. But he is eloquent and he is a very, very important 
voice here in the Senate.
  Mr. President, I ask unanimous consent that the Thomas amendment be 
set aside so that I may offer an amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WELLSTONE. I thank the Senator from Washington.


                 Amendment No. 605 to Amendment No. 603

(Purpose: To modify provisions regarding reports on medical malpractice 
                data and access to certain information)

  Mr. WELLSTONE. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Minnesota [Mr. Wellstone] proposes an 
     amendment numbered 605 to the McConnell amendment No. 603.

  Mr. WELLSTONE. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       In section ____32(c)(1) of the amendment, strike 
     subparagraph (B) and all that follows through the end of the 
     section and insert the following:
       (B) an estimation of the degree of consensus concerning the 
     accuracy and content of the information available under 
     subparagraph (A); and
       (C) a summary of the best practices used in the public and 
     private sectors for disseminating information to consumers.
       (2) Interim report.--Not later than 1 year after the date 
     of enactment of this title, the Administrator shall prepare 
     and submit to the Committees referred to in paragraph (1) a 
     report, based on the results of the advisory panel survey 
     conducted under subsection (a)(3), concerning--
       (A) the consensus of indicators of patient safety and risk;
       (B) an assessment of the consumer perspective on health 
     care quality that includes an examination of--
       (i) the information most often requested by consumers;
       (ii) the types of technical quality information that 
     consumers find compelling;
       (iii) the amount of information that consumers consider to 
     be sufficient and the amount of such information considered 
     overwhelming; and
       (iv) the manner in which such information should be 
     presented;
     and recommendations for increasing the awareness of consumers 
     concerning such information;
       (C) proposed methods, building on existing data gathering 
     and dissemination systems, for ensuring that such data is 
     available and accessible to consumers, employers, hospitals, 
     and patients;
       (D) the existence of legal, regulatory, and practical 
     obstacles to making such data available and accessible to 
     consumers;
       (E) privacy or proprietary issues involving the 
     dissemination of such data;
       (F) an assessment of the appropriateness of collecting such 
     data at the Federal or State level; and
       (G) the reliability and validity of data collected by the 
     State medical boards and recommendations for developing 
     investigation protocols.
       (3) Annual report.--Not later than 1 year after the date of 
     the submission of the report under paragraph (2), and each 
     year thereafter, the Administrator shall prepare and submit 
     to the Committees referred to in paragraph (1) a report 
     concerning the progress of the advisory panel in the 
     development of a consensus with respect to the findings of 
     the panel and in the development and modification of the 
     guidelines required under subsection (b).
       (4) Termination.--The advisory panel shall terminate on the 
     date that is 3 years after the date of enactment of this 
     title.

     SEC. ____33. REQUIRING REPORTS ON MEDICAL MALPRACTICE DATA.

