[Congressional Record Volume 141, Number 71 (Tuesday, May 2, 1995)]
[Senate]
[Pages S5931-S5941]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
COMMONSENSE PRODUCT LIABIL- ITY AND LEGAL REFORM ACT
The PRESIDENT pro tempore. Under the previous order, the Senate will
resume consideration of H.R. 956, the product liability bill, which the
clerk will report.
The legislative clerk read as follows:
A bill (H.R. 956) to establish legal standards and
procedures for product liability litigation, and for other
purposes.
The Senate resumed consideration of the bill.
Pending:
(1) Gorton amendment No. 596, in the nature of a
substitute.
(2) McConnell amendment No. 603 (to amendment No. 596) to
reform the health care liability system and improve health
care quality through the establishment of quality assurance
programs.
(3) Thomas amendment No. 604 (to amendment No. 603) to
provide for the consideration of health care liability claims
relating to certain obstetric services.
(4) Wellstone amendment No. 605 (to amendment No. 603) to
revise provisions regarding reports on medical malpractice
data and access to certain information.
(5) Snowe amendment No. 608 (to amendment No. 603) to limit
the amount of punitive damages that may be awarded in a
health care liability action.
(6) Kyl amendment No. 609 (to amendment No. 603) to provide
for full compensation for noneconomic losses in civil
actions.
(7) Kyl amendment No. 611 (to amendment No. 603) to place a
limitation of $500,000 on noneconomic damages that are
awarded to compensate a claimant for pain, suffering,
emotional distress, and other related injuries.
(8) DeWine amendment No. 612 (to amendment No. 603) to
clarify that the provisions of this title do not apply to
action involving sexual abuse.
(9) Hatch amendment No. 613 (to amendment No. 603) to
permit the Attorney General to award grants for establishing
or maintaining alternative dispute resolution mechanisms.
(10) Simon/Wellstone amendment No. 614 (to amendment No.
603) to clarify the preemption of State laws.
(11) Kennedy amendment No. 607 (to amendment No. 603) in
the nature of a substitute.
(12) Kennedy amendment No. 615 (to amendment No. 603) to
clarify the preemption of State laws.
(13) DeWine (for Dodd) amendment No. 616 (to amendment No.
603) to provide for uniform standards for the awarding of
punitive damages.
Mr. GORTON. Mr. President, we are now under a time agreement of 1
hour for the final debate on all of the second-degree amendments to the
McConnell amendment on medical malpractice.
Seeing no Senator prepared to debate, I suggest the absence of a
quorum and ask unanimous consent that it be charged equally against
both sides.
The PRESIDING OFFICER (Mr. Santorum). Without objection, it is so
ordered. The clerk will call the roll.
[[Page S5932]] The legislative clerk proceeded to call the roll.
Mr. ROCKEFELLER. 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. ROCKEFELLER. I thank the Chair.
Mr. President, as a chief advocate and sponsor and manager of the
product liability reform bill, which, as far as I know, is still being
debated on the floor, I want to comment on the situation on the floor
as I see it now.
From just about every corner of the Senate floor, an amendment of
some kind dealing with malpractice--not product liability, but
malpractice--has been offered. So much so, in fact, that we now have 12
amendments on malpractice in the pipeline. I am hoping that the Senate
will not have to vote on 12 amendments, and I hope indeed some of them
can be worked out, dropped, or whatever.
As I also said on Thursday when I last spoke, I share my colleagues'
interest in malpractice reform. In fact, I daresay that I more than
share my colleagues' interest on this subject. To me, it is part of the
problem with our health care system. It is intimately related to cost
and psychology and whether doctors' kids or anyone's children want to
go into medicine or not. And malpractice reform is something I want
very much to do. But I do not want to do it at the risk of killing
product liability reform. It is as simple as that.
I think if we were to adopt malpractice reform in conflict, not only
would it fail, but so would product liability. So in the interest of
bringing malpractice reform into the discussion, everything would lose.
We can win product liability on a clean bill, which Senator Gorton and
I want. But we cannot win product liability if there are substantial or
unsubstantial amendments attached to it, and malpractice reform is a
very substantial amendment. We cannot win both.
As I said, I think at some point Senators have to choose: Do they
want product liability reform? Do they want medical malpractice reform?
Do they want nothing? Of course, there are many who want nothing.
I just do not see 12 amendments on medical malpractice to a product
liability reform bill as the way to produce actual results, results
which will be signed into law. It may make a lot of people feel good to
offer their own iterations on medical malpractice to this bill. We have
had some terrific speeches.
As somebody trying to enact something called a product liability bill
for the last 9 years, it just does not make me feel very confident that
this is the route to actually enacting either product liability reform
or medical malpractice reform.
I repeat, I hope my colleagues understand this: If malpractice reform
were to pass, and I do not think it will, if it were to pass and become
part of the product liability bill, the product liability bill would
lose. It is 100 percent guaranteed it would lose. So we would lose
malpractice and we would lose product liability.
I do not understand that. I do not understand that. I think
malpractice reform ought to be pursued just the way a bipartisan team
of Senators have tried to enact this product liability reform bill. It
ought to be done in the same manner--separately. That is, by getting a
bill reported out of committee, onto the Senate Calendar, having the
majority leader call it up, debating it on its own terms and with the
time needed to work out any differences and issues that can be resolved
here in the Senate.
Trying to enact malpractice reform by amending a product liability
reform bill with enough issues of its own, for Heaven's sakes, just
does not make sense to me. Maybe I will be proven wrong. I think the
chances of that are almost zero percent. Maybe some kind of consensus
will emerge around here on what form of malpractice reform should be
attached to the product liability reform bill and we will suddenly have
about 70 votes for a bill with both.
That was the original conversation, because of the surge of that
nature in the House. People said malpractice will help products. That
is what Jim Todd with the American Medical Association said to me and
Dick Davidson of the American Hospital Association, and Tom Scully of
the Federation of American Health Systems. They all said that to me; it
will help.
All of the product liability alliance folks who surged in the House
make the same assumption about the Senate. We are just very different.
We are a very different body. It will not work here. This talk about
getting 70 votes for a bill with both--I am highly skeptical.
As somebody who has worked very hard, as have Senator Gorton and many
others here, on trying to enact product liability reform, I want to
send a very clear signal to the Senators and to the citizens who also
want to see a law enacted to achieve this result, this is no time for
loading up this bill--neither now with these malpractice amendments nor
after they have been disposed of. After they have been disposed of,
there will be a chance for more amendments. Then there will also be not
the time to load up the bill.
This is no time for amendment proliferation. This is no time to use
this bill to make speeches on other issues to try to satisfy other
interests, to try to feel good about writing amendments on other
priorities, like malpractice reform.
This is the time to focus on the job at hand, and it is called
product liability. We have a large, good group of Senators on both
sides of the aisle who are prepared to vote for product liability
reform, one of the most contentious issues that we face in any year in
which we take this subject up, which is every other year. Up until this
time we have lost every single year. We have lost nefariously, we have
lost flat out, we have just sort of lost, but we have lost. It has
always been close.
The majority of the Senate has always wanted product liability, but
we have just fallen short, for one reason or another, of cloture. This
year we can get it. This year we can do cloture and we can get a
product liability bill which, in turn, will put the opposition in
substantial disarray, and then we can move on to other aspects like
malpractice reform, securities, that kind of thing, all of which I
strongly favor, particularly malpractice.
So, again, this is the time to focus on the job at hand. I think that
malpractice reform, in fact, is such a serious subject that it deserves
far more attention than it has gotten. It deserves far more debate than
it has gotten.
I am not convinced that there are 10 percent of the Senators who will
vote on these amendments who understand what malpractice reform is all
about. I do not mean that to insult any of my colleagues, but just as I
think product liability reform is extremely complicated--particularly
for nonlawyers such as myself--malpractice becomes more so because we
are dealing with humans in a different way. It is a hard subject that
deserves a very serious effort, but not on this bill.
Again, and in concluding, I am more than anxious to take up a bill on
malpractice reform. I understand the urgency and the voices of the
doctors and the health care institutions in my State of West Virginia
and elsewhere. It is not right that it has to take so long to do
something about problems with malpractice. It is the No. 1 subject on
the minds of physicians, the No. 1 subject on the minds of hospitals.
They desperately want it.
