[Congressional Record Volume 147, Number 89 (Monday, June 25, 2001)]
[Senate]
[Pages S6835-S6844]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BIPARTISAN PATIENT PROTECTION ACT
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will now resume consideration of S. 1052, which the clerk will
report.
The assistant legislative clerk read as follows:
A bill (S. 1052) to amend the Public Health Service Act and
the Employee Retirement Income Security Act of 1974 to
protect consumers in managed care plans, and other health
coverage.
Pending:
Frist (for Grassley) motion to commit to the Committee on
Finance and the Committee on Health, Education, Labor, and
Pensions with instructions to report back not later than that
date that is 14 days after the date on which this motion is
adopted.
Gramm amendment No. 810, to exempt employers from certain
causes of action.
The ACTING PRESIDENT pro tempore. The Senator from North Carolina.
Mr. EDWARDS. Mr. President, we come back today to resume debate on a
very important bill to the people of this country, the Bipartisan
Patient Protection Act, which we spent the better part of last week
debating. It is an issue about which we have talked a great deal over
the course of the last few years in the Senate. Let me discuss what the
McCain-Edwards-Kennedy bill does and the reason it is important.
Fundamentally, the reason we need this bill is that the law needs to
be taken from being on the side of the
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HMOs and put on the side of patients and doctors so health care
decisions in this country are, in fact, being made by people who are
trained and have the experience to make them, those being the doctors,
the health care providers, for the families who are so dramatically
affected by those decisions.
The purpose of this legislation is to provide certain substantive and
enforceable rights to families and to children who need quality health
care. For example, we provide specifically that if a member of a family
or child needs to see a specialist, particularly outside the HMO plan,
they can have access to that specialist.
Second, we ensure that patients who need access to clinical trials
will have access to those clinical trials. Clinical trials are often
the places of last resort, places where the cutting edge of medicine is
being researched, and we want to be sure patients who have exhausted
alternatives and need access to clinical trials--all federally approved
clinical trials, including FDA clinical trials--will have access. We
specifically provide that benefit in this bill.
Third, women should have access to an OB/GYN as their primary care
provider. Many women rely on OB/GYNs as their primary care providers.
We provide that right in our legislation.
Fourth, we want to make sure patients have access to emergency room
care. If a family suffers an emergency crisis and needs to go directly
to the hospital, the nearest hospital, we don't want people to first
have to call the HMO, call the 1-800 number and get permission to go to
the nearest emergency room. There have been many horror stories of
families that could not go to the nearest emergency room because they
couldn't afford it and the HMO would not pay for it. We want to be sure
families have that right.
With this group of rights we wish to provide for patients and
families across the country, we want to make sure every individual and
family who is covered by health insurance, covered by HMO coverage, is
in fact covered by this legislation. Our bill does that.
These rights do not mean anything unless they are enforceable, unless
they have the force of law behind them. Without the force of law behind
them, they are not a Patients' Bill of Rights; they are a patients'
bill of suggestions. We want to provide a meaningful way for patients
to receive the rights we are giving.
We provide several stages. If the HMO overrules the doctor and says,
whatever your doctor says, I don't believe that treatment, that care,
is needed, the first step is that the patient can then go through an
internal review within the HMO to try to get that decision reversed,
hopefully finding a group of people within the HMO who are willing to
be more objective and support the decision the doctor has provided. If
that is unsuccessful, the second stage is an independent review
process, a panel of physicians with expertise who can look at the
medical situation and decide whether or not that care should have been
provided in the first instance. Last, if the patient has been injured
and if these other areas have been tried, including the appeals
process, the patient can take the HMO to court.
There are several stages: First, the HMO hopefully will make the
right decision, in which case none of this will be necessary; second,
if they don't, an internal review within the HMO to reverse the
decision that has already been made; third, if that is unsuccessful, to
go to an independent group of doctors who can reverse the decision of
the HMO. That is independent, meaning not connected to the patient, not
connected to the treating doctor, not connected to the HMO. So you have
an impartial group that can reverse the decision. All of that occurs
before a case goes to court.
If in fact it becomes necessary for the case to go to court, we
simply want the HMOs--that for many years now have been privileged
citizens that, like diplomats, get a kind of immunity in this country--
we want the HMOs treated just as everybody else.
If they are going to reverse or overrule decisions that are being
made by doctors, we want them to be treated exactly the way the doctors
are treated; that is, if they make a medical judgment, reverse the
decision of a doctor, their case will go to the same court as the
doctor's case. Their case would be subject to the same State court
limitations on recoveries as is the doctor's. So we leave that issue to
State law.
But the bottom line principle is, No. 1, HMOs should not continue to
be privileged citizens. They ought to be treated as all the rest of us.
There is no reason in the world that they are entitled to be treated
better than everybody else.
No. 2, if they are going to be in the business of reversing doctors,
overruling doctors, making health care decisions, then they ought to be
treated exactly the same way the doctors are treated.
Our legislation providing real and meaningful rights, providing a way
to enforce those rights, and as a matter of last resort providing for
patients to go to court if in fact they have been hurt and they have no
other choice, is supported, we believe, by a majority of this body, we
believe a majority of the House of Representatives, and importantly, by
the American Medical Association, and virtually every health care group
in America.
There is a reason for that. It is because the people who have been
fighting for patient protection, the people who have been fighting for
HMO reform to change this system we have in this country and to give
patients more power to put the law on their side, are supporting our
bill because we have real rights that are enforceable. It is a bill
where the patient, along with the patient's doctor, gets to make most
health care decisions. They have more control over their health care
decisions. If the HMO does not do the right thing in the beginning,
they have a way to do something about it to get those decisions
overruled or changed.
There has been some discussion over the course of the last 2 days on
the pending amendment, the issue of employer liability. We start, I
think, in principle, in agreement with the President of the United
States. The President said in his written principles that he did not
want employers to be held responsible in litigation--I am paraphrasing
now--unless they actually made individual health care decisions. That
is what our bill does.
The reason for that is very simple. No. 1, we want to protect
employers. In principle, we agree about that. No. 2, if an employer, in
fact, overrules an HMO and stands in its shoes, or overrules a doctor,
then and only then under our bill can they be held responsible, or if
they overrule the HMO with respect to how the plan applies. Basically,
what we have done is we have put a wall around employers unless they
step into the shoes of HMOs and start making health care decisions.
Issues have been raised. They have been raised in this debate by
Senator Gramm with his amendment. Issues have been raised by employers
around the country with whom we have been talking and with whom we will
continue to talk. As a result of those discussions, consistent with the
principle that both the President of the United States and we have
established, we have worked and we have had meetings, I will tell my
colleagues, over the last few days. On Friday, for example, I met with
a number of Senators from both sides of the aisle, Democrat and
Republican, to try to address the language, to try to craft language
that will deal with concerns that people have about this issue--a
bipartisan compromise on this issue. We are continuing to work on that
compromise. There are a number of Senators involved. We will continue
to work on it.