       (a) In General.--Section 421 of the Health Care Quality 
     Improvement Act of 1986 (42 U.S.C. 11131) is amended--
       (1) by striking subsections (a) and (b);
       (2) by redesignating subsections (c) and (d) as subsections 
     (d) and (e), respectively;
       (3) by inserting before subsection (d) (as redesignated by 
     paragraph (2)) the following subsections:
       ``(a) In General.--
     [[Page S5794]]   ``(1) Requirement of reporting.--Subject to 
     paragraphs (2) and (3), each person or entity which makes 
     payment under a policy of insurance, self-insurance, or 
     otherwise in settlement (or partial settlement) of, or in 
     satisfaction of a judgment in, a medical malpractice action 
     or claim shall report, in accordance with section 424, 
     information respecting the payment and circumstances of the 
     payment.
       ``(2) Payments by practitioners.--Except as provided in 
     paragraph (3), the persons to whom paragraph (1) applies 
     include a physician, or other licensed health care 
     practitioner, who makes a payment described in such paragraph 
     and whose act or omission is the basis of the action or claim 
     involved.
       ``(3) Refund of fees.--With respect to a physician, or 
     other licensed health care practitioner, whose act or 
     omission is the basis of an action or claim described in 
     paragraph (1), such paragraph shall not apply to a payment 
     described in such paragraph if--
       ``(A) the payment is made by the physician or practitioner 
     or entity as a refund of fees for the health services 
     involved; and
       ``(B) the payment does not exceed the amount of the 
     original charge for the health services.
       ``(b) Information To Be Reported.--The information to be 
     reported under subsection (a) by a person or entity regarding 
     a payment and an action or claim includes the following:
       ``(1)(A)(i) The name of each physician or other licensed 
     health care practitioner whose act or omission is the basis 
     of the action or claim.
       ``(ii) To the extent authorized under title II of the 
     Social Security Act (42 U.S.C. 401 et seq.), the social 
     security account number assigned to the physician or 
     practitioner.
       ``(B) If the physician or practitioner may not be 
     identified for purposes of subparagraph (A)--
       ``(i) a statement of such fact and an explanation of the 
     inability to make the identification; and
       ``(ii) the name of the hospital or other health services 
     organization for whose benefit the payment was made.
       ``(2) The amount of the payment.
       ``(3) The name (if known) of any hospital or other health 
     services organization with which the physician or 
     practitioner is affiliated or associated.
       ``(4)(A) A statement describing the act or omission, and 
     injury or illness, upon which the action or claim is based.
       ``(B) A statement by the physician or practitioner 
     regarding the action or claim, if the physician or 
     practitioner elects to make such a statement.
       ``(C) If the payment was made without the consent of the 
     physician or practitioner, a statement specifying such fact 
     and the reasons underlying the decision to make the payment 
     without such consent.
       ``(5) Such other information as the Secretary determines is 
     required for appropriate interpretation of information 
     reported under this subsection.
       ``(c) Certain Reporting Criteria; Notice to 
     Practitioners.--
       ``(1) Reporting criteria.--The Secretary shall establish 
     criteria regarding statements described in subsection (b)(4). 
     Such criteria shall include--
       ``(A) criteria regarding the length of each of the 
     statements;
       ``(B) criteria for entities regarding the notice required 
     by paragraph (2), including criteria regarding the date by 
     which--
       ``(i) the entity is to provide the notice; and
       ``(ii) the physician or practitioner is to submit the 
     statement described in subsection (b)(4)(B) to the entity; 
     and
       ``(C) such other criteria as the Secretary determines 
     appropriate.
       ``(2) Notice of opportunity to make a statement.--In the 
     case of an entity that prepares a report under subsection 
     (a)(1) regarding a payment and an action or claim, the entity 
     shall notify any physician or practitioner identified under 
     subsection (b)(1)(A) of the opportunity to make a statement 
     under subsection (b)(4)(B).''; and
       (3) by adding at the end the following new subsection:
       ``(f) Definitions of Entity and Person.--For purposes of 
     this section--
       ``(1) the term `entity' includes the Federal Government, 
     any State or local government, and any insurance company or 
     other private organization; and
       ``(2) the term `person' includes a Federal officer or a 
     Federal employee.''.
       (b) Definition of Health Services Organization.--Section 
     431 of the Health Care Quality Improvement Act of 1986 (42 
     U.S.C. 11151) is amended--
       (1) by redesignating paragraphs (5) through (14) as 
     paragraphs (6) through (15), respectively; and
       (2) by inserting after paragraph (4) the following 
     paragraph:
       ``(5) The term `health services organization' means an 
     entity that, directly or through contracts or other 
     arrangements, provides health services. Such term includes a 
     hospital, health maintenance organization or another health 
     plan organization, and a health care entity.''.
       (c) Conforming Amendments.--
       (1) In general.--The Health Care Quality Improvement Act of 
     1986 (42 U.S.C. 11101 et seq.) is amended--
       (A) in section 411(a)(1), in the matter preceding 
     subparagraph (A), by striking ``431(9)'' and inserting 
     ``431(10)'';
       (B) in section 421(d) (as redesignated by subsection 
     (a)(2)), by inserting ``person or'' before ``entity'';
       (C) in section 422(a)(2)(A), by inserting before the comma 
     at the end the following: ``, and (to the extent authorized 
     under title II of the Social Security Act (42 U.S.C. 401 et 
     seq.)) the social security account number assigned to the 
     physician''; and
       (D) in section 423(a)(3)(A), by inserting before the comma 
     at the end the following: ``, and (to the extent authorized 
     under title II of the Social Security Act (42 U.S.C. 401 et 
     seq.)) the social security account number assigned to the 
     physician or practitioner''.
       (2) Applicability of requirements to federal entities.--
       (A) Applicability to federal facilities and physicians.--
     Section 423 of the Health Care Quality Improvement Act of 
     1986 (42 U.S.C. 11133) is amended by adding at the end the 
     following subsection:
       ``(e) Applicability to Federal Facilities and Physicians.--
       ``(1) In general.--Subsection (a) applies to Federal health 
     facilities (including hospitals) and actions by such 
     facilities regarding the competence or professional conduct 
     of physicians employed by the Federal Government to the same 
     extent and in the same manner as such subsection applies to 
     health care entities and professional review actions.
       ``(2) Relevant board of medical examiners.--For purposes of 
     paragraph (1), the Board of Medical Examiners to which a 
     Federal health facility is to report is the Board of Medical 
     Examiners of the State within which the facility is 
     located.''.
       (B) Applicability to federal hospitals.--Section 425 of the 
     Health Care Quality Improvement Act of 1986 (42 U.S.C. 11135) 
     is amended by adding at the end the following subsection:
       ``(d) Applicability to Federal Hospitals.--Subsections (a), 
     (b), and (c) apply to hospitals under the jurisdiction of the 
     Federal Government to the same extent and in the same manner 
     as such subsections apply to other hospitals.''.
       (C) Memoranda of understanding.--Section 432 of the Health 
     Care Quality Improvement Act of 1986 (42 U.S.C. 11152) is 
     amended--
       (i) by striking subsection (b); and
       (ii) by redesignating subsection (c) as subsection (b).

     SEC. ____34. ADDITIONAL PROVISIONS REGARDING ACCESS TO 
                   INFORMATION; MISCELLANEOUS PROVISIONS.