It also is not right to pretend that we can act on malpractice reform
when trying to enact a serious piece of legislation on a different
issue, which is called product liability.
My hope is that we simply will concentrate on product liability, that
we will try to keep away amendments, that we will drive this thing
through to a conclusion and get one excellent piece of work done.
I thank the Chair. I yield the floor. Mr. President, I suggest the
absence of a quorum and ask the time be divided equally between the
opponents and the proponents.
The PRESIDING OFFICER. Without objection, it is so ordered. The clerk
will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GORTON. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S5933]] Mr. GORTON. Mr. President, I yield 6 minutes to the
Senator from Connecticut.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, we spent, now, 2 full days debating
this underlying medical malpractice amendment and numerous second-
degree amendments. I am privileged to be a cosponsor of the underlying
first-degree amendment with the Senator from Kentucky, [Mr. McConnell]
and the Senator from Kansas [Mrs. Kassebaum]. I would like to take a
few moments here to put this debate and the amendment in perspective.
Surprisingly, to my knowledge this is the first time the full Senate
has engaged in a real debate on medical malpractice reform, even though
this issue has been the subject of countless debates in State
legislatures throughout America going back to the 1970's, when I was
part of the State Legislature of Connecticut. I am pleased the issue
and the problem has finally come to this point, and I want to express
my admiration to my colleagues on both sides of this issue for the
thoughtful remarks they have made over the last days.
We have heard a variety of views expressed, of course, but I am
pleased to note there is broad agreement that our present system for
compensating patients who have been injured by medical malpractice is
ineffective, inefficient, and in many respects unfair. The system
promotes the overuse of medical tests and procedures and simply diverts
too much money away from victims. I know we have heard a lot of numbers
in the past couple of days, but to me the most important one is this:
Less than half of the money spent on medical malpractice in this
country goes to the victims of malpractice. Less than 50 cents of every
dollar that goes into the medical malpractice system in this country
goes to those who are injured as a result of malpractice.
So the aim of the amendment is not to protect doctors who are guilty
or health professionals who are guilty of negligence that injures
patients. Quite the contrary, the aim of the amendment is to make sure
that more, rather than less than half a dollar of every dollar that
goes into this system, goes to the patients who are injured and not to
those, including the attorneys, who are churning, moving the current
system.
We can argue about the numbers, obviously, but I hope most of my
colleagues will agree that the existing medical malpractice system does
contribute to the high cost of health care. The cost of liability
insurance has been estimated, the most recent number I could find, at
$9 billion in 1992. That is not money that just comes out of the air or
is printed by the Government; that is money that comes from everybody
who is paying premiums for insurance for health care.
The respected health care consulting firm Lewin-VHI has estimated
conservatively the cost of defensive medicine--this is beyond the $9
billion in premiums--but the cost of defensive medicine, which is to
say medicine practiced by health professionals not for what they take
to be the medical needs of their patients but defensively because they
are worried about lawsuits, is $25 billion a year. Again, that is $25
billion coming out of the pockets of everybody who is paying health
care costs.
That number may seem to some who look at the big picture of health
care spending somehow small. If it does, they have perhaps lost touch
with reality, because $25 billion is a lot of money. It is not small in
any sense. We can and should do something to reduce that number.
Taxpayers and health care consumers bear the financial burden of
those costs. I say taxpayers because we are paying for it in Medicare
and Medicaid and every other Government-supported health care program.
Tens of billions of dollars every year is not a trivial amount of money
to taxpayers and consumers in this country.
The underlying amendment we will vote on today will begin to address
the inefficiencies and perverse effect of our current malpractice
system by directing a greater proportion of malpractice awards to
victims, by discouraging frivolous lawsuits, and by enhancing programs
that are aimed at improving the quality of medical practice, which is
what this is all about.
The amendment will also improve consumer information, a key part of
preventing malpractice, by establishing an advisory panel to improve
quality assurance programs and consumer information. The panel will
also look at ways to strengthen the national practitioner data bank. My
colleague, Senator Wellstone, has offered an amendment that would open
the data bank without this review. I respectfully suggest that this
amendment goes too far too quickly, though I am sympathetic to the
goal.
I believe the underlying amendment sponsored by Senators McConnell,
Kassebaum, and myself will lead us appropriately down the path but will
do it with some also appropriate caution.
Mr. President, the underlying amendment is not new. It is not
radical. It is a very moderate proposal which contains provisions from
health care reform bills reported out of committees during the last
Congress with the exception of the statute of limitations.
With the exception of the statute of limitations, the 2-year time
limit does not include a statute of repose and a cap on punitive
damages which is identical to the cap in the underlying product
liability bill. Every provision in the pending first-degree amendment
was contained either in President Clinton's health care reform
proposal, the bill reported out of the Senate Labor Committee, or the
bill reported out of the Senate Finance Committee last year.
I agree with my colleagues who have argued that medical liability
reform is only a small part of health care reform. But it is a
substantial and important beginning. As both Democrats and Republicans
concluded last year, malpractice reform is an important part of health
care reform. Today we have an opportunity to take a modest and
reasonable proconsumer step forward on this problem.
I thank the Chair. I thank my colleagues, and I urge them to vote for
the underlying amendment.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. GORTON. Mr. President, I yield 5 minutes to the Senator from
Kentucky.
The PRESIDING OFFICER. The Senator from Kentucky is recognized.
Mr. McCONNELL. Mr. President, the opponents of this medical
malpractice amendment have wildly attacked it. But, this amendment is
very reasonable and moderate reform. In fact, if you compare it to some
of the proposals from last year's health care debate, you will see many
familiar provisions.
For example, the original Clinton Health Security Act contained a cap
on attorney contingent fees, collateral source reform, periodic payment
of damages, and mandatory alternative dispute resolution. The medical
malpractice provisions reported from the Finance Committee contained
joint and several liability reform, a cap on noneconomic damages, and
mandatory alternative dispute resolution with modified loser-pays for
those who go onto court and do not improve upon the ADR decision. By
omitting the cap on pain and suffering, this amendment does not go as
far as the Finance Committee's proposals which were reported out of the
committee, on a bipartisan basis.
During last year's health care debate, some argued for the Canadian
single-payer system. Canada's single-payer system also includes some
very strict rules on malpractice cases. While Canada's doctors do not
pay malpractice insurance premiums, they pay a membership fee to the
Canadian Medical Protective Association. In the United States, doctors
and hospitals buy malpractice insurance, costing tens of thousands of
dollars annually. And, according to the Medical Liability Monitor, more
than half of all doctors have experienced 9- to 15-percent increases in
their malpractice premiums in each of 1993 and 1994.
In Canada, noneconomic damages are capped at $240,000. The McConnell-
Lieberman-Kassebaum amendment does not cap noneconomic damages,
although Senator Kyl has an amendment pending to add a cap of $500,000.
In Canada, contingency fees are illegal in some parts of the country
and uncommon in the rest of the country.
[[Page S5934]] Our amendment sets a limit on attorney contingent fees,
to ensure that most of the award goes to the injured party.
In Canada, a plaintiff who loses, risks having to pay the defendant's
legal fees. This amendment contains no loser-pays provision.
So, Mr. President, in comparing this amendment to last year's efforts
on medical malpractice, as well as to Canada's law, we have very
moderate reform proposed here.
And, those who support product liability reform should support
medical malpractice reform. Enacting the underlying bill on its own
will, in my judgment, make the legal system more complex. What will
happen in a case where the injured party alleges malpractice over
certain drug treatment? It product liability reform is enacted, the
drug company will fall under the new law, but there will have to be a
separate lawsuit regarding the conduct of the doctor or hospital. Such
a result would be ridiculous.
The opponents assert that we are somehow trying to shield negligent
doctors and hospitals. Nothing could be further from the truth. No one
loses the right to sue under this amendment. An injured party will be
fully compensated for his or her injuries. Negligent doctors and
hospitals will be held accountable for the injuries they cause.
In addition, this amendment takes important steps in the direction of
assuring quality care for all patients.
While protecting the rights of the injured to get compensation for
their injuries, this amendment also gives the American people relief
from the tort tax. We know the litigation tax adds thousands of dollars
annually to the household budgets of all American families. It adds
extra costs to the delivery of a baby, as well as to the cost of a
heart pacemaker.
