[Congressional Record Volume 149, Number 40 (Wednesday, March 12, 2003)]
[House]
[Pages H1790-H1796]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        MEDICAL LIABILITY REFORM

  The SPEAKER pro tempore (Mrs. Musgrave). Under the Speaker's 
announced policy of January 7, 2003, the gentleman from Georgia (Mr. 
Gingrey) is recognized for 60 minutes as the designee of the majority 
leader.
  Mr. GINGREY. Madam Speaker, I rise tonight and will take my time to 
describe the crisis that we face in this country regarding access to 
health care; and make no mistake about it, this is truly a crisis. When 
you have doctors unable to go to emergency rooms to provide emergency 
care, particularly for patients who have sustained automobile accident 
and head injuries; when you have OB-GYN physicians, as I am, stopping 
their programs at the most experienced states of their career because 
of the fear of litigation, you have patients who are in most need of 
those skills being the least likely to get them.
  This crisis also extends to the facts that fewer and fewer of our 
best and brightest are choosing medicine as a career. The application 
rates to our medical schools are down significantly over the last 
several years. What is causing this? We hear from the other side and a 
lot of things are mentioned, insurance companies, of course, are being 
blamed for gouging physicians and for gouging the public. But I suggest 
to you, Madam Speaker, that that clearly is not the case.
  Let me just give you a few statistics and share with you what has 
happened in my State, not just my own district, the 11th, but in the 
entire State of Georgia. MAG Mutual, Medical Association of Georgia 
Mutual Insurance Company, a doctor-owned insurance provider states that 
premiums for malpractice insurance are rising at rates of 30 to 40 
percent a year. The Georgia Medical Association reports 20 percent of 
State doctors are curtailing the scope of their practices with some 11 
percent actually refusing to performing emergency surgery.
  Recently, the Georgia Board for Physicians Workforce released an 
access-

[[Page H1791]]

to-care study regarding physicians and the medical liability crisis. 
And let me share some of these statistics, and this is really 
frightening. In the State of Georgia, some 2,800 physicians are 
expected to stop providing high-risk procedures just to limit 
liability; 1,750 physicians in Georgia have stopped or are planning to 
stop providing ER coverage; 630 physicians plan to retire or in fact 
even leave the State. One in five family physicians and one in three 
OB-GYNs have reported plans to stop providing high-risk procedures 
including the high risk of delivering a baby. One-third of radiologists 
reported plans to stop providing high-risk procedures including, Madam 
Speaker, reading mammograms.
  Now, Georgia is certainly not the only State in crisis. In fact, 
there are a total of 13 States that are in crisis: Georgia, Florida, 
Mississippi, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, 
Texas, Washington, and certainly West Virginia. And there are 30 other 
States that are in a near crisis. In fact, Madam Speaker, there are 
only about seven States in this country that are not in crisis or near 
crisis.
  So the issue that we are presenting and the issue that H.R. 5 is 
trying to address is the fact that we are losing access to care and 
this is affecting every citizen in these United States, in all 50 
States.
  It is causing physicians to stop practice in many instances at the 
most critical time of their career, when they are the most experienced, 
they are the most compassionate, they have the best judgment and the 
highest level of skills. They are actually walking away. They are 
trading their white coats, literally, for fishing gear, which is a 
shame, which is a shame. And this is happening all across the country.
  When physicians stop their practices, it is not just losing one 
doctor; it is really losing a business. We are in a time of economic 
crisis in this country. We probably have 8 million people who are 
unemployed. As I point out, we are not just talking about the loss of 
one job when a physician decides to retire early or move to another 
State. We are talking about 5, 10, 15, 25 employees who have worked 
diligently in that medical practice in support of that physician. And 
you are putting every one of these people out of work, and adding to 
this crisis that we face right now of this economic downturn.
  So, Madam Speaker, it is not about the physicians and their bottom 
line or how much money they are making in practice. It is not that at 
all. What our concerns are is the fact that runaway jury awards which 
have almost created a lottery-like mentality are resulting in no 
patient access. And the stories of people going to the emergency room, 
needing to see that neurosurgeon to treat that potential closed head 
injury. We heard some testimony today in a press conference. It was 
awfully sad to see the wife whose husband is now severely brain 
damaged. She came to Washington today, all the way from California with 
her two teenage children to describe how she went to the emergency 
room, her husband was taken to the emergency room after the automobile 
accident that he was in and there was no neurosurgeon on duty. And he 
had to literally be air-lifted 60 miles away, and it was a 6-hour delay 
before he could get the care that he needed and the result was he 
sustained permanent brain injury.
  Madam Speaker, I see some of my colleagues have joined me in the 
Chamber, and I want to at this point yield to them. I know they have 
worked very diligently on this issue. They are co-sponsors of H.R. 5, 
and they have got a lot of expertise that I know they would like to 
share with the Chamber and with the Members and, of course, with the 
American public. I would first like to recognize the gentlewoman from 
West Virginia (Mrs. Capito).
  Mrs. CAPITO. Madam Speaker, I would like to thank my colleague from 
Georgia (Mr. Gingrey) for putting this together in anticipation of what 
I think will be a great day for this Chamber and a great day for 
America and that is going to be the passage of H.R. 5, the HEALTH Act.
  I am a co-sponsor of the HEALTH Act, as I was last year when it 
passed through this Chamber. I was pushing for medical liability reform 
at every level, on the Federal level most certainly, but in our own 
State of West Virginia.
  Everybody has a story to tell, and certainly in West Virginia last 
year we had quite a story to tell. I just want to talk about two 
incidents that happened in our State of West Virginia.
  I live in Charleston, West Virginia, the capital of our State. And 
the largest medical center there lost its trauma-1 status, which means 
that if I were to be in a car accident and my family were to suffer 
like the woman that we talked with earlier today whose husband was in a 
car accident, they too would have to be transported to find a 
neurosurgeon to be treated in a trauma-1 center outside of our State.