But the amendment that is pending is at the extreme. It is
inconsistent with the principles established by the President of the
United States; it is inconsistent with our legislation, which is
supported by virtually every health care group and consumer group in
America. It is more extreme than the Norwood-Dingell bill that passed
the House of Representatives last year. It is out there at an extreme.
We believe there is a better, more reasonable middle-of-the-road
approach that will provide maximum protection to employers and at the
same time not completely eliminate patients' rights. That is what we
are working on. We are working on crafting language.
This is one of the issues on which we agree in principle with the
President; that is, we start with the idea we would like to see
employers protected unless they are overruling doctors and making
individual health care decisions. Of
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course, the vast majority of employers in this country never do that.
They turn over the handling of the day-to-day operation of their health
care plan to the people they are paying and leave it in their hands.
When they do that, they will not be exposed to responsibility.
The bottom line is, what we have done in our legislation is
consistent with what the President's principle provides. Even with
that, since additional concerns have been raised about employers, since
it is an issue about which we agree as a matter of principle, we are
continuing to work with both Republican and Democratic Senators to
craft a compromise which we hope a vast majority of the Members of this
Senate will be able to support when we propose it.
That issue, the issue of employer liability, as I indicated, is an
issue on which I think we have substantial agreement. It is an issue I
think we can resolve to the satisfaction of a majority of the Senate.
We believe our bill as presently constructed does that. But in the
spirit of trying to have strong bipartisan support for this bill, we
have continued to work on it, and we will continue to do so.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Chair recognizes the
distinguished Senator from New Hampshire.
Mr. GREGG. Mr. President, the Senator from North Carolina has
outlined and characterized the situation. I would like to speak to some
of the points he made and then specifically speak to a variety of
issues.
To begin with, much of what the Senator said we agree with, I agree
with, and I think everybody agrees. There is no issue over access to
emergency rooms. There is no issue over access to OB/GYNs. All those
issues have been agreed to. They were agreed to last year. They were
agreed to this year.
There is no issue about the need to make sure that when someone is
injured by their HMO or their provider or their insurer, they have
recourse. There is no issue about that. Everybody is in agreement.
The issues come down in the classic way, in the classic line, to
``The devil is in the details.'' The bill as brought forth by Senator
McCain, Senator Edwards, and Senator Kennedy is essentially a ``let's
go to court'' bill. It is not a Patients' Bill of Rights bill. I have
referred to it as a ``lawyers who want to be millionaires bill,'' and I
have referred to it in other terms, but essentially it is a lawyers'
rights bill. It creates an incredible number of new opportunities to
bring lawsuits.
We just happened to go through and outline some of these and this
chart shows them. First, you can sue your employer. Under this proposal
as it is structured. That should not be our goal. Our goal should not
be to create lawsuits against the employers in the country. I noticed
my colleague always used the term ``health maintenance'' organization,
HMO. It is a pejorative--or it has become pejorative. I never heard him
use the word ``employer.'' Yet for the 56 million people who are
covered by self-insured plans--plans where the employer is the one who
gets sued--the fact is, you can sue the employer. What is the practical
effect of that? We know the practical effect is a lot of employers are
going to drop their insurance so the people who have insurance today
will not have it tomorrow if this bill is passed because the employers
are going to say: Hey, I am not in the business of being sued for
health care problems. If a doctor makes a mistake, I don't want to be
sued. If I make a product and make a mistake, I understand I will be
sued, but I don't want to be sued if a doctor or nurse or pharmacist or
hospital makes a mistake. I don't want to be put out of business for
that.
We are talking about mom-and-pop employers. We are talking about
employers who have 10, 15, 20 employees.
The average cost of a malpractice suit is $77,000. So you have a
situation where their whole profit for the year may be wiped out. Maybe
you are running a small grocery store or a restaurant or a gas station.
You will be wiped out because you will have to defend the suit even
though you had nothing to do with it as an employer.
This bill as structured has massive liability for employers. They can
be sued in the Federal court or in the State court, which is really
ironic.
Brand new causes of action: There are almost 200 new causes of action
under this bill for ministerial activities under which an employer may
make a mistake. The damages are unlimited under those causes of action.
It is not $100 or $200. It is not a fine from the Labor Department as
it is under present law or a fine from HHS as is under present law.
There is a new private cause of action that accrues against the
employer for not sending the proper forms or for not informing you or
for not sending you the right magazine. For anything that is under
HIPAA or anything under COBRA or anything that is under ERISA, they are
suddenly liable as the employer under this bill. They are brought in
under this bill, and they are liable. There are 200 new causes of
action.
The damages under this bill are unbelievable. Obviously, it is a bill
written by the trial lawyers because there are no limitations on
economic, noneconomic, or punitive damages. By putting on a new title,
they are trying to go around with this classy, misty, ``special
assessment'' In Federal court, there is a limit of $100 million in
punitive damages. Of course, they do not tell you that you can go to
State courts, and in most States there is no limit on damages. This new
``special assessment'' is just window dressing.
Punitive damages are uncapped, economic damages are uncapped, and
noneconomic damages are uncapped.
This is a lawyer's fantasy world. It is similar to a lawyer walking
into Disney World to pick their forum, their most interesting forum,
State or Federal. They can pick hundreds of suits. They can pick
unlimited damages--economic, noneconomic.
You are going to see employers dropping their health insurance like
hotcakes as a result of this; you can go straight to court.
I heard the Senator from North Carolina say: Internal appeal process,
you have an external appeal process. Then, under very similar certain
circumstances you can go to court. Hey, with this bill you can go
straight to court.
There isn't a good lawyer in this country who would not skip the
external appeals process the way this bill is structured. This is
probably the single biggest problem this bill has because it is the
external appeals that will settle most of the differences a patient has
with their employer--whether it is an employer or an HMO--because, if
you have a good external appeals process with medical expertise and
independent resources, and if you require the two parties to pursue
that external appeal, then at the end of the external appeal the odds
are very good that the resolution is going to be fair, the parties are
going to accept it, and you won't have a court action. I suspect court
actions would be rare with a good external appeals process.
A good external appeals process is one such as in the Nickles bill
last year or such as is in the Frist-Jeffords bipartisan bill. It is a
tripartisan bill. It is tripartisan because there is an independent, a
Republican, and a Democrat on the Frist-Breaux-Jeffords bill, which
essentially says you can skip the external appeals and go to court. But
all you get when you do that is an opportunity to get your problem
taken care of. You don't get awards. You don't get awards for going to
court. You essentially get taken care of, which is appropriate if you
have a situation where the injury is immediate and the harm is
continuing. You should be able to go to court during the external
appeals process and get that taken care of, if it is necessary. That is
the way the Frist-Breaux bill is written.