Relief from the tort tax and an end to the lawsuit gamble are the
goals of our effort. We know that most of the money spent in the
litigation system does not go to the injured victims; they get only 43
cents of every dollar spent in the liability system. The legal system
is akin to the casinos of Las Vegas and Atlantic City. Sometimes you
win big, but most times the house--that is the system, made up of
lawyers and related court costs, is the biggest winner.
The only opponents we have in this legal reform fight are the trial
lawyers. They have the biggest stake in maintaining the status quo. The
injured people they represent will be treated better under this
amendment. They will get more compensation for their injuries. So, if
you are for the victims, you should vote for this amendment. I urge my
colleagues to adopt the McConnell-Lieberman-Kassebaum amendment.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. ROCKEFELLER. Mr. President, I yield 7 minutes to the Senator from
California.
The PRESIDING OFFICER. The Senator from California is recognized for
7 minutes.
Mrs. BOXER. Mr. President, I thank the Senator for yielding because I
know he and I do not agree on this issue. So it must be in some ways a
painful thing for him to yield to me. So I want to say to my friend,
Senator Rockefeller, I thank him very much for yielding me this time.
Mr. President, what are we doing here in the Senate today? We are
voting, beginning to vote, to change a legal system that, while not
perfect, is adjudged to be the best in the world. We are not tinkering
around the edges. We are not dealing with frivolous lawsuits. We are in
essence, if you follow the Contract With America, taking away the
rights of average citizens to get justice in the courtroom. And what I
find most remarkable about this in this Republican Congress is that
this is the same Republican Congress that says let the States decide
most matters, they are closer to the people. But in this case, the U.S.
Senate and the House of Representatives, well, we are going to
substitute our judgment for that of a local jury, a local judge, who
knows the community, who is of, by, and from the community. I do not
think we should be able to prejudge what a damage award should be,
whether it is in a medical malpractice case or whether it is in a
product liability case, the underlying bill.
Let me give you an example. Most Americans were stunned to hear that
a physician in Florida in treating a gentleman actually cut off the
wrong leg of that man. It meant that they had to then cut off the other
leg and the man lost both legs.
In the debate on this subject of capping the damages and what people
could receive in medical malpractice cases, a Republican Congressman--
who happens to be a doctor--took to the floor of the House. He has
served there for many years. And this Congressman was asked by another
colleague, a Democratic colleague, ``What do you think about the fact
that a physician cut off the wrong leg of a victim, and now this
gentleman has no legs at all?''
He can never hope to have anything like a normal life. And this
Republican doctor-Congressman said mistakes happen. These things
happen. And then he was asked, what is it worth, the fact that a man
has no legs and can never have the semblance of an ordinary life again?
And he said, mistakes will happen.
Well, he does not know what it is worth.
These things happen.
The fact is we do not know, but a jury and a judge together will make
that decision in accordance with State law. But, no, we are going to
destroy all of this.
Now, the story which all America shared, unfortunately, is not that
isolated. Although we know we have the best doctors in the world, the
most healing doctors in the world, this is not isolated. It is a very
small percent. Of all tort cases filed, only 7 percent are medical
malpractice. But we are going to take the iron fist of the Senate and
say we know best what a future victim should be awarded.
Now, let me tell you about a couple of cases. You also probably read
about Betsy Lehman, who died after given a massive overdose of a strong
chemotherapy drug. That story was publicized by the Boston Globe. Are
we to tell the family of this young woman what the damages should be to
that family? I think not.
How about Grand Rapids, MI? The wrong breast of a 69-year-old cancer
patient was negligently cut off during a mastectomy. In Denver, CO, an
anesthesiologist fell asleep during a routine operation on an 8-year-
old boy. The child died, and we are going to tell the people in
Colorado what that family should be awarded. I think there is something
misguided going on here.
I have to believe there is some special interests that are involved
here because the interests of the American people are not being served
because we are all potential victims. We are all potential victims.
At the New England Medical Center, two skin cancer patients died when
a highly toxic drug called Cisplatin was given to them at three times
the recommended dosage. In California, my great State, Harry Jordan
went into the hospital to have a diseased kidney removed. Instead, the
surgeons removed his healthy kidney, and he remained on dialysis for
the rest of his life. He died last month, and we are going to tell the
jury and the judge what to do in this kind of case.
We could go on with examples. The fact is we have the safest products
in the world, and we have the best physicians in the world. I have to
believe that our system of justice, although not perfect, has played a
role in this. And I say often to myself--and this has to do with the
underlying bill on product safety--how many of us remember engines
exploding in cars?
The PRESIDING OFFICER. The time of the Senator from California has
expired.
Mrs. BOXER. I ask for 1 more minute, if I might.
The PRESIDING OFFICER. The Senator from Washington controls the time.
Mr. GORTON. I will yield a minute to the Senator.
Mrs. BOXER. I thank the Senator so much. I say to my friends, I know
these are arguments they do not enjoy hearing, and I therefore
appreciate the generosity.
We all remember engines of cars exploding, company executives saying,
``Well, we figured we would have a few explosions. We write it off as a
cost of
[[Page S5935]] doing business.'' This Senate wants to limit the
punitive damages to those future companies that would act in such a
despicable fashion. Most of our companies are good and most of them
care, but the bad apples should know they will be hit with punitive
damages, not just a slap on the wrist. Should this Republican contract
pass, the most change will occur in the boardroom--not in the
courtroom, in the boardroom--as people are getting ready to put new
products on the market saying, well, we do not have to worry; the
Senate, the Republican contract saved us from being hit with a
meaningful punitive damages suit.
So in closing, Mr. President, I wish to again thank my colleagues. I
will be supporting some of these amendments that are coming before us
because they will make the bill a little better. I will be opposing
others. But nothing that we do here by way of amendment convinces me
that we are on the right path.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER. The Senator from Washington has 6 minutes
remaining.
Mr. GORTON. Mr. President, among other things, the distinguished
Senator from California spoke about special interests. I find that
remarkable in light of an article which appeared a couple of weeks ago
in the Wall Street Journal, and a followup report on campaign
contributions to congressional candidates which shows that the largest
single special interest involved in campaigns for Congress is the
American Trial Lawyers Association and its members. In their
contributions, they outdo the Fortune 500; they outdo organized labor;
they outdo, multiplied by 4 or 5 times, oil and gas lobbyists'
contributions. They are, by a significant margin, the No. 1 special
interest from the point of view of contributions to political campaigns
in the United States.
Now, Mr. President, I do not normally argue this point of view. I am
inclined to think that most of these lobbying organizations support the
people who are already on their sides. But to attack the legislation as
being special interest legislation, when the opponents are supported by
the largest of all of the special interests, seems to me somewhat
paradoxical.
Mrs. BOXER. Will the Senator yield? Will the Senator yield to me on
that point?
Mr. GORTON. This is particularly true----
Mrs. BOXER. Will the Senator yield to me on that point?
Mr. GORTON. No, not right now.
Mrs. BOXER. I will wait, thanks.
Mr. GORTON. This is particularly true, Mr. President, when we reflect
on the fact that it is that special interest which is the greatest
beneficiary of the present system as, of all of the money that goes
into medical malpractice, only 40 percent gets to the victims and 60
percent goes to the transactions costs; that is to say, the attorneys,
the expert witnesses, the insurance adjusters and the like who involve
themselves in the question.
The greatest amount of money by far goes not to victims but to
transaction costs.
In my view, that is the great scandal of the present system, whether
we are dealing with medical malpractice or with product liability. The
costs of the system outside of the compensation provided for any of the
parties is so overwhelmingly on one side that I think it would be those
who speak about victims and victims' rights who would be most in favor
of a dramatic and drastic reform of the present system, most in favor
of it, to create a system in which the transaction costs, the lawyer's
fees were dramatically less, and a much greater percentage went to
those who were victims.
I will be perfectly happy to yield to the Senator from California for
a question.
Mrs. BOXER. I thank the Senator very much.
Is the Senator aware that well over 100 organizations, including some
from his State, oppose this underlying bill very, very strongly?
Because I think what the Senator is doing in his remarks is leading
people to believe that there is one group that is opposed to it.
I read into the Record a number of groups the last time. Every single
consumer organization you can name, both State based and nationally
based: citizen action groups, public interest law people, Coalition of
Silicon Survivors, and Colorado DES Action. The DES sons also oppose
certain liability reforms.
What I wish to point out to my friend is I really respect his right
to disagree----
Mr. GORTON. I understand the question now.