       (a) Access to Information.--Section 427(a) of the Health 
     Care Quality Improvement Act of 1986 (42 U.S.C. 11137(a)) is 
     amended to read as follows:
       ``(a) Access Regarding Licensing, Employment, and Clinical 
     Privileges.--The Secretary (or the agency designated under 
     section 424(b)) shall, on request, provide information 
     reported under this part concerning a physician or other 
     licensed health care practitioner to--
       ``(1) State licensing boards; and
       ``(2) hospitals and other health services organizations--
       ``(A) that have entered (or may be entering) into an 
     employment or affiliation relationship with the physician or 
     practitioner; or
       ``(B) to which the physician or practitioner has applied 
     for clinical privileges or appointment to the medical 
     staff.''.
       (b) Additional Disclosures of Information.--Section 427 of 
     the Health Care Quality Improvement Act of 1986 (42 U.S.C. 
     11137) is amended by adding at the end the following 
     subsection:
       ``(e) Availability of Information to Public.--
       ``(1) Reports, guidelines and regulations.--
       ``(A) Initial report.--Not later than 3 months after the 
     date of enactment of the Health Care Liability Reform and 
     Quality Assurance Act of 1995, the Secretary shall prepare 
     and submit to the Committee on Labor and Human Resources of 
     the Senate and the Committee on Commerce of the House of 
     Representatives a report that contains recommendations for 
     improving the reliability and validity of such information.
       ``(B) Guidelines and regulations.--Not later than 180 days 
     after the date of enactment of the Health Care Liability 
     Reform and Quality Assurance Act of 1995, the Secretary shall 
     establish guidelines and promulgate regulations providing for 
     the dissemination of information to the public under sections 
     421, 422, and 423 of the Health Care Quality Improvement Act 
     of 1986. With respect to such guidelines and regulations the 
     Secretary shall determine whether information respecting 
     small payments reported under section 421 shall be disclosed 
     to the public. In addition, the Secretary shall ensure that 
     such information shall include information on the expected 
     norm for information reported under such section 421 for a 
     physician's or practitioner's specialty. Such expected norm 
     shall be based on assessments that are clinically and 
     statistically valid as determined by the Secretary, in 
     consultation with individuals with expertise in the area of 
     medical malpractice, consumer representatives, and certain 
     other interested parties that the Secretary determines are 
     appropriate.''.
       (c) Conforming Amendments.--Section 427 of the Health Care 
     Quality Improvement Act of 1986 (42 U.S.C. 11137) is 
     amended--
       (1) in subsection (b)(1), in the first sentence, by 
     striking ``Information reported'' and inserting ``Except for 
     information disclosed under subsection (e), information 
     reported''; and
     [[Page S5795]]   (2) in the heading for the section, by 
     striking ``MISCELLANEOUS PROVISIONS'' and inserting 
     ``ADDITIONAL PROVISIONS REGARDING ACCESS TO INFORMATION; 
     MISCELLANEOUS PROVISIONS''.

  Mr. WELLSTONE. Mr. President, I really look forward to what will be, 
I believe, broad-based support for this amendment.
  I say to my colleague from Washington, my understanding is that, 
hopefully, we will be able to submit amendments tonight, there will be 
time for debate on Monday, and sometime Monday we hope there will be 
votes on these amendments; is that correct?
  Mr. GORTON. Mr. President, the Senator from Minnesota is correct. 
That is what we are trying to do.
  Mr. WELLSTONE. Mr. President, let me simply say that this amendment 
deals with the National Practitioner Data Bank. The data bank contains 
really important information on adverse actions that are taken against 
doctors, and in some cases information on actual payments made in 
malpractice judgements.
  Mr. President, the problem is not most of the doctors in the country; 
most of the doctors are very good doctors. The problem is that this 
information right now is readily available to managed care plans and 
hospitals and medical societies but not available to consumers.
  I have talked with a number of colleagues on both sides of the aisle. 
I think that this amendment which I have worked on for some time now 
really is an effort to provide consumers with this kind of information. 
I think it will be well received.
  We have done some good work on, first of all, strengthening the data 
collection; good work in responding to some of the concerns that have 
been raised by doctors; very good work in terms of responding to 
concerns raised by consumers across the country and by many consumer 
organizations.
  Mr. President, the idea, of course, is that we would ask the 
Secretary of HHS [Health and Human Services], within 6 months to 
develop essentially a plan to make sure that this information is 
available to consumers so that they could have some sense about the 
record of doctors who are treating them.
  Unfortunately, sometimes, too many times--and I have some really 
heart-rendering testimony by citizens in the country that have, in a 
tragic way, been on the receiving end of this--you will have a doctor 
who will move, who will have had an adverse action taken against him by 
a State medical society or hospital as a result of whole patterns of 
malpractice, and then move to another State, and sometimes even change 
his name. Then the same kind of egregious practice is committed again 
at great harm to consumers. It happens too often.
  There is just simply no reason why in this, if you will, more highly 
sophisticated data entry and computer age, we cannot make this 
information available to consumers.
  I say to my colleagues, that we are not talking about cases in which 
somebody has just launched a complaint against a doctor. We are talking 
about cases where there has actually been an adverse action taken 
against a practitioner's license or clinical privileges or where there 
has actually been a malpractice payment made with the record being 
clear.
  So I have submitted this amendment tonight, and I look forward to the 
debate on Monday.
  In 3 months, the HHS Secretary comes back to the Senate and then 3 
months after that, the Secretary of Health and Human Services then has 
to have promulgated regulations to disclose the information to 
consumers in a useable way.
  So we have a real opportunity to do something that I think would be 
extremely important in preventing malpractice from taking place in the 
first place, which is really, I think, the goal of any kind of reform 
effort.
  I yield the floor. I thank the Senator from Washington for his 
courtesy.
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER (Mr. Bennett). The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, first of all, I note with interest the 
Senator from Minnesota's liberal interpretation of 2 minutes, as well. 
But it was well worth it when you listen to him, because I not only 
agree with his approach in this amendment, but his eloquence on the 
floor today and throughout this piece of legislation is a very 
important part of dealing with the amendment and dealing with what this 
bill is all about. So I appreciate his courtesy.