The way their bill is structured, you go to court, period. You don't
even bother with external appeals. You allege your harm. They claim it
is not alleged anymore. But, essentially, it is alleged, and you are in
court. You get your damage claim going; you start suing like crazy. You
pick the forum that is best, the jury that is the best, the courts that
are best, and the best States, and you are off and running in the court
system.
That is the way this bill is intentionally structured. It is not an
unintentional event. This bill is intentionally structured in order to
get more lawsuits, and in order to get more opportunities to create
lawsuits. It couldn't be done for any other reason.
When you look at this list, ``statute of limitation''--what statute
of limitation? For all intents and purposes, they
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have no statute of limitation under this bill because you can
essentially bring a cause of action after 180 days. The external
appeals process is eliminated. All you have to do is claim that you
have just found the injury and you are off and running again. Ten years
after the event, the statute of limitation is almost irrelevant under
this bill.
As I mentioned, forum shopping, picking your forum, is a classic
love-fest for plaintiff's lawyers.
The first thing you are taught in the trial practice courses when you
go to law school is forum shopping. That is black letter education in
law school. I was there. I know. I even passed that course. I think I
put down ``forum shopping'' on every answer.
This bill puts it right at the top of the list, as you might expect.
Two bites at the apple: You can sue in both courts. They are not happy
enough with forum shopping.
The avarice of the trial bar in designing this bill is almost
humorous it is so aggressive. They weren't happy to just put in forum
shopping, which doesn't exist today. They had to go with simultaneous
forums. You can bring the lawsuit in both courts. You can go to State
and Federal at the same time. It is lawsuit Disney World.
Of course, you can bring multiple lawsuits. I sue, you sue, and
everybody sues under this bill.
You can have class action suits, which is something you can't have
under present law. There is a very good reason for that under federal
law.
What is the practical effect? This is the bottom line. With all of
these lawsuits, you end up with a bill that, if it were to pass,
according to OMB's estimates, would cause 4 million to 5 million people
to become uninsured. According to the CBO estimate, it is 1.3 million.
Either way, it is a huge number of people.
They don't get patients' rights under this bill. They get no
insurance under this bill because their employers are not going to be
able to afford or justify giving that benefit in exchange for all the
lawsuits to which they would be subjected.
What is going to happen in the real world? The bigger employers will
say: All right, I know you need health insurance, but we can't manage
it anymore because we just can't take the adverse risk of all of these
lawsuits. So we are going to give you some money as one of your
compensation functions, and you can take that money and go into the
market and buy your insurance.
The only problem is that the employer's insurance plan is inevitably
going to have been much better--much better for the employees than what
they can go out and buy with the dollars or the voucher they are given
by the employer because the employees will be out there with one
voucher trying to buy their insurance in an open market, and they won't
have a whole lot of market force behind them. But an employer that
maybe employs 50, 100, or even 15,000, 20,000, or maybe even 50,000
people, has huge market clout. They can get better rates, and therefore
they can get better options. They can maybe get eyeglass options or
drug options or a variety of other options that the employees can't get
with the voucher they are going to be given by large employers.
A lot of people may not lose their insurance altogether, but the
quality of their insurance under this bill is going to drop radically.
Then there are the other people who do not use employers. They are
self-insurers who do not have a lot of employees. There are 100, 50,
35, or 20 people. These employers are going to say to their employees:
We are sorry; we can't afford it at all. We can't afford it at all.
You are going to have a lot of people without any insurance, period.
That is the practical effect of this. There are negotiations going
on. There are ways to fix this. They are not radical. They are not
reactionary. They are reasonable. In fact, they are so reasonable that
they have been put forward by Senators Frist, Breaux, and Jeffords. As
I said, it is a tripartisan bill. They have a liability section which
makes sense. It is not just limited to designated decisionmakers. It is
a much broader term than that. It goes to this whole issue of external
appeal. It goes to the issue of punitive damages and to the issue of
forum shopping. It goes to the issue of bringing in all these causative
causes of actions under COBRA, ERISA, and HIPAA which are not
appropriate in this bill.
So if you want to fix this bill--I hear the other side saying that on
occasion; I am not sure if they really mean it. But if they want to
really fix the bill, just take the Frist-Breaux-Jeffords language en
bloc in the area of liability and put it in the bill. The bill would be
fixed in the area of liability and external appeals. Do we see them
doing that? No.
There was some discussion in this Chamber earlier about this pending
amendment by the Senator from Texas, who I see is in the Chamber. The
discussion from the other side essentially was: OK, you say you don't
want employers to be liable. Texas law does not allow employers to be
liable, so let's adopt the Texas law.
Why was that amendment offered? Because the other side of the aisle
specifically said they wanted to have a bill that was almost identical
to Texas law. In fact, the Senator from North Carolina used those
terms. He said: This bill, as structured, is almost identical to the
Texas law. So the Senator from Texas said: If it is almost identical to
Texas law, let's just put the Texas law language in, which is what his
amendment does; it puts the Texas law language in. And it is pretty
reasonable. It is the Texas language. So now the bill would not be
almost identical; it would be identical.
Since a number of the Members on the other side of the aisle said: We
want the Texas law, we want what President Bush had in Texas, the Texas
law is acceptable and what President Bush had in Texas, the Senator
from Texas said: OK, we will put the Texas law in as an amendment. If
the two are the same--and the two are the same--everybody will vote for
this. We will not have to have a rollcall vote on it; we can have a
voice vote.
I think you will find it is opposed by Senators on the other side of
the aisle. The simple fact is, their law does not exempt employers, as
does the Texas law. Their law does not exempt the lawyers. Theirs makes
the employers, carte blanche, liable and opens up all kinds of
opportunities to sue them, without caps, with punitive damages, and in
whatever form they want to choose. The Texas law does not allow that to
happen. The Texas law does protect the employer and does limit damages.
So I look forward to the vote on this amendment. I think it will test
whether or not the statements coming from the other side of the aisle--
that they want the Texas law--are backed up by a vote.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Thomas). The distinguished Senator from
North Carolina.
Mr. EDWARDS. Let me respond briefly to some of the comments made by
my colleague from New Hampshire.
This is the same tired old rhetoric the HMOs have been trotting out
for years now to keep any kind of reform from occurring. They are now,
by the way, spending many millions of dollars on lobbyists and public
relations campaigns, and on television, to try to defeat any kind of
reform.
These are the same arguments we have heard before. We need to get
past that. We need to get to talking about providing real protections
and real rights for patients. That is what Senator McCain and I did. We
worked for many months on this legislation to address many of the
issues about which my colleague has just talked but nothing ever
changes. No matter what we bring to this Chamber by way of patient
protection, we hear these same arguments made. Let me speak to just a
couple of those arguments briefly.