Mrs. BOXER. I ask unanimous consent to put this list of people who
oppose this bill into the Record at this time, and I thank my friend
for yielding.
There being no objection, the list was ordered to be printed in the
Record, as follows:
State Based Organizations Opposed to ``Legal Reform'' in the Senate (S.
565)
Alabama Citizen Action.
Alaska PIRG.
Arizona Consumers Council.
Arizona Citizen Action.
Consumer Federation of California.
California Citizen Action.
Center for Public Interest Law at the University of San
Diego.
California Motor Voters.
California Crime Victims Legal Clinic.
California Public Interest Research Group (CALPIRG).
Fair Housing Council of San Gabriel Valley.
Colorado Coalition for Accountability & Justice.
Colorado Steelworkers Union Local 2102.
Coalition of Silicon Survivors.
Colorado DES Action.
Denver UAW.
Colorado ACLU.
Denver Gray Panthers.
Colorado Public Interest Research Group (CoPIRG).
Colorado Clean Water Action.
Colorado Senior Lobby.
Connecticut Citizen Action Group.
ConnPIRG (Connecticut Public Interest Research Group).
Delaware Coalition for Accountability and Justice.
Delaware AARP.
Delaware Council of Senior Citizens.
Delaware AFL-CIO.
Delaware Federation of Women's Clubs.
Delaware Women and Wellness.
Delaware Breast Cancer Coalition.
Building Trades Council of Delaware.
UAW Local 1183--Delaware.
Delaware Sierra Club.
Delaware Audubon Society.
Save the Wetlands and Bays--Delaware.
Florida Consumer Action Network.
Florida PIRG.
Florida Consumer Fraud Watch.
Georgia Citizen Action.
Georgia Consumer Center.
Citizen Advocacy Center of Illinois.
Chicago & Central States ACTWU.
Idaho Citizens Action Network.
Idaho Consumer Affairs, Inc.
Illinois Public Action.
Illinois Council Against Handgun Violence.
Illinois PIRG.
Citizens Action Coalition of Indiana.
Iowa Citizen Action Network.
Iowa UAW.
Iowa State Council of Senior Citizens.
Kentucky Citizen Action.
Louisiana Citizen Action.
Maine People's Alliance.
Maryland Citizen Action.
Maryland State Teachers Association.
Maryland Coalition for Accountability & Justice.
Planned Parenthood of Maryland.
Law Foundation of Prince George's County.
Maryland PIRG.
Maryland Sierra Club.
Teamsters Joint Council No. 62.
UFCW Local 400.
White Lung Association & National Asbestos Victims.
Sexual Assault/Domestic Violence Center, Inc.
IBEW Local 24.
Maryland Clean Water Action.
Maryland Employment Lawyers Association.
Health Education Resource Organization (H.E.R.O.).
Environmental Action Foundation.
Massachusetts Jobs with Justice.
Massachusetts Consumer Association.
Massachusetts Citizen Action.
MassPIRG (Massachusetts Public Interest Research Group).
Michigan Consumer Federation.
Michigan Citizen Action.
Public Interest Research Group in Michigan (PIRGIM).
Minnesota COACT.
Minnesotans for Safe Foods.
Missouri Citizen Action.
Missouri PIRG.
Montana PIRG.
Nebraska Citizen Action.
Nebraska Coalition for Accountability & Justice.
Nebraska Farmers Union.
Nebraska Women's Political Network.
Nebraska National Organization for Women.
United Rubber Workers of America, Local 286.
Communications Workers of America, Local 7470.
Nebraska Head Injury Association.
Nebraska Center for Rural Affairs.
[[Page S5936]] New Hampshire Citizen Action.
New Jersey Citizen Action.
White Lung Association of New Jersey.
New Jersey Tenants Organization.
Consumers League of New Jersey.
Cornucopia Network of New Jersey.
New Jersey DES Action.
NJPIRG (New Jersey Public Interest Research Group).
New Jersey Environmental Federation.
New Mexico Citizen Action.
Citizen Action of New York.
Essex West Hudson Labor Council.
Uniformed Firefighters Association of Greater New York.
Empire State Consumer Association.
New York Consumer Assembly.
Niagara Consumer Association.
North Carolina Citizen Action.
North Carolina Consumers Council.
North Dakota Coalition for Accountability & Justice.
North Dakota Public Employees Association.
North Dakota DES Action.
North Dakota Clean Water Action.
Dakota Center for Independent Living.
North Dakota Breast Implant Coalition.
North Dakota Progressive Coalition.
Laborer's International Union, Local 580.
Boilermaker's Local 647.
Ironworkers Local 793.
United Transportation Union.
Sierra Club, Agassiz Basin Group.
Plumbers & Pipefitters Local 338.
United Church of Christ.
Teamsters Local 116.
Teamsters Local 123.
Plumbers & Pipefitters, Local 795.
Workers Against Inhumane Treatment.
Ohio Citizen Action.
Ohio Consumer League.
Ohio PIRG.
Oregon Fair Share.
Oregon Consumer League.
Oregon State Public Interest Research Group (OSPIRG).
Pennsylvania Citizens Consumer Council.
Pennsylvania Institute for Community Services.
Victims Against Lethal Valves (V.A.L.V.).
Citizen Action of Pennsylvania.
Pennsylvania DES Action.
Pennsylvania AFL-CIO.
SmokeFree Pennsylvania.
PennPIRG (Pennsylvania Public Interest Research Group).
South Dakota Coalition for Accountability & Justice.
South Dakota AFSCME.
East River Group Sierra Club.
Black Hills Group Sierra Club.
South Dakota State University.
IBEW, Local 426.
South Dakota DES Action.
South Dakota Peace & Justice Center.
Native American Women's Health & Education Center.
Native American Women's Reproductive Rights Coalition.
South Dakota AFL-CIO.
UFCW Local 304A.
Yankton Sioux Tribe.
South Dakota Coalition Against Domestic Violence.
South Dakota Advocacy Network.
South Dakota United Transportation Union.
South Dakota United Paperworkers International Union.
Tennessee Citizen Action.
Texas Citizen Action.
Texas Alliance for Human Needs.
Texas Public Citizen.
Defenders of the Rights of Texans.
Vermont PIRG.
Virginia National Organization for Women.
Virginia Citizen Action.
Virginia Citizens Consumer Council.
Washington Citizen Action.
WASHPIRG (Washington Public Interest Research Group).
West Virginia Citizen Action Group.
Wisconsin Consumers League.
Wisconsin PIRG.
Wisconsin Citizen Action.
Center for Public Representation, Inc.
____
Organizations Opposed to ``Legal Reform'' in the Senate (S. 565)
(95 as of April 24, 1995)
Action on Smoking & Health.
AIDS Action Council.
Alliance Against Intoxicated Motorists.
Alliance for Justice.
American Association of Retired People (AARP).
American Bar Association.
American Coalition for Abuse Awareness.
American Council on Consumer Awareness.
American Fed. of Labor/Congress of Industrial Organizations
(AFL-CIO).
American Public Health Association.
Americans for Democratic Action.
Americans for Non-Smokers' Rights.
Arab American Anti-Discrimination Committee.
Association of Trial Lawyers of America.
Center for Public Interest Research.
Business and Professional Women.
Center for Women's Policy Studies.
Children NOW.
Citizen Action.
Citizen Advocacy Center.
Citizens Clearinghouse for Hazardous Waste.
Clean Water Action.
Coalition for Consumer Rights.
Coalition of Labor Union Women.
Coalition to Stop Gun Violence.
Command Trust Network.
Committee for Children.
Conference of Chief Justices.
Consumer Action.
Consumer Federation of America.
Consumers for Civil Justice.
Consumer Protection Association.
Consumers Union.
Democratic Processes Center.
DES Action USA.
Families Advocating Injury Reduction (FAIR).
Federation of Organizations for Professional Women.
Fund for a Feminist Majority.
Gray Panthers.
Handgun Control Inc.
Help Us Regain the Children (HURT).
Hollywood Women's Political Committee.
Intl. Assn. of Machinists & Aerospace Workers (IAM).
Intl. Brotherhood of Teamsters.
Intl. Ladies Garment Workers Union.
Intl. Longshoremen's & Warehousemen Union.
Institute for Injury Reduction.
Lambda Legal Defense & Education Fund.
Latino Civil Rights Task Force.
