[Congressional Record Volume 146, Number 22 (Thursday, March 2, 2000)]
[Senate]
[Pages S1111-S1113]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  Mr. GREGG. Mr. President, we are about to begin the heavy lifting on 
the Patient Bill of Rights Conference Committee, and I wanted to come 
to the Floor of the Senate and lay out some of the key concerns and 
principles that should guide us in the coming month.
  First, I want to take a minute and compliment my colleague, Senator 
Nickles, for his fine work over, really, the last 3 years. He has been 
a dedicated leader on this issue.
  I am confident that as chair of the conference, he will conduct a 
fair and orderly process for this conference.
  We are ready. Many of us have worked on most of these provisions for 
several years. I and my Republican Senate conferees, for one, have 
worked over the last several months to educate ourselves on the House 
bill.
  Let me be clear. We want a substantive conference. As I have said, we 
have already rolled up our sleeves, and I think we can work through 
this complex bill and meet the deadline of completing this bill by the 
end of March. That is our goal and with the cooperation of every 
Senator and House Member on this committee, I believe we can meet this 
goal.
  The stakes are high. I don't think it is an exaggeration to say that 
the very future of medical care in this country hinges on what we do in 
this next month.
  From the very basic and practical question of who a patient calls for 
help when there is a concern about coverage or some aspect of their 
health plan--to the delivery of that care by doctors or other health 
professionals--to who regulates these fundamental health insurance 
issues--all of these issues will be greatly affected by this bill.
  First, do no harm. This is the doctor's oath. I believe we serve 
Americans badly if at the end of the day we do not adhere to that same 
rule.
  That is why we cannot enact a bill that unreasonably increase the 
cost of insurance. We cannot leave American families with no choice but 
to drop their insurance altogether.
  Even in our strong economy--the strongest economy that this country 
has seen since WWII--the number of uninsured Americans has increased by 
about another 1 million. The latest census numbers available show that 
44.3 million Americans were without coverage in 1998. That is one 
American in six.
  And employers are facing increases in health care costs this year of 
as much as 7.3 percent. Small businesses are struggling with even much 
higher cost increases. Costs are rising for American employers who want 
to continue providing coverage to their employees.
  For better or worse, managed care has been the main instrument in 
this country for making health care more affordable for a vast number 
of Americans. If we price these products out of the market, with 
regulations, mandates and lawsuits, the effect will be crippling.
  We recently heard from some fairly large employers who said that if 
the House-passed bill were enacted, they would stop offering employees 
health insurance altogether--resulting in more uninsured.
  These aren't just some unrecognizable companies with a few employees. 
Companies like Wal Mart, which employs 800,000 employees, have 
indicated they would drop health coverage.
  The Chamber of Commerce announced they would have no choice but to 
recommend to their member companies to drop health insurance if the 
House-passed bill were enacted into law in its current form.

