[Congressional Record Volume 147, Number 84 (Monday, June 18, 2001)]
[Senate]
[Pages S6384-S6386]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      THE PATIENTS' BILL OF RIGHTS

  Mr. SPECTER. Mr. President, I have sought recognition to comment 
about the legislation which is due to come to this Chamber tomorrow. I 
thought it might be useful to focus on a Dear Colleague letter which I 
sent out last week, which reads as follows:

       A key point of controversy on legislation now pending in 
     the Senate is whether patients will be permitted to collect 
     damages from insurance companies without a statutory 
     limitation. Under more than 200 years of common law 
     precedents, a harmed plaintiff has been able to recover 
     compensation as set by a jury for economic losses and pain 
     and suffering when a defendant is negligent and punitive 
     damages for gross, malicious or intentional misconduct.
       The McCain-Edwards-Kennedy Bill, of which I am a co-
     sponsor, provides for Federal court jurisdiction on the issue 
     of whether a claim is covered by the contractual provisions 
     of a health care plan and for state court jurisdiction on 
     medical malpractice claims.
       Serious concerns have been raised to that bill because of a 
     history of very high verdicts in state courts on personal 
     injury claims which could significantly raise the cost of 
     health care in the United States. There is substantial 
     experience that Federal court trials result in a more 
     reasoned and judicious result in malpractice cases.
       I intend to offer a compromise amendment which would 
     maintain Federal court jurisdiction under McCain-Edwards-
     Kennedy for coverage claims (which have also been referred to 
     as quantity or eligibility decisions) and extend Federal 
     court jurisdiction, excluding state court jurisdiction, on 
     medical

[[Page S6385]]

     malpractice claims (which have also been referred to as 
     quality or treatment decisions) which would preserve 
     plaintiffs' traditional common law remedies in a more 
     reasoned judicial setting.

  The consequences of ERISA have been extremely complicated. Enacted in 
the early 1970s, it has been held in many, many cases to bar plaintiffs 
from recovering for personal injuries. Cases brought under ERISA, 
section 502, are governed by the doctrine of complete preemption, which 
applies when Congress so completely preempts a particular area of law 
that any civil complaint raising this select group of claims is 
necessarily Federal in character.
  Under section 514, a plaintiff's claim is barred if the claim relates 
to an employee benefit plan. If a plaintiff's claim does not relate to 
an employee benefit plan, then the claim is not barred and is heard in 
State courts. There is a growing line of cases finding that State 
causes of action, States' Patients' Bill of Rights, do not relate to an 
employee benefit plan and, therefore, are not preempted if they address 
the quality of services to be provided.
  There have been many cases in this complicated field, and they are 
referred to by the Court of Appeals for the Fifth Circuit in a case 
decided slightly less than a year ago on June 20, 2000, in a case 
captioned Aetna Health Plans of Texas, Inc., v. the Texas Department of 
Insurance. There the Fifth Circuit noted that the courts have 
``repeatedly struggled with the open-ended character of the preemption 
provisions of ERISA'' and also the Federal Employees Health Benefits 
Act.
  The Fifth Circuit goes on to say:

       The courts have faithfully followed the Supreme Court's 
     broad reading of ``relate to'' preemption under 502(a), in 
     its opinions decided during the first twenty years after 
     ERISA's enactment. Since then, in a trilogy of cases, the 
     [Supreme] Court has confronted the reality that if ``relate 
     to'' is taken to the furthest stretch of its indeterminacy, 
     preemption will never run its course, ``for really universal 
     relations stop nowhere.''

  There has been a succinct summary of the key issues raised by ERISA 
preemption in a case decided earlier this year on March 27, 2001, by 
the United States Court of Appeals for the Third Circuit, captioned 
Pryzbowski v. United States Health Care Incorporated. In Pryzbowski, 
the court noted prior Third Circuit opinions where the court 
distinguished between claims directed to the quality of the benefits 
the plaintiff received versus claims that the plans erroneously 
withheld benefits, that is, claims that seek to enforce plaintiff's 
rights under the terms of their respective plans or to clarify their 
rights to future benefits. In Pryzbowski the Third Circuit went on to 
say that:

       We stated that claims that merely attack the quality of 
     benefits do not fall within the scope of section 502(a)'s 
     enforcement provisions and are not completely preempted, 
     whereas claims challenging the quantum of benefits due under 
     an ERISA-regulated plan are completely preempted under 
     section 502(a)'s civil enforcement scheme.