Mothers Against Sexual Abuse.
Motor Voters.
NAACP (Natl. Assn. for the Advancement of Colored People).
Natl. Asbestos Victims Legal Action Organizing Committee.
Natl. Association of School Psychologists.
Natl. Breast Implant Coalition.
Natl. Conference of State Legislatures.
Natl. Consumers League.
Natl. Council of Jewish Women.
Natl. Council of Senior Citizens.
Natl. Fair Housing Coalition.
Natl. Family Farm Coalition.
Natl. Farmers Union.
Natl. Gay & Lesbian Task Force.
Natl. Head Injury Foundation.
Natl. Hispanic Council on Aging.
Natl. Minority AIDS Council.
Natl. Organization on Disability.
Natl. Rainbow Coalition.
Natl. Women's Health Network.
Natl. Women's Law Center.
Native American Rights Fund.
Network for Environmental & Economic Responsibility.
NOW Legal Defense & Education Fund.
Nuclear Information and Resource Service.
People's Medical Society.
Prevention First.
Public Citizen.
Public Voice for Food & Health Policy.
Purple Ribbon Project.
Safety Attorney Federation.
Southern Christian Leadership Conference.
STOP (Safe Tables Our Priority).
The Sierra Club.
Third Generation Network.
Trauma Foundation.
UAW (United Automobile, Aerospace & Agric. Imp. Workers of
America).
U.S. Public Interest Research Group.
USWA (United Steelworkers of America).
Violence Policy Center.
Voices for Victims Inc.
Women Against Gun Violence.
Women's Institute for Freedom of the Press.
Women's Legal Defense Fund.
YWCA (Young Women's Christian Association).
Youth ALIVE.
The PRESIDING OFFICER (Mr. Campbell). The Senator from Washington.
Mr. GORTON. Mr. President, yes, the Senator from Washington is quite
aware of that list of organizations. Of course, there are all kinds of
organizations that are on both sides of this case. The point made by
the Senator from Washington was that overwhelmingly of these special
interests, the largest single special interest in the United States,
when one measures that influence by the amount of money put into the
political system, is ATLA, the trial lawyers.
This is not surprising, given the fact that they are the principal
beneficiaries to a considerably larger degree than the very victims
whom they claim to be representing. That is the point from the
perspective of organizations. The biggest special interest, the richest
special interest, the special interest that gives the greatest amount
of money leads the opposition to this view and contributes to many of
the other organizations which are opposed to it.
But that does not, as this Senator said, necessarily mean that they
are wrong or that the other side is right. When, however, we have a
system which hurts innovation, destroys American competitiveness in
some industries, and gives 60 percent of all the money in the system to
those who game the system rather than victims, there is something
wrong, and that something ought to be corrected.
preemption in the mcconnell-lieberman-kassebaum amendment
Mrs. KASSEBAUM. Mr. President, last week I spoke in favor of the
pending amendment on medical liability and addressed, very briefly, the
issue of Federal preemption.
[[Page S5937]] I want to take a few moments this morning to explain
more fully my reasons for supporting a limited Federal preemption of
State medical liability laws and to urge my colleagues to reject both
the Simon and the Kennedy preemption amendments to the underlying
McConnell-Kassebaum-Lieberman amendment.
Mr. President, the Federal Government has a significant stake in
reforming the health care liability system both because of the effect
of the system on interstate commerce and because of the enormous amount
spent by the Federal Government on health care.
Last Thursday, I spoke of the need to achieve some degree of
uniformity and certainty in the system. Without greater predictability,
insurance rates will continue to reflect the potential for unlimited
exposure to risk. And these higher insurance rates will continue to be
passed along to the American consumer.
the private sector deserves to benefit from the same type of
protections that the federal government has afforded itself
The Federal Government already has taken significant steps to limit
its own exposure for costs associated with health care liability. For
example, damages resulting from health claims disputes and redress in
claims dispute cases are limited for Federal employees receiving health
coverage under the Federal Employees Health Benefit Act [FEHBA], and
for Medicare beneficiaries. There are no punitive or extra-contractual
damages allowed under FEHBA or Medicare. See Hayes v. Prudential Ins.
Co., 819 F.2d 921 (9th Cir. 1987); Homewood Professional Care Ctr.,
Ltd. v. Heckler, 764 F.2d 1242 (7th Cir. 1985).
Moreover, responding to an outcry from Federal Community Health
Centers about skyrocketing malpractice insurance premiums, Congress in
1992 limited the exposure of centers and their providers to malpractice
claims by placing them under the Federal Tort Claims Act and taking
steps that go well beyond the reforms in this legislation. In addition
to having judgments paid from a Federal fund, that act: (1) allows
liability to be determined by a judge rather than a jury (28 U.S.C.
2402); (2) contains a 2-year stature of limitations that is more
restrictive than the one contained in this legislation (28 U.S.C.
2401); (3) prohibits the awarding of punitive damages (28 U.S.C. 2674);
(4) places a cap on lawyers' contingency fees of 25 percent of a
litigated claim and 20 percent of a settlement (28 U.S.C. 2678);
disallows prejudgment interest (28 U.S.C. 2674), and requires claimants
to exhaust administrative remedies before proceeding to court (28
U.S.C. 2675).
Mr. President, I believe that the private sector is entitled to the
same type of protections that the Federal Government has extended to
its own health providers.
as the largest single payer of health care services, the federal
government has a compelling interest in health care liability reform
While the Federal Government has limited its exposure to health care
liability claims in certain instances, large gaps remain. In
particular, liability for health care professionals and providers who
treat Medicaid and Medicare patients remain subject to uneven and
sometimes insufficient State medical liability reforms. One-third of
total health care spending in this country is paid by the Federal
Government. According to the Congressional Budget Office, Federal
spending for Medicare will reach $177 billion in fiscal year 1995,
while Medicaid grants to States will total $96 billion.
Therefore, I believe that there is a direct, compelling Federal
interest in reforming the Nation's outmoded medical liability system.
federal legislation is necessary because of the increasingly interstate
character of health care delivery
Moreover, some degree of uniformity is essential because health care
markets are becoming increasingly regional, if not national.
Telemedicine, by its very nature, is designed to overcome barriers to
the delivery of medicine, including long distances, geographic
limitations, and political borders. Some of the finest medical
facilities in the United States--such as the Mayo Clinic in Minnesota,
Stanford University in California, Barnes Hospital in Missouri, the
Cleveland Clinic in Ohio, and the Dartmouth Medical Center in New
Hampshire--treat patients from across the Nation, and around the world.
While I do not believe there is a need for absolute uniformity in all
aspects of the health care system, I do believe that some minimum level
of medical liability reforms are necessary to the continued development
of a cost-effective private health care system. This is particularly
true where, as under this legislation, insurers and other third party
payers may be sued as defendants in health care liability actions.
As health care providers continue to consolidate and form integrated
networks of care in response to market forces, economic pressure, and
emerging treatment patterns, the number of individuals who receive
health care services in one State while having them financed by
entities in another will continue to increase.
While health care services generally are delivered locally, this does
not necessarily mean that health care is delivered within State
borders. To the contrary: more than 40 percent of Americans live in
cities and counties that border on State lines; in 26 States, more than
half of the population lives in cities and counties that border on
State lines, and over 50 percent of the population in 26 States lives
in border cities and counties. In these areas, it is even more likely
that a patient will live or work in one State, receive health care
services in another, and have his or her bills paid by a third-party
payer in another State. A recent analysis of health services purchased
across State borders found, for example: First, that Vermont and New
Hampshire residents visit an out-of-State physician nearly one-quarter
of the time; second, that Wyoming residents visit out-of-State doctors
over one-third of the time, and third, that nearly 40 percent of the
patients admitted to Delaware hospitals travel from out of the State.
federal legislation is necessary because of state constitutional
impediments
Some have argued that this legislation is an unnecessary intrusion
into an area of the law that traditionally has been the domain of the
States. I would like to point out, however, that many of the opponents
of Federal medical liability reform are, at the same time, aggressively
challenging State tort reform efforts by arguing that the reforms are
unconstitutional under State constitutions. As a result, many States
have been frustrated in their efforts to pass meaningful tort reform.