                           Amendment No. 603

  Mr. FEINGOLD. Mr. President, I rise today to oppose the underlying 
amendment offered by the junior Senator from Kentucky. I do so on the 
same grounds that I oppose the underlying legislation.
  This sort of liability reform is not needed, it is not justified, and 
it is certainly not fair to injured consumers and patients.
  I am very glad I was on the floor a few moments ago to hear the 
junior Senator from West Virginia indicate his intention to move to 
table this underlying amendment. Even though we may disagree on the 
underlying legislation as a whole, I am pleased to see his consistent 
effort to make sure that this bill does not get completely out of 
control and try to revamp our entire civil legal system when we are 
supposedly debating one particular aspect of it.
  Mr. President, I know that others have already spoken out against the 
underlying amendment and spoken directly to the question of how 
justified and how needed it is.
  I would like to add my voice to this particular chorus and make two 
points about this amendment and the direction it is taking us.
  First, I have to note with a lot of regret that the first issue 
raised in the new Republican Congress dealing with the tremendous 
health care dilemma this Nation is facing has to do with malpractice 
and health care liability reform.
  We are not talking about providing universal health care coverage to 
all Americans. We are not talking about legislation that says if you 
get sick, you have a right to see a doctor. We are not you talking 
about providing community-based, long-term care for the elderly and 
people with disabilities. We are not talking about addressing the 
skyrocketing costs of prescription medicines so the elderly will no 
longer have to choose between their prescription drugs and their food 
and heating bills.
  No, Mr. President, we are not talking about any of these issues that 
were so frequently debated by both parties last year. Everybody said 
they were important issues that merited our attention, but none of 
those have come forward in these months that we have been in the 104th 
Congress.
  We are not talking about these issues because it is the belief of 
some on the other side that most of our health care problems are based 
on the so-called liability crisis faced by doctors and hospitals.
  Mr. President, that is not to say it is not an important issue. That 
is not to say it does not deserve our attention in the broader context 
of health care reform. But I think that right now the 38 million 
Americans who do not have health insurance, if they hear this, must be 
saying, ``Are you kidding me?'' Because there are people who are 
walking around right now without health insurance at all. It might be 
the factory worker who has lost his job and his health insurance along 
with it. It might be the young mother who has a preexisting condition 
and is unable to find an insurer. It might be the young child who was 
paralyzed in an automobile accident and whose health benefits have run 
out because of an arbitrary cap.
  Instead of addressing true reforms that would actually improve some 
of these situations, we are instead debating an amendment that would 
limit the judicial remedies of those who have been the victims of 
malpractice and negligence by a few bad actors in the health care 
profession. Proponents have compared it to the malpractice reforms 
passed by the State of California several years ago, and there seems to 
be some disagreement about the actual success of those reforms in terms 
of their effect on liability insurance premiums and also about the 
overall costs to the California health care system.
  But there is one fact that cannot be disputed: Despite the so-called 
liability reforms in California, there are millions and millions of 
Californians 
[[Page S5796]] today who lack affordable and adequate health insurance. 
In fact, a recent study by the UCLA Center for Health Policy Research 
shows that there are 6.5 million Californians without health insurance; 
6.5 million people in one State. There are more uninsured children, 
workers, and families in California than there are residents of my 
State, and my State is one of the top 20 States in population. Almost 
23 percent of the State of California is currently uninsured, well 
above the national average of over 18 percent.
  What does this tell us? It tells us that these kinds of liability 
reforms are not that much help to those who are most at risk in our 
health care system. And it tells us that suggesting liability reform is 
beneficial or central to health care consumers is a little bit 
farfetched.
  But there is another point I want to make about this amendment. The 
supporters of this amendment have tried to make the argument that such 
reforms will save many health care dollars and, in the end, will be 
beneficial to all involved--health care consumers as well as doctors 
and administrators. This is analogous to the arguments put forth by 
supporters of the underlying legislation, that in the end, the reform 
on product liability laws will be of benefit to consumers as well as 
the manufacturers, who are principally to benefit.
  But they certainly are not beneficial or fair to the victims of 
negligence in the health care system. It seems that just about every 
day you pick up a newspaper and there is a story of some horrible 
tragedy that was needlessly caused by negligence, error or even worse. 
One recent headline in the Washington Post reads: ``Hospital Gave Two 
Men Fatal Overdoses.'' This Associated Press story describes how a 
Boston hospital just recently disclosed an incident in 1991 where two 
skin cancer patients were mistakenly given overdoses of a treatment 
drug. They were, in fact, given three times the recommended dosages. 
Both men first lost their hearing, then their livers and kidneys 
failed. Within weeks, both men were dead.
  According to this news account, there have been at least 10 
chemotherapy dosage errors since 1990 in hospitals located in eastern 
Massachusetts. Six of those patients have died.
  Mr. President, for me, it is the case of Karin Smith that most 
reminds me of the tragedies that often take place in the health care 
system and often needlessly.
  Karin Smith was just 22 years old and an ambitious certified public 
accountant living in my State in Nashotah, WI, when she first went to 
her HMO concerned about some vaginal bleeding she had experienced of 
late. For 3 years, Karin tried to convince her doctors at her HMO that 
she was sick. She made 15 office visits and 10 phone calls.
  At one point, she had bled for 35 straight days before passing out. 
During this time, the HMO took three Pap smears and sent them out to a 
clinical laboratory to be analyzed. Unfortunately, the results were 
misread.
  How were they misread? It turns out that the director of the 
laboratory had paid the lab's technician on a piecework basis for 
reading Pap smears. In 1989, the technician had read 31,000 slides for 
the laboratory in question and another 16,000 slides for a different 
laboratory. That is a total of 47,000 slides just in 1989. The American 
Society of Cytology recommends a maximum of 12,000 slides a year for 
the sake of quality control.
  So this person had overdone this practice to the detriment, 
potentially, of his or her ability to do the job right four times more 
than the recommended amount of slides.
  In 1991, Karin left her HMO and saw a gynecologist outside of that 
plan. Within 2 weeks, her doctor correctly diagnosed Karin as having 
advanced cervical cancer. Last summer, Karin testified before a Senate 
subcommittee looking into the health care problems facing our country. 
I would like to read very briefly from the statement Karin gave that 
day, Mr. President. Karin said:

