[Congressional Record Volume 145, Number 86 (Thursday, June 17, 1999)]
[Senate]
[Pages S7166-S7168]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  Mr. DURBIN. Mr. President, it is interesting. Prior to my speech, the 
Senator from New Jersey and the Senator from Rhode Island talked about 
lead poisoning and public health. The Senator from Maine has discussed 
Medicare, and now I want to discuss the Patients' Bill of Rights. There 
have been three speeches in a row on health care. It sounds like a 
pretty important issue to me.
  Frankly, for many Americans, it is the most important issue. But the 
sad reality is that the Senate spends a lot of time on speeches when it 
comes to health care and almost no time when it comes to debating 
legislation to make things better.
  If you are watching this proceeding or are within the sound of my 
voice and you can say in the last year I had a problem in my family 
with health insurance coverage or I know someone in my family who did, 
do not believe you are in the minority. In fact, almost 50 percent of 
Americans say they have had problems with their managed care health 
insurance.
  What kind of problems? Coverage. If there is a problem, a medical 
problem, will the managed care policy cover it with the care that is 
necessary, or do you have to go out and hire a lawyer?
  On the question of emergency room access, if you belong to a managed 
care plan, they might tell you, incidentally, you are supposed to go to 
St. John's Hospital and not Memorial Medical Center and you find 
yourself in a predicament where Memorial Medical Center is closer to 
your home in an emergency situation, you better check your policy. You 
might have just done something, by going to the wrong hospital, in the 
view of that insurance company, that is going to cost you and your 
family some money. That should be changed.
  Basically, an individual in a family situation who has a medical 
necessity, a kid who has fallen down with a broken arm or something 
very serious should not have to fumble through the glove compartment to 
figure out which hospital to go to for emergency care. That is 
something we need to address.
  The Patients' Bill of Rights proposed by the Democratic side is an 
attempt to try to address obvious inadequacies when it comes to health 
insurance and health care in America. I have given a couple of 
examples--coverage under a health insurance policy and the question of 
which emergency room you can use. There are many others.
  For instance, most people believe when they sit down in the doctor's 
office, the doctor is being honest with them, the doctor is telling the 
truth, the doctor is giving his or her best medical judgment. In fact, 
that relationship and that conversation is really so honored in law, 
that in a courtroom it is considered a confidential relationship--the 
doctor-patient relationship. Yet, what has happened is there is another 
party in the room, although invisible. That other party is a bureaucrat 
from an insurance company. Many doctors, when they lean over the table 
and say, you know, I think this is what your son needs, or this is what 
your wife will need, are not giving you their best medical advice. They 
are telling you what the health insurance company will pay for and what 
it will not pay for.
  One of the things we address in the Patients' Bill of Rights is 
ending this physician gag rule. Please, in America, allow doctors to 
practice medicine. Do not let clerks and insurance companies make 
crucial medical decisions.
  The Illinois State Medical Society invited me several years ago to 
accompany a local doctor in Springfield, IL, to a hospital and spend a 
day making rounds. I was a little nervous about it because, frankly, I 
do not have any business in a hospital room unless I am being treated. 
But they invited me, and it turned out that most of the patients were 
happy to see a politician wandering around with their doctors.
  But the thing that was an eye-opener at St. John's Hospital in 
Springfield was when the doctor I was accompanying decided he wanted to 
keep a patient in the hospital over the weekend. The lady was in her 
sixties. She had been diagnosed with a brain tumor that was causing her 
dizziness. She lived alone.
  The doctor said: I'm afraid that if she went home over the weekend 
before the Monday surgery to remove the tumor, she might fall down and 
hurt herself. We would have to postpone the surgery. I want to keep her 
in the hospital so we can take care of her and watch her, and then on 
Monday perform the surgery.
  I am a layman, but that sounded perfectly reasonable.
  Before he could make that decision, though, he had to get on the 
phone and call a clerk at an insurance company in Omaha, NE. You know 
what the clerk said? ``No. Send her home. Tell her to come back Monday 
morning for the brain surgery.''
  This doctor could not believe it. He stood at this nurse's station, 
on that same floor, arguing with that clerk for half an hour. Finally, 
he slammed the phone down and said: I'm keeping this woman in the 
hospital. We'll appeal this later on.
  What that doctor faced is repeated every day all across America where 
people who are sitting with these books of insurance regulations are 
making the decisions--the life-and-death decisions--that we count on 
when we take ourselves or our family in for medical care.
  This has to come to an end. It has to change. We have to say, 
basically, that health insurance in this country is not going to be 
driven just by the bottom line in reducing costs, but by the top line 
of quality medical care; we are not going to take health care away from 
the professionals and give it to the insurance bureaucrats.
  There is legislation pending before the Senate which engages this 
debate, which says this, the greatest deliberative body in America, is 
going to come down and debate, once and for all, how to make it right 
for American families. That bill is mired down in the process and 
cannot be brought to this floor. As a result, we stand before you 
today--and I know Senator Dorgan is going to address this as well--in 
frustration.
  What is it we are doing here that is more important than making sure 
health insurance and health care in America is of the highest quality? 
We spent 5 days, 5 legislative days, debating the protection of 
computer companies. Well, it is an interesting challenge in terms of 
liability and their protection. Can't we spend 5 hours debating whether 
or not 150 million American families have health insurance protection? 
Isn't that worth our time and our debate?
  Oh, there are differences of opinion here. I see things one way and 
some on the other side may see it another, but that is what the 
legislative process is about. Yet, we cannot seem to bring it to the 
floor so that we can have an honest debate to help America's families.