For example: First, statutes of limitations in health care liability
actions have been held to violate State constitutions in Arizona;
second, limits on punitive damage awards in health care liability
actions have been held unconstitutional in Alabama, and third, periodic
payment schedules for damage awards in health care liability actions
have been held to violate State constitutions in Arizona, New
Hampshire, and Ohio.
preemption provisions in the mcconnell-lieberman-kassebaum amendment
Mr. President, the preemption provisions contained in the McConnell-
Lieberman-Kassebaum amendment are designed to give both the States and
the courts clear guidance as to the scope of the reforms contained in
the legislation.
The amendment does not preempt State laws that: First, place greater
restrictions on the amount of or standards for awarding noneconomic or
punitive damages; second, place greater limitations on the awarding of
attorneys fees for awards in excess of $150,000; third, permit a lower
threshold for the periodic payment of future damages; fourth, establish
a shorter period of time during which a health care liability action
may be initiated or a more restrictive rule with respect to the time at
which the period of limitations begins to run, or fifth, implement
collateral source rule reform that either permits the introduction of
evidence of collateral source benefits or provides for the mandatory
offset of such benefits from damage awards.
The amendment also states specifically that it should not be
construed to preempt any State law which: First, permits State
officials to commence health care liability actions; second, permits
provider-based dispute resolution; third, places a limit on total
damages awarded in a health care liability
[[Page S5938]] action; fourth, places a maximum limit on the time in
which such an action may be initiated, or fifth, provides for defenses
in addition to those contained in the act.
Last week and again yesterday, some of my colleagues argued that the
so-called one-sided preemption provisions contained in the McConnell
amendment were both novel and, somehow, unfair. I believe these
arguments are without merit.
For the record, I would like to make clear that the characterization
that all of the preemption provisions in the legislation are ``one-
sided'' is simply incorrect. Two examples are instructive. First, the
preemption provisions allow State collateral source reform measures to
differ widely from the provisions contained in the legislation. States
not only have the flexibility under the McConnell-Lieberman-Kassebaum
amendment to adopt evidentiary collateral source rules and mandatory
offset rules that permit introduction of collateral source benefits
after trial, but may, in fact, adopt a whole range of collateral source
rule reforms that are more favorable to claimants than those contained
in the amendment. Second, the amendment makes clear that State laws
limiting attorneys fees for awards of $150,000 or less may be both more
restrictive than the 33\1/3\ percent set forth in the legislation and
less restrictive.
In support of the preemption provisions contained in the McConnell-
Lieberman-Kassebaum amendment, I would like to note further the long
history of this Congress in setting minimum Federal standards and
allowing the States significant flexibility beyond those standards.
See, e.g., Clean Air Act Amendments of 1990, Pub. L. 101-549; Safe
Drinking Water Act, Pub. L. 93-523; Civil Rights Act of 1964, Pub. L.
88-352; Americans With Disabilities Act, Pub. L. 101-336.
Moreover, nearly every health care reform bill introduced last
Congress--including President Clinton's ``Health Security Act''--
contained this type of Federal preemption for medical liability
reforms. See, e.g., President Clinton's Health Security Act, H.R. 3600;
Senator Dole and Senator Packwood's health care reform bill, S. 2374;
Senator Chafee's Health Equity Access Reform Today Act, S. 1770;
Representative Cooper's Managed Competition Act, H.R. 3222; the House
Republican leadership plan, H.R. 3080; the bipartisan mainstream
coalition health bill, and the House bipartisan health reform bill.
Another recent and relevant example of liability reform legislation
containing the type of Federal preemption language included in the
McConnell-Lieberman-Kassebaum amendment is S. 1458, the General
Aviation Revitalization Act of 1994. That legislation provided in part
that no civil action for damages arising out of an accident involving a
general aviation aircraft could be brought against the manufacturer of
the aircraft or the manufacturer of any component part of the aircraft,
if the accident occurred more than 18 years after the date of the
aircraft's delivery or the component part's installation. S. 1458,
which passed the Senate on March 16, 1994 by a vote of 91 to 8,
preempts State law only to the extent that such law permitted civil
actions to be commenced after 18 years. See Public Law 103-298.
I believe that the underlying amendment is loyal to this tradition.
In conclusion, Mr. President, I would like to point out that many of
those who oppose the preemption principles embodied in this legislation
have repeatedly and enthusiastically embraced those principles in other
legislative contexts.
For example, S. 7, the Family Health Insurance Protection Act,
provides a clear example of one-sided preemption.
Section 1011 provides that State laws will not be preempted only if
they: First, contain preexisting condition waiting periods that are
``less than those'' established in S 7; second, limit variations in
premium rates ``beyond the variations permitted'' in S. 7, and third,
expand the size of the small group market to include groups ``in excess
of'' the size set forth in the legislation.
ction 1012 of that legislation contains even more expansive one-sided
preemption provisions. It states that: ``Nothing in this Act shall be
construed as prohibiting States from enacting [any] health care reform
measures that exceed the measures established under this Act, including
reforms that expand access to health care services--for example, higher
taxes--control health care costs, and so forth, institute tighter
premium caps or cost controls, and enhance the quality of care.Mr.
President, as I said earlier, I do not believe there is a need for
absolute uniformity in this area. But I do believe it is important to
set some very clear minimum Federal standards that all States must
meet.
The standards in the McConnell-Lieberman-Kassebaum amendment are only
a floor. The amendment does not preempt States from going further with
medical malpractice reforms they may decide are necessary. I think this
is the best way to balance the need for some State flexibility with the
need for greater certainty and predictability in the system.
Medical Malpractice Reform
Mr. PELL. Mr. President, I wish to make a few observations regarding
the effort sponsored by Senator McConnell to add comprehensive medical
malpractice reform to the product liability legislation currently
pending before us.
I was much torn about the McConnell amendment because I support
medical malpractice reform and believe the time has come to profoundly
change the current system. Yet, in the end, I decided to vote against
the McConnell amendment.
I did so because I was deeply concerned that adding this desirable
but controversial reform effort to the pending legislation would
gravely endanger the cause of product liability reform, a cause I have
supported for many years. After many years of frustration I have real
hope that we will achieve product liability reform in this Congress and
I wanted to avoid any action which would endanger that hope. I would
add that I was persuaded in this regard by the sponsor of the product
liability reform effort, Senator Rockefeller.
However, I look forward to the opportunity to fully address medical
malpractice reform later in this Congress when the issues can be aired
fully and not be encumbered by the desire to achieve progress in other
areas of legal system reform. While I do not support all the provisions
of the McConnell amendment, I do support its thrust and would welcome
the opportunity to debate the issue strictly on its own merits.
medical malpractice reform
Mr. ROTH. Mr. President, I have always been a staunch supporter of
our Federal system of government, which has as its most fundamental
principle the idea that matters of governance ought to be left as much
as possible to the States. Traditionally, one such matter left to the
States has been the administration of medical malpractice law.
By virtue of its overwhelming financial stake in the Nation's health
care, however, the Federal Government has a unique and compelling
interest in the delivery of care, and this interest leads me to support
the McConnell amendment on medical malpractice reform. The McConnell
amendment reforms medical malpractice law by creating certain minimum
standards, such as a cap on punitive damages, that will apply
nationwide. It permits States, however, to pass more thorough-going
reforms if they wish to do so.
The Federal Government is the largest purchaser of health care, and
it finances 32 percent of the Nation's health care spending through the
Medicare and Medicaid programs, federally qualified community health
centers, the veterans health care, military health care, Indian health
care, and many other programs. In fact, the Federal Government spent
$280.6 billion in 1993 purchasing health care services--more than for
any other service.
Projections of the growth of health care expenditures continue to
escalate, and the Federal Government's role in paying for these
services will also continue to grow--unless we begin to take steps to
control the rate of growth. In the meantime, we should be working on
increasing access to health care coverage. Savings achieved through
medical malpractice reform will not only save the taxpayers of America
significant amounts, it will help expand access to care.
[[Page S5939]] Based on the experience with federally qualified
community health centers, the evidence is good that the McConnell
amendment will lead to cost savings and expanded access to care.
Currently, more than 500 of these community and migrant health centers
receive Federal funding. These centers provide essential primary care
for about 6 million people living in areas where there are few
physicians or other health care providers. In fact, we have three such
important centers in Delaware--the Henrietta Johnson Community Health
Center in Southbridge, the West Side Community Health Center in
Wilmington, and the DelMarVa Rural Ministries in Kent County. In
October 1992, Congress enacted a type of medical malpractice reform for
federally supported community health centers by extending the Federal
Tort Claims Act [FTCA] to cover these centers. A Government Accounting
Office report estimates that for calendar years 1993 through 1995, a
total of $54.8 million was saved by bringing the community health
centers within the reach of the FTCA.