                              {time}  1930

  To me, to live in a capital city and say you cannot provide that kind 
of care in our capital city does not speak very well for our State or 
our capital city. I am happy to say that that hospital has since 
retained its Trauma 1 status through great efforts by our governor, and 
we now do have our full emergency care, but in that point in time it 
was a devastating event.
  We also had an event in September where a young boy had something 
lodged in his windpipe, went to the hospital, could not find a 
pediatric surgeon, had to be taken to Cincinnati, 4 hours away, before 
he could have that removed from his windpipe. Luckily, everything 
turned out all right, but if it had been a true emergency to the point 
where he was obstructed and could not breathe, it could have had a 
different ending.
  I likened a lot of what was happening in West Virginia to the Perfect 
Storm. Our doctors were leaving in droves, our Trauma 1 center was 
closing, our doctors in Wheeling actually took a month long leave of 
absence in January to illustrate the devastation that they have felt in 
their emergency room with the skyrocketing costs of medical malpractice 
insurance.
  According to the Chamber of Commerce, West Virginia has one of the 
largest problems. Let me just say, 65 percent of our physicians have 
said they would consider moving to another State to practice medicine; 
41 percent said retiring early; 30 percent said leaving the practice of 
medicine altogether. And what does that say? To me, that says when a 
doctor who is in the prime of their lives and practicing medicine, not 
only do we lose access to quality care, but we lose that physician's 
expertise to train doctors that are coming through in medical school 
and the doctors to come, and it is a very discouraging fact.
  Doctors are practicing defensive medicine all across this country, 
and they are ordering test after test because they are afraid of the 
consequences if they were to miss something or if they were to not 
order a test that could be in some form or fashion thought to have been 
not in the patient's best interests or in the patient's best interest 
to have. So they are ordering test after test. They are referring to 
specialist after specialist to get more judgments. They have prescribed 
more medicine.
  This is what defensive medicine is about, and every physician or most 
every physician in my State and across the Nation knows exactly what it 
is to have somebody looking over their shoulder. These professionals 
train for years and decades, many of them, to provide good, safe, 
quality health care to our citizens, to provide access to our citizens.
  I am particularly interested in rural health care because if our 
doctors leave, they are going to leave the rural areas first, and it is 
going to be a devastating situation for our country.
  So I am extremely pleased that we are going to have H.R. 5 in front 
of us tomorrow. I am going to be voting yea very proudly. I think it is 
going to help in our States for our recruitment of our young 
physicians, retention of our physicians, and provide that quality 
health care and success that is extremely important.
  I would like to tell the rest of the Nation that my State, because we 
were in the Perfect Storm last year, because we were in this 
devastating situation, our State legislature stepped up to the bat, and 
yesterday our governor signed a bill, a medical liability reform bill, 
a medical justice bill, that goes to a lot to lawsuits abuse and 
lawsuit reform and tries to get a handle on the lottery system of 
medical liability court cases. I am proud of our State. I am proud of

[[Page H1792]]

our legislature for stepping up and answering the call and answering 
the question.
  We need to pass this reform at the Federal level and vote for this 
HEALTH Act. Our court system is overwhelmed with these frivolous cases. 
Everyone in this body and everyone across America wants to see when an 
error has been made, when something unfortunate has happened, wants to 
see that person get what is rightfully due to them and to see that they 
are made whole because of an error that might have inadvertently been 
caused or intentionally been caused in a medical situation, and if we 
allow our court system to proceed the way it has with these frivolous 
suits and clogged up, the folks that are really due and that are really 
hurting are not going to have the access that they need.
  This is also an economic development issue. If our health system is 
failing, we cannot develop our communities and a State like mine, if 
our health system is not standing, all the businesses are not going to 
come and bring employees into a State or a city that does not have good 
quality health care and good quality access to health care.
  I think a lot of us across the Nation have a personal relationship 
with our physicians, and I think what happened in my State is what is 
happening across the country. With the personal relationships that we 
have with our physicians, that I might have with my OB/GYN or my mother 
might have with her physician, when those physicians leave in an 
untimely way because they are forced out of practicing medicine because 
of the high cost of medical liability, because of the fear of lawsuits, 
when those physicians leave, it breaks a serious bond in all of our 
lives. We have lost one of our friends, our advocates and somebody that 
we trust, and that is our physician.