First, on the issue of forum shopping, cases going to State court, I
say to my colleague from New Hampshire, he should see what the Chief
Justice of the U.S. Supreme Court, by way of the Judicial Conference of
the United States, which the Chief Justice heads, said about this
issue. He specifically said in a written letter dated March 3, 2000:
The Judicial Conference urges Congress to provide that, in
any managed care legislation agreed upon, the state courts be
the primary forum for the resolution of personal injury
claims arising from the denial of health care benefits. . . .
What we have done in our bill is exactly what the Judicial Conference
of
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the United States has said should be done. We have done what the
American Bar Association says should be done; we have done what the
Attorneys General of the United States say should be done; and we have
done what the U.S. Supreme Court said, in the Pegram decision, should
be done.
I know it is a wild idea that Senator McCain and I have decided to
adopt the consensus of every objective group in America on this
subject, including the U.S. Supreme Court. I am telling you, they would
complain no matter what we did, because this is the rhetoric of
antireform. That is what this argument is about.
Ultimately, this debate evolves into a very simple question: Are we
going to do something about this problem or are we going to continue to
kill reform legislation? We have to make a decision about whether we
are going to make progress or whether we are going to obstruct
progress.
Another issue my colleague raises is the issue of caps and whether
there are limitations on recovery. He had his chart, which is not here
anymore, that had lots of information about unlimited lawsuits and that
there were to limitations. I sy to my colleague, what we have done,
that he does not like, is we have treated HMOs exactly the same way as
every doctor, every hospital, and everybody else in America is treated.
All of the rest of us, everyone listening to this debate, whether on
television or in person, is treated exactly the way we treat HMOs in
this bill. They do not like that. HMOs, I am sure, would like to
maintain their privileged status. That is why they are spending
millions of dollars to try to defeat our legislation with respect to
the specific issue of employers.
I say to my colleague, the President of the United States--the
Republican President of the United States--and I am reading from his
written principle--says:
Only employers who retain responsibility for and make final
medical decisions should be subject to suit.
Mr. WARNER. Mr. President, will the Senator entertain a question on
that point?
Mr. EDWARDS. I will, yes.
Mr. WARNER. Having had some modest comparison to my distinguished
colleague in the trial courtroom, I know that is a key phrase. I am not
sure just how it is going to end up, or not end up, in the legislation,
depending on the amendments, but I think it would be helpful to have
some legislative history on what the meaning is of an employer
participating in the medical decisions of an employee.
Let's take the example of a small employer. Most often, that employer
has a great deal of personal contact with his employees, has a great
deal of empathy for the employee or his family stricken with some type
of problem.
Suppose I were an employer, and my longtime secretary appears to be
ill, and I say: I think we had better go to the hospital. So I drive
her to the hospital. Maybe some other employee in the firm drives her.
Then, while in the hospital, I went to call on her, and somehow I am
involved in the discussion as to whether or not an operation should be
performed.
What are the circumstances by which the employer could be drawn into
this type of litigation? Depending on how the bill is finally written
and the law is enacted, it could well be that an employer henceforth
just almost has to sever all personal relationships with employees for
fear of getting drawn into a legal case.
I say to the Senator, it would be helpful, based on his experience,
if he would elaborate on that issue and, indeed, point to other
references in the debate or elsewhere so that we might have a
legislative history to guide those who are going to follow this law in
the future.
Mr. EDWARDS. I thank the Senator for his question. I think the
Senator is concerned about some of the same issues others have raised
and on which we have been working. I think it is a legitimate question.
I say to the Senator, what we did in our bill is have language that
was intended to protect employers unless they stepped into the shoes of
the HMO and actually made a medical decision essentially overruling the
HMO. That was conceptually what we did in our bill, and that is
conceptually what the President says in his principle.
But the practical question which the Senator asked is a legitimate
question. That is the reason, I say to the Senator, we are working with
our colleagues across the aisle--Republicans and Democrats--to try to
craft appropriate language, because we do not want to create a
disincentive. We want to protect employers, particularly the small
business employers about which the Senator is talking. But I say to the
Senator, it is not just the small employers.
Although they are a very small part of the population of employers in
this country, we also have self-insured, self-administered plans where
basically the employer is the only entity managing the health care of
its employees.
What we want to do is try to find a way to provide some protection
also for those employers. Those are the kinds of issues--the question
the Senator asked, which is a very fair question, and the issue I just
raised of the self-employed, self administered plan--those are the
kinds of issues we are trying to address without leaving the patient or
the employee completely out in the cold.
I do believe there is a way to do that. It requires some work and
creativity, but it can be done. Our goal in this process is the same.
We want employers to be protected; we want to provide maximum
protection actually for the employers without completely leaving the
employee out, for example.
The problem with completely carving out the employer, as this
amendment does, is that in some cases you may have an employer, a large
employer, where they are a self-insured and a self-administered plan.
Let's say a bookkeeper says, we are not paying for the test for the
child of an employee; that child suffers some serious consequence from
that. Under this carve-out, there is nowhere that child could go
because there is no HMO. It is a self-insured, self-administered plan.
Under the President's language, which says ``only employers who retain
responsibility for and make final medical decisions should be subject
to suit,'' there would be somewhere for that child of that employee to
go.
What we are trying to do--and I think it can be done--is to fashion
language that provides maximum protection for the employer but at the
same time doesn't leave that small group of employees that would be
impacted by it completely out in the cold.
Mr. WARNER. Mr. President, I thank my colleague
Let's talk about a large employer. I am simply the manager of a
section with maybe seven or eight employees, but they are good friends.
They have worked with me for a very long time. One suddenly becomes
ill. Were I to drive that person to the hospital and in any other way
participate in trying to alleviate the pain and suffering of the
moment, would that then subject my overall firm to liability by virtue
of my actions, say, as a good Samaritan?
Mr. EDWARDS. That kind of unintended consequence is exactly what we
want to avoid. The issues the Senator from Virginia is discussing in
this colloquy are the same kinds of issues that have been addressed by
employers to us and my colleagues who are working to try to fashion
language to solve the problem the Senator raises and the problem raised
in the earlier example and to make sure, for an employer that has
improperly been brought into a case--if they have been brought into a
case and they don't belong in the case, we provide a mechanism, a
procedural mechanism that they can get out of the case so they don't
get dragged through a court proceeding when they don't belong there.
Those are the kinds of issues that need to be addressed, that we are
attempting to address, and I believe we will find a solution to,
consistent with the principle the President has laid out and the
principle in which we believe.
Mr. WARNER. I thank my colleague.
Mr. EDWARDS. Mr. President, what we have done in the McCain-Edwards-
Kennedy bill is structured a system that, unlike my colleague
describes, is actually intended to avoid cases going to court. If we
didn't want to avoid cases going to court, we would not first have an
internal appeal and then have an independent external appeal. What we
have learned from experience is the majority of cases get resolved. In
Texas, California, and in Georgia, for
[[Page S6840]]
the three examples, when that system is in place, most cases get
decided by that system. I think in Georgia and California there
actually hasn't been a single lawsuit filed. That is good because the
purpose is to get treatment to patients.
