[Congressional Record Volume 149, Number 25 (Tuesday, February 11, 2003)]
[Senate]
[Pages S2208-S2211]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. LEAHY (for himself, Mr. Kennedy, Mr. Durbin, Mr. Edwards, 
        Mr. Rockefeller, Mr. Reid, Mrs. Boxer, Mr. Feingold, and Mr. 
        Corzine):
  S. 352. A bill to ensure that commercial insurers cannot engage in 
price fixing, bid rigging, or market allocations to the detriment of 
competition and consumers; to the Committee on the Judiciary.
  Mr. LEAHY. Mr. President, today I am pleased to introduce the 
``Medical Malpractice Insurance Antitrust Act of 2003'' along with 
Senators Kennedy, Durbin, Edwards, Rockefeller, Reid, Boxer, Feingold, 
and Corzine. In the deafening debate about medical malpractice, I 
believe this legislation is a clear and calm statement about fixing one 
significant part of the system that is broken--skyrocketing insurance 
premiums for medical malpractice.
  Our health care system is in crisis. We have heard that statement so 
often that it has begun to lose the force of its truth, but that truth 
is one we must confront and the crisis is one we must abate.
  Unfortunately, dramatically rising medical malpractice insurance 
rates are forcing some doctors to abandon their practices or to cross 
State lines to find more affordable situations. Patients who need care 
in high-risk specialties--like obstetrics--and patients in areas 
already under-served by health care providers--like many rural 
communities--are too often left without adequate care.
  We are the richest and most powerful Nation on earth. We should be 
able to ensure access to quality health care to all our citizens and to 
assure the medical profession that its members will not be driven from 
their calling by the manipulations of the malpractice insurance 
industry.
  The debate about the causes of this latest insurance crisis and the 
possible cures grows shrill. I hope today's hearing will be a calmer 
and more constructive discussion. My principal concerns are 
straightforward: That we ensure that our Nation's physicians are able 
to provide the high quality of medical care that our citizens deserve 
and for which the United States is world-renowned, and that in those 
instances where a doctor does harm a patient, that patient should be 
able to seek appropriate redress through our court system.
  To be sure, different States have different experiences with medical 
malpractice insurance, and insurance remains a largely State-regulated 
industry. Each State should endeavor to develop its own solution to 
rising medical malpractice insurance rates because each State has its 
own unique problems. Some States--such as my own, Vermont--while 
experiencing problems, do not face as great a crisis as others. 
Vermont's legislature is at work to find the right answers for our 
State, and the same process is underway now in other States. To 
contrast, in States such as West Virginia, Pennsylvania, Florida, and 
New Jersey, doctors are walking out of work in protest over the 
exorbitant rates being extracted from them by their insurance carriers.
  Thoughtful solutions to the situation will require creative thinking, 
a genuine effort to rectify the problem, and bipartisan consensus to 
achieve real reform. Unfortunately, these are not the characteristics 
of the Administration's proposal. Ignoring the central truth of this 
crisis--that it is a problem in the insurance industry, not the tort 
system--the Administration has proposed a plan that would cap non-
economic damages at $250,000 in medical malpractice cases. The notion 
that such a one-size-fits-all scheme is the answer runs counter to the 
factual experience of the States.
  Most importantly, the President's proposal does nothing to protect 
true victims of medical malpractice. A cap of $250,000 would 
arbitrarily limit compensation that the most seriously injured patients 
are able to receive. The medical malpractice reform debate too often 
ignores the men, women and children whose lives have been 
dramatically--and often permanently--altered by medical errors.
  The President's proposal would prevent such individuals--even if they 
have successfully made their case in a court of law--from receiving 
adequate compensation. We are fortunate in this Nation to have many 
highly qualified medical professional, and this is especially true in 
my own home State of Vermont. Unfortunately, good doctors sometimes 
make errors. It is also unfortunate that some not-so-good doctors 
manage to make their way into the health care system as well. While we 
must do all that we can to support the men and women who commit their 
professional lives to caring for others, we must also ensure that 
patients have access to adequate remedies should they receive 
inadequate care.
  High malpractice insurance premiums are not the result of malpractice 
lawsuit verdicts. They are the result of investment decisions by the 
insurance companies and of business models geared toward ever-
increasing profits. But an insurer that has made a bad investment, or 
that has experienced the same disappointments from Wall Street that so 
many Americans have, should not be able to recoup its losses from the 
doctors it insures. The insurance company should have to bear the 
burdens of its own business model, just as the other businesses in the 
economy do.
  But another fact of the insurance industry's business model requires 
a legislative correction--its blanket exemption from federal antitrust 
laws. Insurers have for years--too many years--enjoyed a benefit that 
is novel in our marketplace. The McCarran-Ferguson Act permits 
insurance companies to operate without being subject to most of the 
Federal antitrust laws, and our Nation's physicians and their patients 
have been the worse off for it. Using their exemption, insurers can 
collude to set rates, resulting in higher premiums than true 
competition would achieve--and because of this exemption, enforcement 
officials cannot investigate any such collusion. If Congress is serious 
about controlling rising premiums, we must objectively limit this broad 
exemption in the McCarran-Ferguson Act.
  That is why today I introduce the ``Medical Malpractice Insurance 
Antitrust Act of 2003.'' I want to thank Senators Kennedy, Durbin, 
Edwards, Rockfeller, Reid, Boxer, Feingold, and Corzine for 
cosponsoring this essential legislation. Our bill modified

[[Page S2211]]

the McCarran-Ferguson Act with respect to medical malpractice 
insurance, and only for the most pernicious antitrust offenses: price 
fixing, bid rigging, and market allocations. Only those anticompetitive 
practices that most certainly will affect premiums are addressed. I am 
hard pressed to imagine that anyone could object to a prohibition on 
insurance carriers' fixing prices or dividing territories. After all, 
the rest of our Nation's industries manage either to abide by these 
laws or pay the consequences.
  Many State insurance commissioners police the industry well within 
the power they are accorded in their own laws, and some States have 
antitrust laws of their own that could cover some anticompetitive 
activities in the insurance industry. Our legislation is a scalpel, not 
a saw. It would not affect regulation of insurance by State insurance 
commissioners and other State regulators. But there is no reason to 
continue a system in which the Federal enforcers are precluded from 
prosecuting the most harmful antitrust violations just because they are 
committed by insurance companies.
  Our legislation is a carefully tailored solution to one critical 
aspect of the problem of excessive medical malpractice insurance rates. 
I hope that quick action by the Judiciary Committee and then by the 
full Senate, will ensure that this important step on the road to 
genuine reform is taken before too much more damage is done to the 
physicians of this country and to the patients they care for.
  Only professional baseball has enjoyed an antitrust exemption 
comparable to that created for the insurance industry by the McCarran-
Ferguson Act. Senator Hatch and I have joined forces several times in 
recent years to scale back that exemption for baseball, and in the Curt 
Flood Act of 1998 we successfully eliminated the exemption as it 
applied to employment relations. I hope we can work together again to 
create more competition in the insurance industry, just as we did with 
baseball.
  If Congress is serious about controlling rising medical malpractice 
insurance premiums, then we must limit the broad exemption to Federal 
antitrust law and promote real competition in the insurance industry.
                                 ______