It is clear to me that medical malpractice reform is needed in order
to control the Federal Government's enormous share of our national
health care costs and, thus, to ensure broad access to quality care.
The Physician Payment Review Commission, which is charged with advising
Congress regarding Medicare policy, has advised in its latest report
that Federal medical malpractice reform should be enacted. The report
states that ``the medical liability system does not adequately prevent
medical injuries or compensate injured patients. There is concern that
the current functioning of this system promotes the practice of
defensive medicine and may impede efforts to improve the cost
effectiveness of care.'' Last year, these problems led me to vote in
favor of medical malpractice reform when the Senate Finance Committee
considered it during its deliberations on health care reform. Because
the problems are with us still, this year I support the McConnell
amendment.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. GORTON. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
Mr. GORTON. 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. GORTON. Mr. President, I ask unanimous consent that, following
the conclusion of the first rollcall vote, all remaining consecutive
rollcall votes be limited to 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GORTON. I now ask for regular order.
Amendment No. 604
The PRESIDING OFFICER. Regular order provides for the Thomas
amendment to recur as the pending amendment.
Mr. ROCKEFELLER. Mr. President, I move to table the Thomas amendment
and I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be a sufficient second.
The yeas and nays were ordered.
Mr. GORTON. Mr. President, for the information of all Senators, there
is a potential for as many as 12 back-to-back votes, beginning now. All
Senators are urged to remain on the floor during this voting sequence.
I ask unanimous consent that, notwithstanding the consent for the
recess at 12:30, the Senate stand in recess immediately following the
disposition of the McConnell amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Vote on Motion to Table Amendment No. 604
The PRESIDING OFFICER. The question is on agreeing to the motion of
the Senator from West Virginia [Mr. Rockefeller] to table the amendment
of the Senator from Wyoming [Mr. Thomas].
The yeas and nays have been ordered. The clerk will call the roll.
The legislative clerk called the roll.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced--yeas 39, nays 61, as follows:
[Rollcall Vote No. 137 Leg.]
YEAS--39
Akaka
Biden
Bingaman
Boxer
Bradley
Breaux
Bumpers
Cohen
D'Amato
Daschle
DeWine
Dodd
Feingold
Glenn
Gorton
Harkin
Hatfield
Heflin
Hollings
Inouye
Jeffords
Kassebaum
Kennedy
Kerry
Kohl
Lautenberg
Levin
Moseley-Braun
Moynihan
Murray
Pell
Robb
Rockefeller
Sarbanes
Simon
Snowe
Specter
Thompson
Wellstone
NAYS--61
Abraham
Ashcroft
Baucus
Bennett
Bond
Brown
Bryan
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Conrad
Coverdell
Craig
Dole
Domenici
Dorgan
Exon
Faircloth
Feinstein
Ford
Frist
Graham
Gramm
Grams
Grassley
Gregg
Hatch
Helms
Hutchison
Inhofe
Johnston
Kempthorne
Kerrey
Kyl
Leahy
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Murkowski
Nickles
Nunn
Packwood
Pressler
Pryor
Reid
Roth
Santorum
Shelby
Simpson
Smith
Stevens
Thomas
Thurmond
Warner
So the motion to lay on the table the amendment (No. 604) was
rejected.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 604) was agreed to.
Mr. GORTON. Mr. President, I move to reconsider the vote, and I move
to lay that motion on the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
Vote on Motion to Table Amendment No. 605
The PRESIDING OFFICER. The question occurs on amendment numbered 605.
Mr. GORTON. Mr. President, I move to table the Wellstone amendment
and ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to
table.
The clerk will call the roll.
The bill clerk called the roll.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 69, nays 31, as follows:
[Rollcall Vote No. 138 Leg.]
YEAS--69
Abraham
Ashcroft
Baucus
Bennett
Biden
Breaux
Brown
Bumpers
Burns
Campbell
Chafee
Coats
Cochran
Cohen
Coverdell
Craig
D'Amato
DeWine
Dodd
Dole
Domenici
Faircloth
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hatch
Hatfield
Heflin
Helms
Hutchison
Inhofe
Jeffords
Johnston
Kassebaum
Kempthorne
Kohl
Kyl
Leahy
Lieberman
Lott
Lugar
McCain
McConnell
Moynihan
Murkowski
Nickles
Nunn
Packwood
Pressler
Pryor
Rockefeller
Roth
Santorum
Shelby
Simpson
Smith
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
NAYS--31
Akaka
Bingaman
Bond
Boxer
Bradley
Bryan
Byrd
Conrad
Daschle
Dorgan
Exon
Feingold
Harkin
Hollings
Inouye
Kennedy
Kerrey
Kerry
Lautenberg
Levin
Mack
Mikulski
Moseley-Braun
Murray
Pell
Reid
Robb
Sarbanes
Simon
Snowe
Wellstone
So the motion to lay on the table the amendment (No. 605) was agreed
to.
Mr. GORTON. Mr. President, I move to reconsider the vote by which the
motion to lay on the table was agreed to.
Mr. BREAUX. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Vote on Amendment No. 608
The PRESIDING OFFICER. The question is on agreeing to the amendment
offered by the Senator from Maine.
Mr. KENNEDY. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
[[Page S5940]] The PRESIDING OFFICER. The question is on agreeing to
the amendment offered by the Senator from Maine. On this question, the
yeas and nays have been ordered, and the clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 62, nays 38, as follows:
[Rollcall Vote No. 139 Leg.]
YEAS--61
Abraham
Bennett
Bond
Brown
Burns
Campbell
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dole
Domenici
Faircloth
Feinstein
Frist
Gorton
Grams
Grassley
Gregg
Hatch
Helms
Hutchison
Inhofe
Jeffords
Kassebaum
Kempthorne
Kerrey
Kohl
Kyl
Lautenberg
Levin
Lieberman
Lott
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Murkowski
Nickles
Nunn
Packwood
Pressler
Robb
Roth
Santorum
Shelby
Simpson
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
NAYS--39
Akaka
Ashcroft
Baucus
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Dodd
Dorgan
Exon
Feingold
Ford
Glenn
Graham
Gramm
Harkin
Hatfield
Heflin
Hollings
Inouye
Johnston
Kennedy
Kerry
Leahy
Lugar
Moynihan
Murray
Pell
Pryor
Reid
Rockefeller
Sarbanes
Simon
Smith
Wellstone
So the amendment (No. 608) was agreed to.
Mr. GORTON. Mr. President, I move to reconsider the vote.
Mr. ROCKEFELLER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 609
The PRESIDING OFFICER. The question now occurs on agreeing to
amendment No. 609 by the Senator from Arizona [Mr. Kyl].
Mr. ROCKEFELLER addressed the Chair.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. I move to table the pending amendment and ask for
the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
Vote on Motion to Table Amendment No. 609
The PRESIDING OFFICER (Mr. Kempthorne). The question is on agreeing
to the motion to table the amendment. The yeas and nays have been
ordered. The clerk will call the roll.
The bill clerk called the roll.
The result was announced--yeas 65, nays 35, as follows:
[Rollcall Vote No. 140 Leg.]
YEAS--65
Abraham
Akaka
Ashcroft
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Burns
Campbell
Cochran
Cohen
Conrad
D'Amato
Daschle
DeWine
Dodd
Dorgan
Exon
Feingold
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Harkin
Hatch
Heflin
Hollings
Jeffords
Johnston
Kassebaum
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
Mack
Mikulski
Moynihan
Murkowski
Murray
Nunn
Packwood
Pell
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Sarbanes
Shelby
Snowe
Specter
Stevens
Thompson
Warner
Wellstone
NAYS--35
Baucus
Bennett
Bond
Brown
Byrd
Chafee
Coats
Coverdell
Craig
Dole
Domenici
Faircloth
Gramm
Grams
Grassley
Gregg
Hatfield
Helms
Hutchison
Inhofe
Inouye
Kempthorne
Kyl
Lott
Lugar
McCain
McConnell
Moseley-Braun
Nickles
Santorum
Simon
Simpson
Smith
Thomas
Thurmond
So the motion to table the amendment (No. 609) was agreed to.