[[Page S7167]]

  The other day I called on the Senate majority leader, the Republican 
leader, Trent Lott, to call up this bill before the Fourth of July. We 
have the bill out there. We know what the issues are. Let's have the 
debate. Yet, he was not sure he could. I hope he changes his mind. I 
hope those who were listening to this speech, and others, will decide 
that it is worth calling their Senators and their Congressmen and 
telling them: Yes, do something about health insurance.
  Incidentally, in the case I mentioned earlier, where that insurance 
company clerk told the doctor to send the lady home, that if that clerk 
guessed wrong, and that lady went home, fell down the stairs and had a 
serious injury, do you know who is liable for that? Do you know who 
would have to answer in court for that insurance clerk's decision? The 
doctor--not the insurance company, the doctor.

  That is what is upside down, because in America we are all held 
accountable for our actions. But by a quirk in the Federal law, health 
insurance companies--many of them are not held accountable for their 
conduct, not held accountable for their decisions.
  Are the doctors upset about this? Are hospitals upset? Wouldn't you 
be if you wanted to do the right thing for the patient, and the 
insurance company makes the decision, a wrong one, the patient is 
injured, and the person sued ends up being the doctor or the hospital?
  Frankly, in this country we are all held accountable for our actions. 
Why should health insurance companies be any different? If they knew 
they had to answer for their decisions, I think they would make better 
decisions. I think they would be more sensitive and more responsive. 
That is one of the key areas of disagreement between Democrats and 
Republicans on this bill.
  Should it be debated? I think so. I would like a vote on it. Let's 
decide whether health insurance companies shall be held accountable 
like every other company in America. For some reason, the leadership 
here in the Senate does not want us to debate this issue. That is a sad 
reality.
  They have come up with a bill, incidentally, which really only covers 
a third of Americans who are covered by health insurance. So many other 
Americans just do not have a chance.
  Let me give you an example of what I am talking about. If you worked 
for AT&T, you would be covered by the Republican bill; General 
Electric, covered by their bill; Wal-Mart, covered by their bill. But 
other small business employees would be left behind to fend for 
themselves. Family farmers--I have a lot of them in Illinois--they pay 
for their own insurance, they pay a lot for it; they would not be 
protected by the Republican bill. Public school teachers, policemen, 
women firefighters, in fact all State and local employees would not be 
covered by the bill that is being proposed by the Republicans.
  This is worthy of a debate. Are we going to have a Patients' Bill of 
Rights that helps all Americans, or are we going to slice off a third 
of them and say: Well, we're worried about you; we're not worried about 
your neighbor?
  That is worth a debate. That is worth a vote. What is holding this 
up? It is a decision by some that, before we take this issue under 
consideration, there has to be an agreement to limit the number of 
amendments. The Democratic leadership is prepared to limit those 
amendments. Let's bring it down to a 5-day debate or a 6-day debate. 
Let's go at it, and go at it seriously.
  Yet, I think the underlying reason for the delay is something more 
serious. There is an old friend of mine and former boss, State Senator 
Cecil Partee of Chicago, IL, who used to say: In politics, for every 
decision there is a good reason and a real reason. Well, the good 
reason is the time of the Senate. The real reason is that many Senators 
on the other side of the aisle don't want to be forced to vote on some 
of these tough questions. The insurance companies tell them to vote one 
way, and they know that when they go back home they cannot explain that 
vote. That, to me, is the bottom line.
  I mentioned the other day in debate a former Congressman, now passed 
away, a great friend of mine, Mike Synar, who was a Congressman from 
Oklahoma. He said: If you don't want to fight fires, don't be a 
fireman. If you don't want to vote on tough issues, don't be a Member 
of Congress.
  These are tough issues, but they are important issues. The American 
people deserve our best judgment in bringing this debate forward in a 
Patients' Bill of Rights, to bring it to the floor of the Senate.

