[Congressional Record Volume 145, Number 134 (Wednesday, October 6, 1999)]
[Senate]
[Page S12098]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         AMERICA'S HEALTH CARE

  Mr. GRAMM. Mr. President, I wish to bring to the attention of my 
colleagues one of the most insightful articles that I have read in 
regard to the most effective way to promote health care and patient's 
rights.
  Written by Mr. M. Anthony Burns of Ryder System Inc., the comments 
appear on the op-ed page of yesterday's Washington Post. Mr. Burns 
speaks as the CEO of a company which provides health care benefits for 
80,000 employees and family members. At a time when courage appears to 
be in short supply, it is refreshing to find a person who is able and 
willing to publicly examine a complex issue in such a lucid, thoughtful 
manner.
  I encourage all my colleagues to read and consider carefully the 
analysis offered by Mr. Burns. I ask unanimous consent that the article 
be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, Oct. 5, 1999]

                  An Assault on America's Health Care

                         (By M. Anthony Burns)

       As the CEO of a $5 billion transportation company, when I 
     need legal advice, I listen to the experts. Congress should 
     do the same when it considers the Dingell-Norwood ``Patients' 
     Bill of Rights,'' which would allow patients to sue their 
     HMOs but would also make employers liable in state court for 
     the health care benefits they provide.
       The sponsors claim their legislation includes an exemption 
     to shield employers from liability, but Reps. John Dingell 
     and Charlie Norwood are just dead wrong on that. A new study 
     prepared by independent legal experts shows this so-called 
     employers' ``shield'' is nothing more than a legal mirage 
     that provides only the illusion of protection. In reality, 
     very few companies could withstand the lawsuit exposure this 
     bill would impose on every business in America.
       David Kenty and Frank Sabatino, experts in employee 
     benefits law and co-authors of the publication ``ERISA: A 
     Comprehensive Guide,'' found that under the Dingell-Norwood 
     bill ``employers would be subject to state law causes of 
     action replete with jury trials, extra-contractual damages, 
     and punitive damages.'' This would ``dramatically change the 
     way that group health benefits claims are litigated in the 
     United States,'' conclude the authors. ``Anyone who claims 
     the contrary is simply failing to comprehend the thrust of 
     the legislation.''
       Trial lawyers could initiate lawsuits against employers 
     based on a number of legal arguments, according to Kenty and 
     Sabatino.
       First, plaintiffs could argue that insurance companies or 
     third-party administrators are merely the agents of the 
     employer and therefore--shield language notwithstanding--the 
     employer is also responsible.
       Second, a lawyer could argue that by selecting one health 
     care provider over another, the employer's discretionary 
     decisions played an integral part in a particular employee/
     patient outcome.
       Third, most employers commonly retain the right to override 
     the decisions of their health care provider or fiduciary to 
     enable them to serve as patient advocates for their 
     employees. The Dingell-Norwood bill would turn that 
     relationship on its ear, forcing most companies to abandon 
     their advocacy role altogether.
       Supporters of the lawsuit provisions scoff at the notion 
     that trial attorneys would abuse the health care system or 
     employers who provide insurance. Tell that to the West 
     Virginia convenience store that got hit with a $3 million 
     judgment when one of its workers injured her back opening a 
     pickle jar.
       The likely epidemic of litigation this kind of legislation 
     would generate creates an impossible choice for employers. 
     They can continue to provide health care coverage and risk 
     financial disaster if they find themselves on the losing end 
     of a health care lawsuit, whether they had anything to do 
     with treatment decisions or not. Or they can stop providing 
     health care altogether.
       In fact, according to a recent survey of small business 
     owners, six out of 10 reported they would be forced to end 
     employee coverage rather than face this risk. Today my 
     company, Ryder, provides top quality health care benefits to 
     22,000 employees covering more than 80,000 people. We monitor 
     employee satisfaction with our health care providers, and we 
     act as a strong advocate for employees in disputes with these 
     providers.
       But if Dingell-Norwood passes, we will be forced to 
     seriously reevaluate whether and how we can continue to offer 
     health benefits to our employees. As with most businesses 
     today, the exposure could simply be too severe for us. It 
     would put our traditional employer-provided system of health 
     care at extreme risk.
       Add rising health care costs to this new threat of 
     expensive litigation and it's clear that this legislation is 
     a prescription for disaster. Last year healath care costs 
     went up 6 percent and the average employer spent $4,000 per 
     employee on health care. This year, health care costs are 
     expected to go up an average 9 percent, and potentially much 
     higher for small businesses.
       As a result, it will be harder for employers to offer 
     health insurance and, as some costs are passed on, harder for 
     workers to afford it. Research shows that every one percent 
     increase in costs forces 300,000 more people to lose their 
     health care coverage.
       A lot of people agree that ``right-to-sue'' provisions 
     don't make sense for either employers or employees. The U.S. 
     Senate, 25 state legislatures and President Clinton's own 
     hand-picked Health Care Quality Commission all refused to 
     support similar provisions to expand liability.
       Congress says it wants to make managed care more 
     accountable, but Dingell-Norwood would only raise health care 
     costs, increase the number of uninsured and punish the 
     nation's employers who voluntarily provide health care to 
     millions of American workers and their families.
       This legislation isn't a ``Patients' Bill of Rights.'' It's 
     a devastating assault on America's health care system, and 
     Congress should reject it.

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