But there will be rare cases where the HMO does something
inappropriate, wrongful, and, as a result, somebody gets hurt. It is
not right, under our system of justice, for a family to be responsible
for the rest of their lives to pay for that. If the HMO is responsible,
they should be held accountable, just as all the rest of us. That is
the reason we have set up this system the way it is.
What we have ultimately is real rights that are enforceable through
an internal review, then an external review, and then, if necessary, if
someone gets hurt, the case can go to court. And the cases that go to
State court, where the HMO is treated just as everybody else, are
subject to whatever State laws and caps apply to those kinds of cases.
So there are, in fact, limitations. The rhetoric that there are no
limitations is, in fact, not true.
The majority of States in this country have limitations on
recoveries. And as the judicial conference suggested, as the American
Bar Association suggested, as the State attorneys general suggested, we
have sent those cases to State court, to a place where there are
limitations on recovery but where we treat the HMOs not as privileged
citizens anymore but just as all the rest of us. To Senator McCain and
me, as we worked on this, it seemed the fair, right, and just thing to
do--that HMOs get treated the same as everybody else. If they are going
to make medical decisions, they ought to be treated as the doctors whom
they are overruling. That is exactly what the structure of this bill
is.
My colleague said something that was incorrect a few minutes ago. He
said that all you had to do to avoid the appeals process and go
straight to court was to allege that you had irreparable harm. That is
not the case. That word does not appear in our legislation. But if, in
fact, someone has died as a result of what an HMO has done to them, we
thought it was a little unreasonable to make the family of someone who
has already died go through an appeal before they could go to court.
There is not much reason for them to be exhausting administrative
remedies. We think we have a commonsense approach, one that works.
The model of California, Georgia, and Texas, and other States shows
that these laws work. They give patients rights. They don't result in a
lot of litigation. In fact, in those three States, in spite of the
rhetorical arguments being made that people will lose their health
insurance, in those three States, while those laws have been in place
with real patient protection, the number of uninsured has gone down,
not up. So at least the evidence, according to the three models we have
used, is that people think this system works. Lawsuits are not created
by it. In fact, they are avoided.
Third, the number of uninsured, at least in those three
jurisdictions, has not gone up. In fact, it has gone down.
I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. GRAMM. Mr. President, I have to say that when I listen to the
Senator from North Carolina, I almost always agree with what he says,
but when I read his bill, A, I never find it does what he says, and, B,
I never agree with it.
First of all, when the Senator chastised some for saying his bill
simply required that there be an allegation in order to escape the
external review process, that was not a figment of the imagination of
critics or paid lobbyists or special interest groups, as if special
interest groups and the trial lawyers don't also support the Senator's
bill, as if only special interests oppose it and none supports it. But
no one made that up. That is a word on page 149 of the previous version
of their bill.
In fact, I raised this very issue over and over again, and the
Senator and his cosponsors changed their bill to drop the word. This
was not a word made up by anybody. This was a word that appeared in the
original bill.
Now as for treating HMOs like everybody else, I find it a strange
assertion that they are treated like doctors and hospitals. Let me
explain why. First of all, I refer to the bill that is before us, the
McCain-Edwards-Kennedy bill, and specifically to the section related to
suing employers: ``Cause of action against employers.''
I begin with the assertion that this bill treats doctors and
hospitals exactly the way it does HMOs.
In fact, the Senator says, by putting these cases back in State
court, they are treated the same. Surely, the Senator must be aware
that under State law, for example, in Texas and in California there are
limits on liability for doctors and for hospitals, but there are no
limited liabilities for health plans or employers under State law
either in Texas or in California.
So to assert that by putting these cases that arise under Federal
law--ERISA is a Federal law--by putting them back into the States they
are being treated exactly the same as doctors and hospitals is
factually inaccurate, because State laws often do impose liability
limits on doctors and hospitals, but almost never do they impose
liability limits on employers, or insurance companies, or HMOs.
Finally, so I can get on to my point, let me say that when the
Senator says his bill treats doctors and hospitals exactly the same as
it treats HMOs, I find that an interesting assertion. I turn to page
148 of his bill and I see an exclusion. In fact, on line 12, 148, it
says: ``Exclusion of Physicians and Other Health Care Professionals.''
This is in the section on liability for employers. I will go into that
in some detail.
I want to make this point. At the end of this section on liability
for employers, it has two specific carve-outs where entities are
treated very differently from employers. The first entity on line 12 is
physicians: ``No treating physician or other treating health care
professional of the participant or beneficiary, and no person acting
under the direction of such a physician or health care professional,
shall be liable under paragraph (1),'' which is the paragraph related
to employer liability.
And then on page 149, there is an exclusion for hospitals. It says:
``No treating hospital of the participant or beneficiary shall be
liable under paragraph (1).''
So on page 148 it exempts the treating physician. On page 149, it
exempts the hospital from the same liability section for the employer.
But then, to just be absolutely certain that no one is confused, let's
come down to the bottom of page 149 and see if employers are treated
the same and HMOs are treated the same as doctors and hospitals. It
says: ``Nothing in paragraph (6),'' which is the exclusion for
physicians, ``or (7),'' which is the exclusion for hospitals, ``shall
be construed to limit the liability . . . of the plan, the plan
sponsor, or any health insurance issuer,'' and the plan sponsor, of
course, is the employer.
So to say that this bill treats doctors and hospitals the same way it
does insurance companies, HMOs, and employers, sounds very good and
reassuring. The problem is that it is not true.
Now let me begin and make the point I want to make. First of all, I
send three letters to the desk and ask they be printed in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
National Federation
of Independent Business,
Washington, DC, June 22, 2001.
Hon. Phil Gramm,
U.S. Senate,
Washington, DC.
Dear Senator Gramm: On behalf of the 600,000 small-business
owners who are members of the National Federation of
Independent Business (NFIB), I am writing to express our
strong support for your amendment to provide an employer
liability exemption modeled after the Texas managed care
legislation. As you are well aware, groups on both sides of
the issue agree that under Texas law, employers are
explicitly exempt from liability. We will work diligently to
ensure that members on both sides of the aisle support your
amendment--especially those who specifically stated that they
do not want employers to be held liable for voluntarily
offering health care to their employees.
Small-business owners are already being forced to drop
health-care as a result of the high cost of premiums; of the
43 million uninsured Americans, 26 million (61%) are small
business owners and their employees. The most recent Kennedy/
McCain/Edwards proposal actually increases the likelihood
that more small employers and their families will join the
ranks of the uninsured. For
[[Page S6841]]
the first time, it would authorize several new bases for
lawsuits that could be initiated under federal law for
unlimited damages. Employers could be sued in both state and
federal courts. Their proposal does not preclude any employer
from being named as a defendant in the growing number of
cases that are now being filed as class action lawsuits.