  I want to see our physicians be able to practice the way they have 
been trained, the way that they in their hearts know that we want to be 
treated, with good quality health care, and I believe that this health 
reform bill that we are going to pass tomorrow, modeled after the 
California bill, will go a long way to seeing that happen.
  Mr. GINGREY. Mr. Speaker, I thank the gentlewoman from West Virginia 
for her comments, and I am really appreciative of her pointing out some 
things that needed to be mentioned.
  I talked about the fact that when a doctor closes his or her door 
that it affects more than one employee and it could affect five or 10 
or so, and the West Virginia crisis was as serious as any in the 
Nation, and I commend West Virginia General Assembly and the governor 
for passing this reform, the Medical Justice Act as the gentlewoman 
from West Virginia described it, and that is really what it is. It is a 
Medical Justice Act, and what is important for people in this country 
to understand is that nobody, no physician certainly, is trying to deny 
a patient the access to a redress of grievances in a situation where 
they have been injured or a family member has lost their life because 
of practice below the standard of care, either on part of the physician 
or the hospital in which that care was provided.
  I have unfortunately, over a 30-year career in OB/GYN with 5,200 
deliveries, been involved in a couple or three lawsuits where myself, 
along with six or eight or 10 other people, were named, and in at least 
one of those cases I was pulling for the plaintiff. I felt that they 
deserved just compensation and was glad when they received it.
  Nor are we trying to, in trying to address this problem with H.R. 5, 
to say and paint with a broad brush that all attorneys are guilty of 
being egregious in their behavior in regard to filing frivolous 
lawsuits and gouging the system. In fact, I think the opposite is true. 
Most attorneys are very professional. Those who are involved 
professionally in personal injury law do a good job, and they represent 
their clients well. Unfortunately, there are too many of those 
situations where the lawsuit is frivolous, and because of the 
ridiculous contingency fee structure it sort of promotes the filing of 
frivolous lawsuits and hoping for that one in a million lottery payoff, 
and that is really, it is not only putting physicians out of business. 
As the gentlewoman from West Virginia said, it is causing rural 
hospitals that provide some of the most important high risk care, a 
preponderance of Medicare and Medicaid patients, and they are closing 
the doors, and as she pointed out, in many instances that is the only 
employee base in the whole county or region of the State, and so it 
does not justify situations, but it is hospitals, too, that are dealing 
with this, and many of them, of course, are self-insured.
  I see that the author of this bill, Madam Speaker, the distinguished 
gentleman from Pennsylvania is here, and I would like to yield as much 
time as he needs to let him talk about the bill.
  Mr. GREENWOOD. Madam Speaker, I thank the gentleman for yielding and 
I thank all of my colleagues for this special order. It is very 
important and I did not hear the special order given by opponents of 
the bill earlier, but I am told that there are some corrections to the 
Record that might need to be made, and I would like to do that.
  There is no one who is debating that there is a crisis in this 
country. The worst opponents, the most fervent of the opponents of the 
bill, the trial lawyers, are not arguing we are having a crisis in the 
States, including my State of Pennsylvania and many others. That is 
accepted. The question is what is the solution.
  The key point that the opponents seem to make is that the insurance 
companies, the problem here is the insurance companies. It is not the 
legal system. It is not what goes on in the courtroom. It is that the 
insurance companies are overcharging for these liability premiums. If I 
thought that were the case and that the evidence substantiated that and 
if we had testimony to that effect, then I am not the least bit shy 
about going after the insurance companies. I know my colleagues are 
not. We would do what is necessary there.
  The fact of the matter is that the National Association of Insurance 
Commissioners asked point blank, testified, not once but repeatedly, to 
the fact that there is no evidence that the insurance companies are 
colluding; that they are price gouging; that they are doing a market 
sharing plot; that they are scheming in some ways to overcharge for 
these premiums.