  Do you remember the debate on gun control? A lot of phony amendments 
were considered for a week. Finally, they were rejected and a real bill 
was passed. It is important to do the same thing with the Patients' 
Bill of Rights.
  The PRESIDING OFFICER (Mr. Allard). The Senator's time has expired.
  Mr. DURBIN. I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota has 10 minutes.
  Mr. DORGAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. I ask unanimous consent to extend my time by 5 minutes. I 
see no one else on the floor.
  The PRESIDING OFFICER. Objection is expressed by the Chair as a 
Member of the Senate.
  Mr. DORGAN. Mr. President, I will then, at the end of morning 
business, ask that morning business be extended if necessary.
  I have waited to listen to my friend from Illinois, Senator Durbin, 
and to add my voice to this call for a debate on the Patients' Bill of 
Rights. What is the Patients' Bill of Rights? And why is it necessary?
  The Senator from Illinois just described the invisible partner in the 
doctor's examining room or the hospital room. I want to read about this 
invisible partner because I think it is quite interesting.
  A couple of years ago, we had a hearing here in the Congress on the 
House side. Late in the day, long after the television cameras had been 
packed up and the lights had been turned off and the crowd had left, a 
woman came to testify. I want to read part of her testimony. She was a 
doctor. She said:

       My name is Linda Peeno. I am a former medical reviewer and 
     medical director for three managed care organizations. I wish 
     to begin by making a public confession: In the spring of 
     1987, as a physician, I caused the death of a man.

                           *   *   *   *   *

       Although this was known to many people, I have not been 
     taken before any court of law or called to account for this 
     in any professional or public forum. In fact, just the 
     opposite occurred: I was ``rewarded'' for this. It brought me 
     an improved reputation in my job, and contributed to my 
     advancement afterwards. Not only did I demonstrate I could 
     indeed do what was expected of me, I exemplified the ``good'' 
     company doctor: I saved a half million dollars!
       Since that day I have lived with this act, and many others, 
     eating into my heart and soul. For me, a physician is a 
     professional charged with care, or healing, of his or her 
     fellow human beings. The primary ethical norm is: do no harm. 
     I did worse: I caused a death. Instead of using a clumsy, 
     bloody weapon, I used the simplest, cleanest of tools: my 
     words. The man died because I denied him a necessary 
     operation to save his heart. I felt little pain or remorse at 
     the time. This man's faceless distance soothed my conscience. 
     Like a skilled soldier, I was trained for this moment. When 
     any moral qualms arose, I was to remember: I am not denying 
     care; I am only denying payment.

  This from a doctor who served in a managed care organization, making 
the decisions about whether a patient and a doctor can continue to 
receive and provide care. That is the invisible presence in that 
hospital room--someone 1,000 miles away making a decision about profits 
and losses. This woman says: As a doctor, I caused a man's death and 
was rewarded for it.
  Is this the way medicine should work? The Patients' Bill of Rights 
says no. Our bill says that every patient in our country, has the right 
to know all of their medical options, not just the cheapest treatment 
options. Today many doctors are gagged, told by the managed care 
organization, you dare not tell that patient what their range of 
medical options are, because we will not provide coverage for some of 
the more expensive ones, even though they might be the option that 
saves that patient's life.
  Our Patients' Bill of Rights says let's correct that. Our Patients' 
Bill of Rights says, when someone is in need of an emergency room and 
needs medical treatment on an emergency basis, they have a right to get 
that care.
  Not all managed care organizations say that is the case. Jacqueline 
Lee was hiking in the Shenandoah mountains. She tripped and fell off a 
40-foot cliff. She had serious injuries from that