If Congress enacts any legislation that exposes employers
to unfair lawsuits, many small-business owners would stop
offering health insurance altogether for fear that one
lawsuit could wipe out their business. Even if employers are
shielded from lawsuits, imposing liability on health plans
would lead to higher premiums, which would then be passed on
to employers and their families. Small-business owners and
their employees simply cannot afford to supplement the income
of wealthy trial attorneys. Fifty-seven percent of small
businesses said in a recent poll that they would drop
coverage rather than risk a suit that will undoubtedly
threaten the livelihood of their business. It's easy to see
why, given the fact that the average cost for a business to
defend itself from a lawsuit is $100,000.
Again, I commend you for your continued support on behalf
of small-business owners and their employees. We look forward
to working with you to ensure that employers are not
penalized for voluntarily offering health-care benefits to
their employees.
Sincerely,
Dan Danner,
Senior Vice President.
____
U.S. Chamber of Commerce,
Congressional & Public Affairs,
Washington, DC, June 22, 2001.
To the Members of the U.S. Senate:
As the world's largest business federation representing
more than three million employers and organizations of every
size, sector and region, the U.S. Chamber of Commerce is
greatly concerned about the liability provisions of S. 1052,
the Kennedy-McCain ``Patient Protection Act of 2001'', that
expose employers to lawsuits and unlimited damage awards.
The U.S. Chamber of Commerce strongly supports the
amendment offered by Senators Phil Gramm and Kay Bailey
Hutchison to S. 1052 that would exclude employers from
lawsuits for the actions of the health plans they sponsor. It
should be noted, however, that this amendment, on its own,
does not address other fundamental flaws in the underlying
legislation, nor will it protect employers from the huge
liability costs imposed on health plans by this proposal.
Employers voluntarily provide health coverage to 172
million Americans, at an average cost of $6,351 per working
family. While this amendment exempts employers from being
party to a lawsuit, the cost of open-ended liability on
health plans will ultimately be borne by businesses and
working families. Furthermore, self-insured health plans
directly pay the cost of damages and litigation out of their
bottom line, even if they use a third-party administrator to
make claims decisions.
Given our sluggish economy, employers will not be able to
bear the passed-on costs of litigation and unlimited damage
awards. Much of those costs will also be borne by employees,
who, studies show, are increasingly turning down their
employers' offer of coverage because they cannot afford the
higher monthly premiums and out-of-pocket deductibles,
coinsurance and copayments. Our health care system does not
need any more litigation. In addition to supporting the
Gramm-Hutchison amendment, we urge you to remedy the onerous
liability provisions of S. 1052 so that employers can fully
benefit from the protection offered them by the Gramm-
Hutchison amendment.
Because of the importance of this issue to working
families, the small business community and the American
economy, we urge you to support the Gramm-Hutchison amendment
to S. 1052. The Chamber will consider using votes on or in
relation to Gramm-Hutchison for inclusion in our annual ``How
They Voted'' ratings.
Sincerely,
R. Bruce Josten.
____
American Benefits Council,
Washington, DC, June 22, 2001.
Hon. Phil Gramm,
U.S. Senate,
Washington, DC.
Dear Senator Gramm: The Senate will soon vote on your
amendment to limit the liability of employers under the
Kennedy-McCain version of the Patients' Bill of Rights.
We strongly share your view that the Kennedy-McCain bill is
fundamentally flawed and should not be enacted. It is certain
to drive up health costs well beyond the double-digit
increases that employers are already facing, increase the
numbers of uninsured Americans and place all employer-
sponsored group health plans under the constant threat of
unlimited liability and inconsistent decisions made by
separate state courts.
The Gramm amendment responds directly to one of the primary
concerns raised by both large and small employers throughout
the long debate over this legislation. there can be no doubt
that many employers who voluntarily offer this highly
valuable benefits to employees will be unwilling or unable to
do so in the future if the Kennedy-McCain bill is enacted.
There is no subtle way to express how profound and
destructive the threat of constant litigation and unlimited
damages would be to our nation's employer-sponsored health
benefits. systems.
Support for the Gramm amendment would be a vote in favor of
preserving health benefits sponsored today by employers and a
vote in favor of the millions of Americans who rely on health
benefits through their employer today. However, it should
also be clear that even if an amendment is approved to shield
employers from direct liability, our position on the bill
itself remains firm and unchanged. The Kennedy-McCain bill is
an extreme measure that should not be enacted and the bill
would still impose unacceptably high burdens on the health
plans and others involved in administering employer-sponsored
health benefits for which employers themselves would
ultimately shoulder the higher costs.
We commend you and your supporters for offering this
amendment to protect employers from the excessive liability
that would result from the Kennedy-McCain bill. We urge the
Senate to move next to comprehensively cure the problem that
this bill poses by rejecting the Kennedy-McCain proposal and
enacting a sound Patients' Bill of Rights that meets the
President's principles and can be signed into law.
Sincerely,
James A. Klein,
President.
Mr. GRAMM. The first letter is from the National Federation of
Independent Business on behalf of 600,000 small businessowners in
America. They have endorsed the amendment I have offered that will be
voted on tomorrow, which exempts employers from being sued under this
bill.
The second letter is from the Chamber of Commerce of the United
States, the world's largest business federation, representing over 3
million employers, making this vote a key vote for the Chamber of
Commerce.
Finally, the third letter is from the American Benefits Council,
which is in support of this amendment.
Let me try to explain briefly what this is all about. These are
complicated issues and they are very easy issues to get confused. Let
me start with the Federal bill, since there has been so much talk about
it. Let me be sure that everybody knows exactly what we are talking
about. This is S. 1052, which is the pending bill that was originally
authored by Senator McCain, for himself, Senator Edwards, Senator
Kennedy, and others.
I will start on page 144 of the bill. A lot has been said about suing
employers. Almost everything that has been said has been that you can't
sue employers. I want to just go through the bill very briefly, lest
there be any doubt about the fact of whether or not you can sue
employers, and try to explain the concern that I have that the National
Federation of Independent Business has, and that the U.S. Chamber of
Commerce has about this bill, and the fact that it would expose
employers to liability.
Let me remind my colleagues that employers are not required by law to
provide health insurance to their employees. There is no Federal or
State statute anywhere that requires that employer benefits be
provided. Employers provide benefits because they choose to, because
they care about their employees, or if they believe that in order to be
competitive in getting good employees and holding them they have to
provide benefits, they decide to do it on a voluntary basis. So the
cause of not just concern, but alarm, in the business community is that
under this bill it will be possible to sue not the insurance company,
not the HMO, not the people who are practicing, such as doctors and
hospitals, but you will be able to sue the employers.
Let me start with the language of the bill. This bill has in this
section, as it does in many other sections, language that is very
confusing and misleading. I want to give a simple example. Look on page
144, on line 5, it says: ``Exclusion of Employers and Other Plan
Sponsors,'' which implies that they are excluded, that you can't sue
employers. And then in section (A), line 7, it says: ``Causes of Action
Against Employers and Plan Sponsors Precluded.'' Read that sentence.