       Although the doctors at my HMO kept telling me I was 
     basically OK, I knew better. My only alternative was to see a 
     gynecologist outside of the plan, who immediately suspected I 
     had cervical cancer. His suspicions were confirmed by a 
     surgeon shortly after our initial visit.
       Had my cancer been diagnosed at the time the first Pap 
     smear was misread by my HMO, I would have had a 95 percent 
     chance of survival. However, due to their gross incompetence 
     and shameful errors, I am now dying.
       I am only 28 years old and am told by my doctors that I 
     will probably not live to see my 30th birthday. My cancer has 
     spread through my lymphatic system, from my pelvis to my 
     abdomen, and as of 2 weeks ago to my neck. The fifth 
     vertebrae of my upper spine is so completely infiltrated with 
     cancer that at any moment I may become paralyzed.
       Since my diagnosis 2\1/2\ years ago, my life has been 
     consumed by one horrifying medical procedure after another. I 
     have endured three separate courses of radiation, 6 months of 
     inpatient chemotherapy and seven surgeries. At times, I have 
     laid in a hospital bed, isolated from my family, friends, 
     even my husband, because my immune system was so suppressed 
     that a minor cold could destroy me, or my frail body was 
     riddled with infection, or radioactive materials were 
     implanted into my internal organs and I writhed in pain. . .
       Although the physical treatment has left me with 
     disfiguring scars from my pelvis to my neck, the emotional 
     scars cut much deeper. I'm so young, yet my career as a CPA 
     is over. . . I'm married to a wonderful man, but I'll never 
     bear his children. . . Our lives have been forever changed by 
     this unnecessary and senseless tragedy.
       In addition to myself, several other women in the Milwaukee 
     area have been forced to suffer this plight because of the 
     HMO's gross failure to provide safe and competent medical 
     care. One woman died last year, she was only 40. . . Her Pap 
     smear was misread just like mine. Another woman, whose tests 
     were also misread is just waiting to die.

  Those are Karin's remarks. In September 1993, Karin Smith wrote an 
op-ed piece in the Milwaukee Journal on the very issue we are debating 
today, tort reform. Karin did some extensive research for this article 
and found that in Wisconsin, between the years 1976 and 1988, just four 
physicians accounted for nearly 18 percent of losses paid in claims.
  In short, Karin discovered a trend in Wisconsin that reflected a 
national pattern, and that pattern is that a few bad actors in the 
health care field were causing a plurality of the problems. And instead 
of focusing on appropriate sanctions for these few individuals, we are 
instead considering limitations on the ability of injured consumers, 
such as Karin, to recover damages that will make them whole once again.
  Mr. President, last year I met Karin Smith in the reception room a 
few feet from where I am right now. Today, Karin Smith is dead. 
Unfortunately, Karin's fight against her cancer has come to an end. 
Karin Smith passed away in March of this year. She was 29 years old.
  On April 12, just weeks ago, the district attorney of Milwaukee 
County announced that he was filing criminal charges against the 
laboratory for the deaths of Karin Smith, as well as Dolores Geary, a 
40-year-old mother of three who also was a victim of the laboratory's 
errors.
 This is believed to be the first time that a medical laboratory as 
opposed to a doctor has been charged with a crime. In this case the 
crime is reckless homicide.