  The Third Circuit then went on to note:

       Though the quality-quantity distinction was helpful in 
     those cases, we have acknowledged that the distinction would 
     not always be clear.

  From Pryzbowski and other cases, it is apparent that if a Patients' 
Bill of Rights is enacted which gives the Federal courts jurisdiction 
over the scope of the plan, or the so-called quantity decision, and the 
State courts jurisdiction over the quality or the treatment decision, 
then there will be a plethora of nearly endless litigation as to what 
belongs in which court. The court decisions are replete with cases 
where the facts have been analyzed. It is frequently very difficult to 
distinguish between the two categories, quantity or quality, and it 
often ends up with the case remanded for other facts to be determined.
  It is my suggestion that the Federal court retain total jurisdiction 
over both category of cases, whether they are the quantity decisions, 
which relate to eligibility decisions, or the quality decisions, which 
relate to treatment decisions. My suggestion is that it would be much 
preferable to have exclusive jurisdiction vested in the Federal courts.
  There is considerable concern about excessive verdicts in State 
courts when contrasted with the more judicious decisions in the Federal 
courts. What my compromise suggests is that by giving exclusive 
jurisdiction to the Federal courts, traditional plaintiff's damage 
claims could be retained without so-called caps or limitations.
  There has been enormous concern about what would happen if the 
Patients' Bill of Rights refers to the State courts these medical 
malpractice cases without any limitation on damages.

  Last year, the Judiciary Committee considered amending diversity 
jurisdiction in class action cases because diversity jurisdiction was 
so easily defeated when a class of plaintiffs would sue a defendant. If 
there was a single plaintiff residing in the same State as the 
defendant, then diversity was defeated.
  This legislation, which amended diversity jurisdiction and was passed 
out of the Judiciary Committee, was sought by so many defendants who 
felt unfairly treated by State court decisions. The report of the 
Judiciary Committee on the Class Action Fairness Act of 2000 (S.R. 106-
420) contains some statements which are relevant to consideration of 
having medical malpractice cases tried solely in the Federal courts 
rather than the State courts.
  This is what the Judiciary Committee report said at page 15:

       The ability of plaintiffs' lawyers to evade Federal 
     diversity jurisdiction has helped spur a dramatic increase in 
     the number of class actions litigated in State courts--an 
     increase that is stretching the resources of the State court 
     systems.

  Then on page 16, the Judiciary Committee majority report goes on to 
point out the concern of unfairness in State court actions saying:

       The Committee finds, however, that one reason for the 
     dramatic explosion of class actions in State courts is that 
     some State court judges are less careful than their Federal 
     court counterparts about applying the procedural requirements 
     that govern class actions. Many State court judges are lax 
     about following the strict requirements of rule 23 (or the 
     State's governing rule), which are intended to protect the 
     due process rights of both unnamed class members and 
     defendants. In contrast, Federal courts generally do 
     scrutinize proposed settlements much more carefully and pay 
     closer attention to the procedural requirements for 
     certifying a matter for class treatment.

  Then the Judiciary Committee majority report goes on at page 17 to 
point out:

       A second abuse that is common in State courts class actions 
     is the use of the class device as ``judicial blackmail.'' 
     Because class actions are such a powerful tool, they can give 
     a class attorney unbounded leverage. Such leverage can 
     essentially force corporate defendants to pay ransom to class 
     attorneys by settling--rather than litigating--frivolous 
     lawsuits.

  The majority report then goes on to say:

       State court judges often are inclined to certify cases for 
     class action treatment not because they believe a class trial 
     would be more efficient than an individual trial, but because 
     they believe class certification will simply induce the 
     defendant to settle the case without trial.