Mr. GORTON. Mr. President, I move to reconsider the vote.
Mr. ROCKEFELLER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Vote on Motion to Table Amendment No. 611
The PRESIDING OFFICER. The question now is on the Kyl amendment No.
611.
Mr. ROCKEFELLER. Mr. President, I move to table the amendment and ask
for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 56, nays 44, as follows:
[Rollcall Vote No. 141 Leg.]
YEAS--56
Akaka
Biden
Bingaman
Bond
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Cohen
Conrad
D'Amato
Daschle
DeWine
Dodd
Dorgan
Feingold
Feinstein
Ford
Glenn
Gorton
Graham
Harkin
Heflin
Hollings
Inouye
Jeffords
Johnston
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
McConnell
Mikulski
Moseley-Braun
Moynihan
Murray
Nunn
Packwood
Pressler
Pryor
Reid
Robb
Rockefeller
Sarbanes
Shelby
Simon
Simpson
Specter
Thompson
Wellstone
NAYS--44
Abraham
Ashcroft
Baucus
Bennett
Brown
Burns
Campbell
Chafee
Coats
Cochran
Coverdell
Craig
Dole
Domenici
Exon
Faircloth
Frist
Gramm
Grams
Grassley
Gregg
Hatch
Hatfield
Helms
Hutchison
Inhofe
Kassebaum
Kempthorne
Kyl
Lott
Lugar
Mack
McCain
Murkowski
Nickles
Pell
Roth
Santorum
Smith
Snowe
Stevens
Thomas
Thurmond
Warner
So the motion to lay on the table the amendment (No. 611) was agreed
to.
Mr. GORTON. Mr. President, I move to reconsider the vote.
Mr. ROCKEFELLER. I move to lay that motion on the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
The motion to lay on the table was agreed to.
Vote on Amendment No. 612
The PRESIDING OFFICER. The question is on agreeing to the amendment
numbered 612, offered by the Senator from Ohio.
Mr. GORTON. Mr. President, this is a noncontroversial amendment.
So the amendment (No. 612) was agreed to.
Mr. GORTON. Mr. President, I move to reconsider the vote.
Mr. ROCKEFELLER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Vote on Amendment No. 613
The PRESIDING OFFICER. The question is on agreeing to the amendment
numbered 613, offered by the Senator from Utah.
Mr. GORTON. Mr. President, this is also a noncontroversial amendment.
So the amendment (No. 613) was agreed to.
Mr. GORTON. Mr. President, I move to reconsider the vote.
Mr. ROCKEFELLER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Unanimous-Consent Request
Mr. DOLE. Mr. President, I ask unanimous consent we have the next
vote and then we recess for the policy luncheons until 2:15, and then
come back and complete the additional rollcall votes.
There will be one additional rollcall vote. The remainder of the
votes will follow at 2:15.
The PRESIDING OFFICER. Is there objection?
Mr. DODD. Mr. President, reserving the right to object, I am going to
withdraw my amendment at this point. I do not know if that affects the
majority leader's schedule, but I ask unanimous consent to withdraw my
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment (No. 616) was withdrawn.
Mr. DOLE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
[[Page S5941]] 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, after consultation with the Democratic
leader and a number of people who are conducting hearings, I withdraw
the request. We will just go ahead and complete the votes now.
The PRESIDING OFFICER. Without objection, it is so ordered. The
request is vitiated.
Amendment No. 614
The PRESIDING OFFICER. The question, then, is on agreeing to the
Simon amendment (No. 614).
Mr. GORTON addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington is recognized.
Mr. GORTON. Mr. President, I move to table the Simon amendment.
Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Vote On Motion To Table Amendment No. 614
The PRESIDING OFFICER. The question occurs on the motion to lay on
the table the amendment, No. 614.
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
The result was announced, yeas 51, nays 49, as follows:
[Rollcall Vote No. 142 Leg.]
YEAS--51
Ashcroft
Bennett
Bond
Brown
Burns
Campbell
Chafee
Coats
Cochran
Coverdell
Craig
Dodd
Dole
Domenici
Exon
Faircloth
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hatch
Hatfield
Helms
Hutchison
Inhofe
Jeffords
Kassebaum
Kempthorne
Kyl
Lautenberg
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Pressler
Robb
Rockefeller
Roth
Santorum
Smith
Snowe
Stevens
Thomas
Thurmond
Warner
NAYS--49
Abraham
Akaka
Baucus
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Cohen
Conrad
D'Amato
Daschle
DeWine
Dorgan
Feingold
Feinstein
Ford
Glenn
Graham
Harkin
Heflin
Hollings
Inouye
Johnston
Kennedy
Kerrey
Kerry
Kohl
Leahy
Levin
Mikulski
Moseley-Braun
Moynihan
Murray
Nunn
Packwood
Pell
Pryor
Reid
Sarbanes
Shelby
Simon
Simpson
Specter
Thompson
Wellstone
So the motion to lay on the table the amendment (No. 614) was agreed
to.
Mr. GORTON. Mr. President, I move to reconsider the vote.
Mr. MACK. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Vote on Amendment No. 607
The PRESIDING OFFICER. The question now occurs on amendment No. 607
offered by the Senator from Massachusetts [Mr. Kennedy].
Mr. GORTON. Mr. President, I move to table the Kennedy amendment and
ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to
table amendment No. 607. The yeas and nays have been ordered. The clerk
will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 55, nays 45, as follows:
[Rollcall Vote No. 143 Leg.]
YEAS--55
Abraham
Ashcroft
Bennett
Bond
Brown
Burns
Campbell
Chafee
Coats
Cochran
Coverdell
Craig
DeWine
Dole
Domenici
Exon
Faircloth
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hatch
Hatfield
Heflin
Helms
Hutchison
Inhofe
Jeffords
Kassebaum
Kempthorne
Kyl
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Packwood
Pressler
Robb
Rockefeller
Roth
Santorum
Smith
Snowe
Stevens
Thomas
Thompson
Thurmond
Warner
NAYS--45
Akaka
Baucus
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Cohen
Conrad
D'Amato
Daschle
Dodd
Dorgan
Feingold
Feinstein
Ford
Glenn
Harkin
Hollings
Inouye
Johnston
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Mikulski
Moseley-Braun
Moynihan
Murray
Nunn
Pell
Pryor
Reid
Sarbanes
Shelby
Simon
Simpson
Specter
Wellstone
So the motion to table the amendment (No. 607) was agreed to.
Mr. GORTON. Mr. President, I move to reconsider the vote.
Mr. JOHNSTON. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Vote on Amendment No. 615
The PRESIDING OFFICER. The question is on agreeing to amendment No.
615 offered by the Senator from Massachusetts [Mr. Kennedy].
The amendment (No. 615) was agreed to.
Mr. GORTON. Mr. President, I move to reconsider the vote and move to
lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 603, As Amended
The PRESIDING OFFICER. The pending measure is amendment No. 603, as
amended, offered by the Senator from Kentucky [Mr. McConnell].
Mr. GORTON. Mr. President, I ask for the yeas and the nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
Vote On Amendment No. 603, As Amended
The PRESIDING OFFICER. The question is on agreeing to amendment No.
603, as amended.
The clerk will call the roll.
The legislative clerk called the roll.
The result was announced--yeas 53, nays 47, as follows:
[Rollcall Vote No. 144 Leg.]
YEAS--53
Abraham
Ashcroft
Bennett
Bond
Brown
Burns
Campbell
Chafee
Coats
Cochran
Coverdell
Craig
DeWine
Dole
Domenici
Exon
Faircloth
Feinstein
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hatch
Hatfield
Helms
Hutchison
Inhofe
Jeffords
Kassebaum
Kempthorne
Kyl
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Nunn
Pressler
Robb
Roth
Santorum
Simpson
Smith
Snowe
Stevens
Thomas
Thurmond
Warner
NAYS--47
Akaka
Baucus
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Cohen
Conrad
D'Amato
Daschle
Dodd
Dorgan
Feingold
Ford
Glenn
Graham
Harkin
Heflin
Hollings
Inouye
Johnston
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Mikulski
Moseley-Braun
Moynihan
Murray
Packwood
Pell
Pryor
Reid
Rockefeller
Sarbanes
Shelby
Simon
Specter
Thompson
Wellstone
So the amendment (No. 603), as amended, was agreed to.
____________________