  Mr. President, I have spoken out today because Karin did everything 
in her power while she was alive to make her story known. She wrote 
letters to the newspaper; she testified before Congress, and she never 
stopped fighting for the rights of victims like herself. Karin Smith 
was the victim of not mere negligence or error but of reckless behavior 
by a few bad actors in what is otherwise an honorable and very 
dedicated profession.
  In the Milwaukee Journal Karin wrote:

       It is a common perception that tort reform is strictly a 
     battle between doctors and attorneys. What is painfully 
     ignored is that victims are in the middle of this war. This 
     is ironic, because these are the very people whom the tort 
     system was designed to protect.

  Mr. President, I could not have said it any better. It was designed 
to protect innocent consumers like Karin, the victims of that negligent 
behavior. Remedies should be available to make injured individuals 
whole again. It was not designed in order to protect the economic 
interests of those who are the cause of the injuries.
  Mr. President, I think it is relevant to briefly comment on how the 
underlying McConnell amendment would have affected the case of Karin 
Smith. For starters, the McConnell amendment would extend the cap on 
punitive 
[[Page S5797]] damages that is contained in the underlying bill for 
product liability cases to cases of medical malpractice. That means 
that had she not reached a settlement, a Wisconsin State jury would 
have been prohibited by Federal law from awarding more than $250,000 or 
three times the economic harm in punitive damages.
  Mr. President, what are Karin Smith's economic injuries? I am not 
sure, honestly. I do not know what the earnings of a CPA in her early 
twenties are. I know the parties involved should be punished for their 
actions, and, hopefully, with a strong enough sanction that will send a 
message to others in the health care system that such conduct will not 
be tolerated. In the end, this decision should be made by a jury in 
Wisconsin, comprised of everyday Americans, who for over 200 years have 
been capable of administering justice in a fair and equitable manner. 
Most importantly, how dare any Member of the U.S. Congress tell a 
Wisconsin jury that the appropriate punishment for the taking of Karin 
Smith's life must be no more than $250,000?
  Where does this Congress get the right to make that decision? That is 
not all this amendment would do. The extension of the elimination of 
joint liability for noneconomic damages to medical malpractice cases is 
equally mortifying for individuals who find themselves in the same 
predicament Karin Smith found herself in. I cannot even begin to 
imagine, Mr. President, what Karin's noneconomic damages were--her 
pain, her suffering. How do you put a price tag or a cap, for that 
matter, on Karin's inability to bear children and raise a family? How 
do you quantify the pain and suffering associated with a cancerous 
growth that spreads from your pelvis to your neck? I am not sure I 
could. I do not envy any judge or jury that would be charged with the 
responsibility of calculating that.
  But imagine if Karin's case had gone to trial, suppose the lab had 
misread Karin's test results and the HMO that sent the results to the 
lab were found to be liable in this case; suppose the lab became 
insolvent and was unable to pay the percentage of noneconomic damages 
that it was found to be responsible for? What would happen in that case 
under the underlying amendment? Should we watch out for the best 
interest of the HMO here and deny Karin her due compensation for the 
incredible degree of pain and suffering she went through? Should we say 
that the HMO is partly, if not largely, responsible for Karin's injury, 
and they must shoulder the responsibility for making sure that Karin 
and her family are adequately compensated?
  I think when you ask these questions in terms of the real people 
involved, the right answers become quite clear. Karin Smith was right, 
Mr. President. This is not really a battle between lawyers and doctors. 
The medical profession in this country is outstanding and should not be 
maligned because of the foolish actions of a few in the health care 
system. We clearly have a health care crisis in this country. Millions 
and millions are uninsured, costs are skyrocketing, and the health of 
our Nation is being compromised. I strongly urge the supporters of this 
amendment to join with those of us who believe that we need 
comprehensive health care reform, and we need it now. Only that kind of 
real reform will solve the problems that this amendment claims to 
address.
  Mr. President, I ask unanimous consent that two items be printed in 
the Record. The first is a statement that Karin Smith delivered at a 
Senate hearing last year, and the second item is the op-ed piece from 
the Milwaukee Journal in 1993.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                        Statement of Karin Smith