  Now, in citing these references to the Judiciary Committee report, I 
do not seek to impugn all State court judges because most State court 
judges are careful and judicious and follow settled principles. But 
there have been a considerable number of these certifications of class 
actions, and there have been many cases which involve forum shopping, 
judge shopping, which seek to go to specific counties or specific 
States where there are excessive verdicts.
  By contrast, the Federal courts have an established reputation where 
there is different selection of judges. In many States, judges are 
elected--my own State of Pennsylvania. Here, again, I am not intending 
any broad condemnation, but in the Federal courts, where judges are 
selected for life tenure, it is fair to say that the caliber of the 
judiciary is superior. That, again, is a generalization.
  Again, there are many fine State court judges. But the experience in 
the State courts, as illustrated by this class action report, gives 
grave concern to many who are worried that if the Patients' Bill of 
Rights is enacted and there are unlimited damages possible in State 
court (medical malpractice cases), which is now the provision under the 
McCain-Edwards-Kennedy bill, that there will be widespread abuses. 
Those same concerns are not found with respect to these malpractice 
cases in the Federal courts.

[[Page S6386]]

  We are about to enter on to a difficult and protracted debate on a 
Patients' Bill of Rights. It is my view, and has been, as reflected in 
the votes I have cast on the Senate floor for several years now, that 
America needs a Patients' Bill of Rights and that the traditional 
remedies not be capped or limited. But a good tradeoff, in my judgment, 
would be that exclusive jurisdiction would be vested in the Federal 
courts. This is not really a problem for plaintiffs of ``forum non 
conveniens''--the Latin phrase which means an inconvenient court--
because there are underlying Federal questions on ERISA. And even when 
cases are brought in the State court, invariably, they end up on 
removal actions in the Federal court. When you start to try to make 
distinctions under ERISA 502, ERISA 514, trying to distinguish between 
the quantity of coverage versus the quality of coverage, they 
necessarily overlap; and it will be a saving of judicial resources if 
all of those cases are heard in the Federal court. I ask my colleagues 
to consider this.
  I ask unanimous consent at this time that the full text of my Dear 
Colleague letter, dated June 13, be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                                    June 13, 2001.
       Dear Colleague: A key point of controversy on legislation 
     now pending in the Senate is whether patients will be 
     permitted to collect damages from insurance companies without 
     a statutory limitation. Under more than 200 years of common 
     law precedents, a harmed plaintiff has been able to recover 
     compensation as set by a jury for economic losses and pain 
     and suffering when a defendant is negligent and punitive 
     damages for gross, malicious or intentional misconduct.
       The McCain-Edwards-Kennedy Bill, of which I am a co-
     sponsor, provides for Federal court jurisdiction on the issue 
     of whether a claim is covered by the contractual provisions 
     of a health care plan and for state court jurisdiction on 
     medical malpractice claims.
       Serious concerns have been raised to that bill because of a 
     history of very high verdicts in state courts on personal 
     injury claims which could significantly raise the cost of 
     health care in the United States. There is substantial 
     experience that Federal court trials result in a more 
     reasoned and judicious result in malpractice cases.
       I intend to offer a compromise amendment which would 
     maintain Federal court jurisdiction under McCain-Edwards-
     Kennedy for coverage claims and extend Federal court 
     jurisdiction, excluding state court jurisdiction, on medical 
     malpractice claims which would preserve plaintiffs' 
     traditional common law remedies in a more reasoned judicial 
     setting.
       Since the Patients' Bill of Rights will be on the Senate 
     floor next week, I thought it useful to call this proposal to 
     your attention so that you may consider it. My staff and I 
     are available to respond to questions and to amplify the 
     details of this proposed compromise since this is a 
     simplified statement on complex legal issues.
           Sincerely,
                                                    Arlen Specter.

  Mr. SPECTER. I thank the Chair for sitting late. It is not easy to 
come in on a Monday afternoon. The distinguished Senator from Utah, a 
senior Republican on the Judiciary Committee, has performed 
extraordinary service. I thought it not unfitting that I should cite 
his report on class action cases since he was the author of those 
pearls of wisdom I quoted.
  I believe that concludes our business.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senate stands 
adjourned until 10 a.m. tomorrow.
  Thereupon, the Senate, at 4:03 p.m., adjourned until Tuesday, June 
19, 2001, at 10 a.m.

                          ____________________