You say you can't have a cause of action against employers and plan
sponsors; they are specifically precluded. That is exactly what the
headline says.
And then it says: ``Subject to subparagraph (B),'' and that is where
you become concerned because up here it says you can't sue them. The
next line is ``Subject to subparagraph (B)''--I will come back to
that--``paragraph (1)(A) does not authorize a cause of action against
an employer''--just as
[[Page S6842]]
clear as the rising Sun. You can't sue employers. But when you get down
to subparagraph (B), it says: ``Certain Causes of Action Permitted,''
and then it says: ``Notwithstanding subparagraph (A),'' which is what I
just read, ``a cause of action may arise against an employer or other
plan sponsor.''
In other words, paragraph (A) says you can't sue them and paragraph
(B) says you can sue them. And then you have seven pages of ifs, ands,
and buts about whether you can or cannot sue employers, and under what
circumstances you can sue them.
And then, obviously, it gets pretty complicated. The question comes
down to, what would a judge say? What would a jury say? What would some
very smart plaintiff's attorney be able to do with this language?
Then the problem gets even greater because you get down to the use of
terms that don't jump out at you as triggering other things. But when
you understand how they fit into Federal law, they say you can sue
employers. I will give you an example. On line 18 of page 145, it says
you can't sue the employer except when the employer directly
participates--and let me read the whole paragraph:
Direct Participation in Decisions.--For purposes of
subparagraph (B), the term ``direct participation'' means, in
connection with a decision described in clause (i) of
paragraph (1)(A) or a failure described in clause (ii) of
such paragraph. The actual making of such decision or the
actual exercise of control . . .
It does not jump out at you that ``exercise of control'' means
anything. It does not unless you know that under ERISA, which governs
all employer benefits under Federal law, the employer is always deemed
to exercise control over employee benefits.
There are 7\1/2\ pages of ifs, ands, and buts, but there is a lot of
language that when it is brought into the context of existing Federal
law it creates the strong potential that employers could be sued and
could be sued for nothing other than simply having tried to join with
their employees in buying health insurance and conducting activity that
had to do with operating their business, appointing employees to
interface with their health plan, their insurance company, their HMO.
Then, as if anybody would doubt the intention of this bill, it has
this extraordinary section on page 148 and 149, having created this
liability for employers, and then in 7\1/2\ pages talking about when
you can sue them and when you cannot sue them, it then comes down and
excludes physicians, excludes hospitals, and then it says:
But nothing in excluding physicians or excluding hospitals
can be construed as excluding employers.
If our colleagues on the other side of the aisle wonder why it is
that employers are alarmed, all they have to do is to look at the
language of their bill in the context of ERISA to understand that we
have a very real potential for employers to be sued.
The Texas Legislature, which has been held out to be a standard for
patients' rights--in fact, if I am not wrong, Senator Edwards said on
ABC ``This Week'':
The President, during his campaign, looked the American
people in the eye in the third debate and said: ``I will
fight for Patients' Bill of Rights,'' referencing the Texas
law. Our bill is almost identical.
Identical to what? The Texas law. Let me make it clear it is not
identical. Under the bill before us, it clearly says employers can be
sued. It has 7\1/2\ pages of circumstances under which they can be
sued. It uses language that ties in to ERISA that suggests they might
be sued, and then it excludes doctors and hospitals but specifically
does not exclude employers from being sued.
That is what the bill before us does. What does the Texas law do? The
Texas Legislature, when it debated and passed the Patients' Bill of
Rights, did not believe that all employers were good people. It did not
believe there would never be an incident where employers would do the
wrong thing. It did not believe that. They debated this extensively,
but they did believe they had put together a system of checks and
balances.
In fact, this bill, the Republican alternative, the Breaux-Frist
bill, every HMO bill, every Patients' Bill of Rights bill that has been
introduced, is really modeled after State plans. One of the most
prominent of those plans is the Texas plan.
In Texas they concluded there was no way they could write it that
would not guarantee that employers would not be subject to being sued
other than to simply exempt employers from being sued.
What they said was, in very simple terms:
This chapter--
Which relates to liability in their bill--
does not create any liability on the part of an employer.
There are no 7\1/2\ pages of ifs, ands, or buts after this clause.
There is no paragraph below it that says notwithstanding this provision
they can be sued. This is the language of the Texas law. It does not
create any liability on the part of an employer.
Let me review some of the points that have been made where people say
you need to be able to sue the employer. Let me remind my colleagues
that the Texas Legislature did not believe that for a minute that there
would not be some employers who would be bad actors, but they concluded
that the benefits of letting people sue the employer were much smaller
than the potential cost because of the fear that employers might drop
health insurance. In fact, I think the success of the Texas law bears
out their belief that, under the Texas law, they would be better off
not to allow the suits to be filed against the employer.
Some people have said: What if somebody showed up at the emergency
room and the employer called up and said don't let them in? Under the
bill before us and every bill that has been introduced, we have a
prudent layperson standard. The emergency room is going to get paid if
the person, as a prudent layperson, believes they were in danger of
being harmed or dying.
What would the attending physician in an emergency room in Omaha, NE,
do if some employer called up and said, my employee, Joe Brown, is
coming in there, he thinks he is sick, I don't want him treated? The
physician would say: Thank you, and hang up because he has no control
over who is admitted to the emergency room and the HMO is required to
pay.
What about the case where the employer actually tries to intervene in
the decision being made by the HMO? It has been suggested that perhaps
you could have it so the employer is not the final decisionmaker and
would be exempt. I remind my colleagues, who is the final decisionmaker
under S. 1052? Who is the final decisionmaker under Breaux-Frist? Who
is the final decisionmaker under the Nickles bill? Who is the final
decisionmaker under the original Kennedy bill? The final decisionmaker
is an independent review panel made up of health care professionals who
are independent of the health plan. How is the employer supposed to
affect them? The employer can have no effect over them. By definition,
under every one of these bills, the employer is not, cannot be the
final decisionmaker.
I am not saying, and the Texas Legislature did not say, there were no
bad employers, but what they said is what little benefit you might get
by discouraging an employer from trying to interfere in a health care
plan for which they are at least partially paying; whatever benefits
you might get from that, you already have protections with internal and
external review, but the cost of making the employer liable is so high
that it is not worth it.
Let me conclude because I see my dear colleague from West Virginia is
here. I know a lot of other people want to speak. I want to make this
point. It is not hard for me to envision--I hope it is not hard for my
colleagues to envision--that there are a lot of little businesses all
over America that scrimp and sacrifice to cover their employees with
health insurance.
I often talk about a printer from Mexia, Dicky Flatt, a friend of
mine, an old supporter of mine from a little town in Mexia, TX. He is
an old-fashioned printer. He never quite gets that blue ink off the end
of his fingers.