       My name is Karin Smith and I am grateful for the 
     opportunity to speak before this subcommittee on an issue 
     that is so crucial to us all. Today, I want to share with you 
     my personal story of how an HMO has cost me my life.
       I am a member of a staff model HMO called Family Health 
     Plan. It's headquartered in Milwaukee, Wisconsin and has 
     105,000 members.
       I am 28 years old and have advanced cervical cancer, which 
     is the direct result of a three year misdiagnosis by my HMO. 
     For three years, which consisted of 15 office visits and 10 
     phone calls, I complained about gynecological problems I was 
     experiencing. And even though my medical records were 
     documented with the classic physical characteristics and 
     symptoms of cervical cancer, no doctor at my HMO ever made 
     the correct diagnosis.
       Because of my continual complaints, the HMO did perform 
     three biopsies and three pap smears. All of which indicated 
     cancer. Yet, all but one were misinterpreted as benign by the 
     lab my HMO had contracted with.
       During those three years, my symptoms progressed rapidly. . 
     . Minor bleeding became profuse, accompanied by fatigue and 
     passing out. I was frustrated by the medical care I was 
     receiving and I was scared by what appeared to be an obvious 
     deterioration in my condition. Although the doctors at my HMO 
     kept telling me I was basically okay, I knew better. My only 
     alternative was to see a gynecologist outside of the plan, 
     who immediately suspected I had cervical cancer. His 
     suspicions were confirmed by a surgeon shortly after our 
     initial visit.
       Had my cancer been diagnosed at the time the first pap 
     smear was misread by my HMO, I would have had a 95% chance of 
     survival. However, due to their gross incompetence and 
     shameful errors, I am now dying. I am only 28 years old and 
     am told by my doctors that I will probably not live to see my 
     30th birthday. My cancer has spread, through my lymphatic 
     system, from my pelvis to my abdomen and as of two weeks ago, 
     to my neck. The fifth vertebrae of my upper spine is so 
     completely infiltrated with cancer that at any moment I may 
     become paralyzed.
       Since my diagnosis two and a half years ago, my life has 
     been consumed by one horrifying medical procedure after 
     another. I have endured three separate courses of radiation, 
     six months of inpatient chemotherapy and seven surgeries. At 
     times I have laid in a hospital bed, isolated from my family, 
     friends, even my husband, because my immune system was so 
     suppressed that a minor cold could destroy me, or my frail 
     body was riddled with infection or radioactive materials were 
     implanted into my internal organs and I writhed in pain.
       I have spent countless days and nights nauseated and sick 
     from both the radiation and the chemotherapy. The 
     chemotherapy alone, caused me to vomit almost every
      day for the six months I was in treatment. Every third week 
     I would be admitted into the hospital for six days where 
     drugs that made me so terribly sick would flow through my 
     body. I was bald for nearly a year and all of my 
     activities were severely restricted.
       Next week, I am scheduled to begin radiation to the left 
     part of my neck and under my left arm. One can only imagine, 
     in fear, what the side effects to this treatment will be . . 
     . And as my last hope, I am currently, awaiting news from my 
     doctors to find out whether or not, I am a candidate for a 
     bone marrow transplant.
       Although the physical treatment has left me with 
     disfiguring scars from my pelvis to my neck, the emotional 
     scars cut much deeper. I'm so young, yet my career as a CPA 
     is over . . . I'm married to a wonderful man but I'll never 
     bear his children . . . My parents will outlive their 
     youngest child . . . This hasn't only affected me. This has 
     shattered the lives of everyone around me. How does one 
     explain this to my husband, my parents, my sister and 
     brother, my friends . . . All of our lives have been forever 
     changed by this unnecessary and senseless tragedy.
       At this point, my personal medical future is plagued by 
     this nightmare. Now, I feel I must focus my concern on the 
     medical future of our country. If we allow HMO's to be the 
     foundation of the proposed medical system, we are encouraging 
     one of the most important professions of our country, to put 
     the financial interests of their bottom line before the 
     medical needs of their patients.
       It was no coincidence that the lab which was contracted by 
     my HMO performed inferior work, the owner was on the HMO's 
     board of directors and in order to retain the HMO's business, 
     he was forced to ``meet or beat'' lab prices from the 
     competition. I think that's what President Clinton now calls 
     ``managed competition . . .'' ALl of the contracts will be 
     negotiated this way.; It's a system that encourages the lab 
     to provide services at artificially low prices, which leads 
     to lack of quality control and excessive work loads.
       To add insult to injury, the technician who misread all of 
     my pap smears was reading 5 times the federally recommended 
     number of slides. She also worked at, as many as, four other 
     labs in Milwaukee at the same time. And when she was fired 
     from my HMO's contracted lab for falsifying records in 1991, 
     the HMO hired her directly to supervise their new in house 
     gynecological laboratory.
       In addition to myself, several other women in the Milwaukee 
     area have been forced to suffer this plight because of the 
     HMO's gross failure to provide safe and competent medical 
     care. One woman died last year, she was only 40 . . . her pap 
     smear was misread just like mine. Another woman, who's tests 
     were also misread is just waiting to die.
       We can't change my future. But I can give you a look into 
     your own. I am an example of what health care in this country 
     will become as proposed by the Clinton administration and it 
     horrifies me. I have experienced, first hand, the 
     overwhelming lack of continuity of care, lack of 
     communication, lack of responsibility, lack of accountability 
     and lack of humanity which are the hallmarks of managed care 
     plans in this country today.
       We all know that there is a serious health care crisis in 
     this country . . . no one should 
     [[Page S5798]] be denied access to care. We need a realistic, 
     rational health care system that will prevent financially 
     self interested groups from continuing to prey on 
     unsuspecting medical consumers. We need a health care system 
     that allows choice, provides accountability and incorporates 
     a serious medical malpractice prevention program. As a victim 
     of malpractice, I implore you . . . please do not let this 
     administration strip away the rights of victims like me. 
     Please let my HMO experience be your guide . . . Understand 
     that managed care is part of our health care problem . . . It 
     is not the solution.
                                                                    ____