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  Overall, I believe about 36 percent of the employers in this country 
have said they'd stop offering coverage. This Congress must not allow 
that to happen.
  Will these bills hike the costs for families and their employers? 
Both bills will, even though Senate Republicans believe we have come up 
with a better bill that addresses the complexities of the health care 
system and gives patients the care they need without unreasonably 
raising their costs.
  The CBO has said, in February, that the House-passed bill would 
cancel coverage for over a million Americans, increasing costs of 
private health insurance premiums by an average of 4.1 percent above 
inflation. This driving up of the costs of medicine does little to 
improve the quality of care.
  Equally important as costs, is the issue of expanding lawsuits, or 
the liability debate. I fought to prevent the Senate bill from 
including an expanded right to sue last summer, and 52 of my colleague 
agreed with me.
  They recognized that consumers don't get much from these lawsuits. 
They don't get greater care. They don't get much money for their 
troubles either, because the lawyers take most of any settlement or 
award.
  If the truth be known, lawsuits have never been a friend of the 
patient.
  Nothing confirms this fact better than a recent IOM report, To Err is 
Human: Building a Safer Health System, that finds unreported medical 
reports are killing alarming numbers of patients every year.
  This report, based on the hard work of experts at the National 
Institute of Medicine, concluded that the threat of lawsuits actually 
prevents hospitals, doctors, and other health care professional from 
reporting mistakes and errors that they have made.
  We are not just talking about a few cases, but the report concluded 
that as many as 98,000 people are killed each year because of such 
things as:
  Poor handwriting by doctors, which often causes pharmacists to 
misread drug prescriptions and issue the wrong drug and/or dosage.
  Unfamiliarity of doctors, and health professionals with the rapidly 
changing and emerging technologies that are being introduced in health 
care today. These technologies pose new hazards for patients, and 
professionals simply do not have competency and are not continually 
retrained.
  The recommendations suggest that these errors are hidden for fear of 
malpractice lawsuits.
  More importantly, the report suggests that doctors, hospitals and 
other health care providers will never report errors without protection 
from the threat of litigation.
  So what is the answer to the horrible fact that thousands of 
Americans are dying each year because of unreported medical mistakes?
  The IOM report calls for a national effort, and I agree that we have 
to work with every aspect of health care in this country to turn those 
numbers of deaths around. We need our public agencies responsible for 
the public health, like HHS, HRSA and the Agency for Health Care Policy 
Research and Quality involved. We need state agencies and public health 
institutions involved.
  All of these folks need to engage the entire health care industry in 
a broad range of quality and safety issues. This is absolutely the 
direction we must go to prevent medical mistakes.
  The report suggests that all these folks should work together to 
develop standards for safety and define minimum levels of performance 
for every health care organizations. All these efforts should focus 
public attention on patient safety. We know how to prevent many of 
these medical mistakes, and real reductions in errors are achievable if 
we focus on patient safety.
  President Clinton also wants to require every state to create 
mandatory reporting systems to collect information on medical errors. 
However, I haven't really heard very many folks say they support a 
mandatory system; most don't believe it will solve the problem.
  Even the Administration official who presented the plan to the Health 
and Education Committee several weeks ago, acknowledged that a 
mandatory system of reporting may not be the best approach. Dr. John 
Eisenburg, director of the Agency for Health Care Research and Quality, 
admitted that some of the criticism of the proposal was ``on target.''
  He said, ``Do we know if these programs [mandatory reporting 
programs] work? No, we don't. We don't know how well they work, and 
when they work best.''
  The Health and Education Committee has had four hearing on this 
issue, and we have heard one thing time and time again: as long as 
there is the fear that reported data--whether it is supposed to be 
confidential or not--will be ferreted out and used by an aggressive 
trial bar, we will never be able to reduce medical error rates. Unless 
we do something about liability, there will never be a real and 
substantial effort made to report medical mistakes.
  The American Hospital Association had this to day, ``Our concern is 
around the protection of the information that's contained in those 
reports. Any enterprising malpractice attorney is going to be able to 
track back to the caregivers.'' So, the fear of blame and lawsuits is 
too great.
  When the American Medical Association testified at this hearing, they 
opposed mandatory reporting, saying that, ``The president has the cart 
before the horse. He'd put in place mandatory reporting, then study it 
and do something different if it doesn't improve patient safety''
  My colleague, Senator Hagel, also specifically asked Dr. Dickey what 
she thought of the IMM's conclusion that there be some liability 
protections vis-a-vis this important issue--patient bill of rights.
  You know what she said? She basically said that they wanted the 
flawed liability legal remedies and failed legal system that has harmed 
the doctor's practice of medicine for so many years applied to HMOs, 
and then and only then should we fix the mess for everyone.
  Where is the logic in that? That does not sound like the answer to 
me. Shouldn't we acknowledge that, yes, this system that has caused 
defensive medicine and cost society in terms of quality health care for 
decades, and killed people according to the IOM, should be fixed before 
we expand its breadth to anyone else?
  So, Mr. President, I say that liability has never been a friend to 
patients and the unfortunate findings about annual deaths in the IOM 
report are the best evidence of that fact. This IOM report is very 
important in our deliberations, and none of us should lose sight of 
this fact.
  I also believe that my constituents back in New Hampshire should not 
have to deal with a greatly complicated regulatory bureaucracy. You 
know, a patient that has a question about his coverage or some other 
aspect of his health plan wants a straight answer to a question.
  I want to highlight this fact: The consumer wants a straight answer. 
Ultimately, he should be able to call his health plan and receive 
reliable information.
  If the answer he gets is not the answer he wants, the patient should 
have a means of redress. Under the Senate passed bill, we have set a 
system that lets doctors take a look at what doctors are deciding for 
patients.
  Under the Senate passed bill, concerns are addressed by a doctor 
specializing in the patient's type of problem. The doctor is 
independent, and makes that decision.
  There are several levels of independent medical review where a 
patient can go outside the insurance plan and have another doctor who 
specializes in the same type of problem look again at the patient's 
needs and decide if the patient should or should not have the requested 
service or treatment.
  This is an approach designed to get the patient care, and get the 
patient good care.
  The House-passed bill also has an appeals process, but I am very 
concerned its design is more about creating more lawsuits, and putting 
more money in attorneys' pockets.
  What will patient's get out of this? They won't get the care they 
need. So we think we have come up with a better idea.
  In conclusion, let me say that patients really want and need to be 
put back into the health care equation, and I think that has been 
acknowledged on both sides.

[[Page S1113]]

  That is why many of the provisions in both bills are very similar. I 
think the provisions on plan information in both bills are similar and 
there is common ground from which we can work.
  We both give Americans expanded new rights to go to an emergency room 
and get the care they need without worrying about having to fight with 
their insurer over who will pay for this care.
  We both greatly expand access to specialists. Both bills allow direct 
access to a pediatrician for children, and for women seeking primary 
and preventative ob/gyn care.
  So, we are close on very many of the issues that are important to 
most Americans. These are major issues that I believe we can come to an 
agreement on.
  Other issues will be difficult to resolve, but I am committed to 
sitting down with colleagues on the other side of the aisle to discuss 
these issues, and will promise to negotiate in good faith.
  We may not agree yet, but I am hopeful. I think Democrats and 
Republicans share a goal of wanting to ensure individuals have access 
to safe and appropriate health coverage. So I am positive about this 
conference.

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