[[Page S7168]]

fall--fractures in her arms, pelvis, her skull. She was unconscious. 
She was airlifted by helicopter to an emergency room, unconscious, with 
fractures in many bones in her body. The HMO said it would not pay the 
more than $10,000 in hospital bills for Jacqueline Lee because she 
hadn't gotten prior approval for her emergency room treatment.
  Think of that. Here is a woman hauled in on a gurney unconscious to 
an emergency room. The HMO says: Well, we won't pay that bill because 
you didn't get prior approval for emergency room treatment.
  Is there a need for a Patients' Bill of Rights? Is there a need to 
correct this kind of thing? Of course there is.
  Now, the Republicans say: We have a Patients' Bill of Rights. Yes, 
they do; they sure do. Their Patients' Bill of Rights covers some 
Americans, covers about 48 million Americans. But there are 113 million 
Americans who are not covered by their Patients' Bill of Rights.
  The Senator from Illinois asked the question: Why can't we bring the 
bills to the floor and have a debate? The answer is, because some want 
to control every nuance on the floor of the Senate. They want to 
control who speaks, when they speak, whether you can offer an 
amendment, what your amendment says. We have put up with that for far 
too long.

  Speaking only for myself, we are done putting up with it. This is not 
the way the Senate works. The Senate doesn't have, as the House does, a 
Rules Committee that becomes the prison for all the amendments and then 
the warden decides which amendments get let out the door. That is not 
the way the Senate works.
  I have just prepared an analysis of how the Senate has been handling 
these issues in recent years, compared with the history of the Senate. 
It is very interesting. Lately, the strategy is to bring a bill to the 
floor and do what they call ``fill the tree,'' so Senators can't offer 
any amendments. The only way you can offer an amendment is if the 
majority leader says: Let me see your amendment. If I like it, you get 
to offer it; if I don't, you can't offer it.
  That didn't happen in the past in this Senate. That is not the way 
the Senate works. Somebody needs to tell the folks who run this place 
that we are not going to let them continue to run the Senate that way. 
We demand that the Patients' Bill of Rights be brought to the floor of 
the Senate, and we demand the right to offer our amendments. We demand 
the right to debate them. We say to those who seem to want to keep the 
doors locked on good public policy issues like this: If you intend to 
keep doing that, then you are not going to do much business around 
here.
  While folks are brought into emergency rooms unconscious and told by 
HMOs: We won't pay because you didn't get prior approval, we are told 
we can't correct it with a Patients' Bill of Rights. While we have 
doctors who come to testify before the Congress and say: I am 
responsible for the death of a person because I withheld treatment and 
I was rewarded for it under the current system, we are told we don't 
have the time on the floor of the Senate to bring up a Patients' Bill 
of Rights, or, if we do have the time, we are going to demand that you 
get preapproval for your amendments by someone on the other side of the 
aisle who puts forward a bill that is just a shell.
  This Senate is sleepwalking on important issues. We ought to do much 
better for the American people than to sleepwalk on issues dealing with 
health care and the Patients' Bill of Rights and education and so many 
other important issues.
  I will come tomorrow to the floor to talk about the farm crisis. This 
Congress is sleepwalking on the farm crisis as well.
  I would like to say to my friend from Illinois, the Patients' Bill of 
Rights should have been passed by the last Congress. We have been more 
than patient on this issue.
  I ask the Senator from Illinois--I would be happy to entertain a 
question about the delay here--it seems to me there has been plenty of 
time to do this. There is just not the will by some to want this to 
come to the floor.
  Mr. DURBIN. If the Senator will yield, I really have two questions.
  First, related to the fact that we both have large rural populations 
in our State, as the Senator from North Dakota understands, the tax 
laws do not help family farmers pay for their health insurance as they 
should. We have worked together to try to have full deductibility of 
health insurance. The family farmer, self-employed person trying to get 
health insurance coverage has to pay more out of pocket than anyone who 
works for a corporation, for example, because of our tax laws.
  We have the Republican version of this issue, the Patients' Bill of 
Rights, which doesn't cover these same family farmers and give them 
protection. So they pay more for their insurance, higher premiums. They 
pay more out of pocket for it and don't get protection from the 
Republican Patients' Bill of Rights, whereas the Democratic Patients' 
Bill of Rights provides this protection.
  Mr. DORGAN. If I might also make the point, the Congress has already 
said Medicare and Medicaid patients will get basic protections. Members 
of Congress get this protection in their own health care program. If it 
is good enough for all of those interests--and it is, and necessary--
why is it not good enough for the 113 million Americans whom the 
Republicans say ought not get this help with their Patients' Bill of 
Rights?

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. THOMAS. Mr. President, I ask unanimous consent to utilize the 
remaining time on the Republican side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Wyoming.

                          ____________________