              [From the Milwaukee Journal, Sept. 15, 1993]

         Tort Reform Isn't Solution To Easing Health Care Woes

                            (By Karin Smith)

       The President's health care proposal is going to be 
     released within the next few weeks. It is well known that 
     tort reform will be included in his package. There is 
     speculation that the proposed plan will limit pain-and-
     suffering awards for medical malpractice victims to $250,000. 
     This would not only be unconstitutional, but grossly unfair.
       Let me explain.
       Five years ago, I was a healthy, 22-year-old woman. Today, 
     I am a victim of both cervical cancer and medical 
     mismanagement. In 1988, I belonged to Family Health Plan 
     (FHP), a Milwaukee-based health maintenance organization. 
     When I began to experience vaginal bleeding, I sought care 
     from FHP.
       Between June of 1988 and May of 1991, my symptoms gradually 
     progressed from minor bleeding to profuse bleeding, to 
     fatigue and passing out. During this time, I made nearly 20 
     calls to doctors within my HMO to complain of the problems. 
     Also during this time, three Pap smears and three biopsies 
     were performed.
       Unfortunately, my cries for help were not heard, and all of 
     my laboratory tests, with the exception of one Pap smear, 
     were misread. When I left FHP in May of 1991 and sought the 
     opinion of a gynecologist outside of that plan, my diagnosis 
     was made within two weeks.
       Since my diagnosis two years ago, I have undergone five 
     surgeries, three separate two-month courses of radiation and 
     six months of chemotherapy. I was recently informed that 
     unless I have radical surgery this fall to remove a part of 
     my spine and replace it with a piece of my rib, I will 
     probably be paralyzed by spring.
       Because of the three-year delay in diagnosis, my chance for 
     cure has dropped from 95% to around 10%. Even if I am 
     fortunate enough to survive this tragedy, I will be plagued 
     with chronic health problems and a lifetime of uncertainty.
       Few would disagree that this is an egregious case that has 
     led to needless emotional and physical pain. Certain 
     legislators and health care specialists believe that my non-
     economic damages should be limited to $250,000. The state 
     Senate has passed a bill to that effect.
       According to the Health Care Financing Administration, 
     national health care expenditures total $675 billion. The 
     American Medical Association says doctors pay $5.6 billion in 
     medical insurance premiums. As an accountant, I can easily 
     calculate the cost of malpractice premiums to be less than 1% 
     of all health care expenditures. Even the Congressional 
     Budget Office has said that changing the medical liability 
     system will have little effect on total health spending.
       Furthermore, several states have already placed caps on 
     pain-and-suffering awards. History has shown this has not 
     reduced malpractice premium expenses. The reality is that 
     very few plaintiffs are awarded high amounts. In Wisconsin, 
     almost 70% of claimants have received no payment at all, and 
     only 85 claims have ever exceeded $200,000.
       It is important to mention that our country could save an 
     enormous amount of health care dollars by adopting a strict 
     national policy for disciplining doctors.
       In Wisconsin, between 1976 and 1988, the top 10 physician 
     defendants accounted for 2.4% of the 2,904 claims filed and 
     23% of the total payments made. During this time, four 
     physicians were involved in more than one claim over 
     $400,000. The four physicians accounted for 17.8% of all 
     losses paid in that year. Clearly, a small percentage of 
     doctors is responsible for a large portion of claim dollars.
       It is common perception that tort reform is strictly a 
     battle between doctors and attorneys. What is painfully 
     ignored is that victims are in the middle of this war. This 
     is ironic, because these are the very people whom the tort 
     system was designed to protect.
       The issue of capping pain-and-suffering awards comes down 
     to one question: Do we allow all citizens the right to a jury 
     trial at which their peers decide a fair level of 
     compensation for pain and suffering, based on the extent of 
     the individual's damages and the facts?
       If the answer is no, we are violating the constitutional 
     rights of the most seriously injured victims, while 
     protecting the careers of the most grossly negligent doctors.

  Mr. FEINGOLD. I thank the Chair and I yield the floor.
  Mr. GORTON. 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. DOLE. 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. DOLE. Mr. President, I advise my colleagues that it is our hope 
to have an agreement here in the next few minutes. And if the agreement 
is reached, then there will be no more votes this evening and no votes 
on Monday. There will be a number of votes starting at 11 o'clock on 
Tuesday morning, maybe as many as four or five.
  So I indicate to my colleagues that I do not believe there will be 
any more votes this evening. We will know for certain in matter of 
minutes.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DOLE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________