He has about 10 employees, including his wife, including his baby
son, and he probably has 8 or so other employees at any one time.
They work hard to try to provide health insurance. But there is no
way, shape, form, or fashion, Dicky Flatt is
[[Page S6843]]
going to hire a lawyer to go through this bill. Once he hears from NFIB
that he might be sued, he is going to be forced to call his 10
employees together and say: Look, I love you guys. You helped me build
this business. But my father and my mother worked a lifetime to build
this business. I have worked in it. My wife has worked in it. My
brother worked in it. His brother's wife worked in it. My son works in
it. And I am not going to put it all at risk in some courtroom because
I might be sued because I helped you buy health insurance.
Our colleagues assure us, we are not after Dicky Flatt. But the
problem is, they have 7\1/2\ pages of language under which Dicky Flatt
could be sued. A lot of this language is pretty confusing. I am not a
plaintiff's attorney, but it is pretty confusing to me and I have to
figure it is very confusing to Dicky Flatt, a printer in Mexia.
Everybody talks about how good the Texas law is and how similar this
bill is. I thought with all of the imperfections, I would offer an
amendment that does exactly what the Texas law did. One of our
colleagues pointed out that under Texas law health insurance coverage
has gone up, not down. In Texas they did not believe that all 1 million
employers were good, well intending people. They decided, whatever you
get by allowing a person to try to sue the few who are bad, when people
already have checks and balances against bad employers with internal
and external review--an external review where the employer could have
no impact, that whatever the benefits are of suing the employer, the
cost in terms of inducing good employers to drop health coverage was
more.
I am sure everybody understands unintended consequences. I don't
believe for a minute the authors of this bill are trying to sue Dicky
Flatt. I don't believe it. I don't believe they have evil intent. I
have never thought that, never said it, and I don't believe it.
The point is, could the law produce the unintended consequence? It is
complicated enough, it is contradictory enough, that I believe it might
force good people such as Dicky Flatt, who might call the emergency
room if one of his employees were taken to the emergency room, but it
would be to say: He is coming; do everything you can to help him. Would
that be intervening? If he called up and said: ``I want to tell you
that Sarah Brown got her finger caught in this machine and it pulled
her hand in, and, my God, she is on the way there and she is bleeding
something awful. Get ready. And I want you to do everything you can.
Don't worry about cost, I will do whatever I can to help,'' is that
intervening? I don't know. And he won't know. Therefore, he might
cancel his health insurance.
I believe this is the safe way to do it. I am not saying I will not
look at alternatives or we might not be able to work something out, but
I am asking my colleagues, don't believe that perfection has been
achieved, that there is no way the current bill can be improved. If we
could change 5 or 6 things in this bill, we would get 80 Members, maybe
90 Members to vote for it. This is something that needs to be changed.
This is something that needs to be fixed.
I know there are a lot of clever people who think we can still do it
and still sue and protect Dicky Flatt. I am not sure. All I know is the
Texas Legislature, after debating this, decided they were not sure and
the safest thing to do was to not allow him to be sued.
I yield the floor.
The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator from West
Virginia.
Mr. BYRD. Mr. President, has the Pastore rule run its course for the
day?
The PRESIDING OFFICER. No, it has not. It will expire at 5:04.
Mr. BYRD. I ask unanimous consent to speak out of order,
notwithstanding the Pastore rule.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. Mr. President, I understand the Senator from Michigan
wishes to speak. If I may be recognized, I would like to speak for not
to exceed 20 minutes, but I yield to the Senator from Michigan for not
to exceed 5 minutes, and not have that 5 minutes charged against my
time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. STABENOW. Mr. President, I thank my friend and colleague for
yielding to me for a moment to bring this discussion back to what this
is really all about.
First, I say to my friend from Texas, I am happy to share with his
constituent of whom he spoke, on page 146 of the legislation,
specifically what is meant by employers being exempted from lawsuit. It
is very specific. I think we could satisfy his concerns if he were to
read the bill and have an opportunity to discuss it with us. I welcome
an opportunity to do that.
I will take a moment and share what happened in Michigan a few hours
ago. I went back to the great State of Michigan to be with a large
number of constituents who were very concerned about this legislation,
people who have been involved in the health care system, doctors and
nurses, and family members who have had situations occur in their own
family with themselves or their children or their parents that have
caused them to support this legislation, the underlying bill that is
before the Senate. They believe this is critically needed because of
the need to guarantee the health insurance is paying for results in
health care for their families.
I will comment as I did on Friday about a situation about which my
colleagues on the other side of the aisle talked, small business
owners. There is a small business owner with whom I have worked very
closely, a man named Sam Yamin, who, in fact, had a situation where he
had to go to an emergency room himself.
He owned a tree trimming business and had a severe accident with a
chain saw and was rushed to an emergency room. The physicians were
ready to operate, to save his leg, to save the nerves in his leg. They
called the HMO and the HMO said, we are sorry; you are at the wrong
emergency room. They packed him up, him and his wife, and moved him
across town. He spent 9 hours on a gurney in the other emergency room
and did not receive treatment until he literally pulled a telephone out
of the wall because he was in such great pain. He ended up getting the
most limited treatment. They simply sewed up his leg.
Why do I mention that? I mention that because Sam Yamin lost his
business. He is a business owner who lost his business. He is a
business owner who is now not only permanently disabled but, I found
out today, is terminally ill. Sam Yamin did not deserve that. He paid
for insurance. He was a business owner who had insurance and assumed in
an emergency he could go to the nearest emergency room.
Now what happens? He and his wife Susan are flooded with bills. Does
he have any recourse to go back to the HMO to hold them accountable for
what happened for him and his family? No, he does not.
That is not right. That is what this bill is about. We want better
medical decisions. Sam Yamin does not want the right to sue just to
sue. He wanted emergency health care. He wanted an operation on his
leg. He wanted to be able to go back to work in his business. That is
what he wanted. I truly believe that unless we hold HMOs and insurance
companies accountable for the decisions they are making, we will not
get that kind of guarantee of health care. We want better medical
decisions. That is what we want. We know the States that have enacted
these kinds of protections don't have the lawsuits being talked about.
They have better medical decisions. That is what we are looking for. We
want to make sure decisionmakers know they better pay attention; they
better get it right; they better give people the health care they are
paying for; otherwise, they will be held accountable.
That is what this is about. That is why it is so important and that
is why I am going to come to the floor every day and speak on behalf of
Susan and Sam Yamin and all the other families in Michigan who are
counting on us to get this right.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the Senator from
West Virginia is recognized.
Mr. BYRD. Mr. President, I thank the Presiding Officer. I also thank
the majority whip for his courtesy.
Mr. President, I am speaking on a subject that is not germane to the
debate this afternoon.
[[Page S6844]]
The PRESIDING OFFICER. The Senator from West Virginia.
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