  We do not have to take anyone's word for it. What we have to simply 
take a look at is the fact that 60 percent of the physicians in this 
country acquire their medical liability insurance from physician-owned 
companies. Think about that. These physician-owned companies are 
basically mutual companies. They are set up by doctors for the sole 
purpose of trying to enable doctors to get affordable medical 
liability. So they do everything in their power to get that premium as 
low as possible. They are certainly not colluding. They are certainly 
not price gouging. They are certainly not ripping off the doctors 
because they work for the doctors. They are owned by the doctors. They 
are the doctors.
  The fact is that they have not been able to provide premiums at lower 
costs than the commercial insurers. So what does that tell us? That 
tells us that if, in fact, the commercial insurers were guilty of price 
gouging, were guilty of colluding, were guilty of overcharging, that 
their prices would be here and the physician-owned companies would be 
here. That is not the case.
  What is the case is that they are at right about the same place and 
that leads us I think to the inescapable conclusion that the problem is 
with the judicial system and not with the insurance system.
  Another argument that we have heard throughout this debate and we 
have heard at the hearings, we will hear certainly tomorrow a lot, is 
that $250,000 is just too low, how can we have such a low cap when 
noneconomic damages should be higher than that. So why did we pick 
$250,000? Picked it, first off, because that is what California did in 
1975 and it has worked. While the rest of the country has seen medical 
liability rates go up by 505 percent since then, in California only 167 
percent. So it has worked.
  Secondly, the California Congressional delegation did not want us to 
set a cap that is higher than theirs because they are happy with 
theirs. They do not want that to change. So what we said, being 
respectful of other States and being respectful of the concept of 
States rights, we said, well, we will have a flexible cap, which means 
we set

[[Page H1793]]

it at 250 as a floor and then any State that wants to can raise that 
cap to $500,000, to $750,000, to $1 million. They can put inflaters in 
there, they can revisit it from time to time, and I think that is fair, 
and that is reasonable, and that is contained in this legislation. So 
the fixation on the $250,000 I think is a bit of a red herring.
  I have heard opponents of this bill say this bill does not do 
anything to stop frivolous suits. That is the problem. The problem is 
frivolous suits. What this bill does is stop frivolous suits. What it 
does is this. When we have no cap on the noneconomic damages, and we 
said we do not put any cap on economic damages, we think if we have the 
case of a child that has been terribly injured and is going to require 
round-the-clock care for the rest of its life, we are talking about 
judgments on the order of magnitude of $50 million, $75 million for the 
health care and for the lost wages, a lifetime of lost wages, and we 
are for that. This bill allows that.
  When we have no cap on the noneconomic damages, the sky is the limit. 
So what happens when the sky is the limit? A frivolous suit is filed, a 
relatively weak suit is filed without much merit. The insurance company 
that is insuring the doctor or the hospital looks at the facts and 
says, well, this plaintiff is particularly pitiful, this plaintiff is 
an especially pathetic plaintiff, we have got a very strong attorney 
here on this case. We better not fight this because we go out into the 
courtroom and fight this and try to defend against this case, the jury 
could decide to give one of these jackpot awards and it is not worth 
the risk.
  So, given the fact that we have got this huge risk, what we are going 
to do is we will just settle, and every time they settle one of these 
cases, that gets built into the premium, and it increases the incentive 
for more cases to be filed.
  Finally, what we have heard over and over again and what we are 
certainly going to hear tomorrow is what about these tragic cases, what 
about the poor 17-year-old girl in North Carolina, the Mexican girl who 
died from the organ transplant error. In North Carolina, where that 
occurred, they have a law that allows for wrongful death suits. They 
will go into the court under that suit, as they would even if our bill 
becomes law, and they will be able to sue for and they can do it either 
pursuant to other State laws or pursuant to our law, get a claim and 
receive awards equal to a lifetime of lost wages.

                              {time}  1945

  The California Plaintiff's Bar has been extremely successful in 
figuring out how to raise those economic damages, as they should be. If 
somebody is paralyzed, they go in and they get not only all of their 
lost wages, all of their medical costs covered, but they say now he is 
going to have to pay for someone to do household chores, and he is 
going to have to have his car altered, get a special automobile, and he 
will have to have ramps in his house. All that gets covered, and it 
gets covered well, and we think that is the case in the most egregious 
examples.
  I think, and I think a majority of the Members of Congress will vote 
that way tomorrow, that the crisis is real, the crisis is upon us, and 
the crisis is severe. We have the best health care system in the world, 
but people will and have already died because they could not get to a 
trauma center, because the trauma center did not have the docs there 
because the docs did not have the insurance. And those people who are 
injured because they cannot get access to health care are just as hurt 
and just as damaged and just as dead, unfortunately, because the system 
is not working.
  We can solve this problem with this legislation. It is fair, it is 
balanced, and I thank my colleagues again for this excellent 
opportunity to tell America about this.
  Mr. GINGREY. Madam Speaker, I thank the gentleman, the author of this 
bill, the distinguished gentleman from Pennsylvania (Mr. Greenwood) and 
the work that he has done on H.R. 5 trying to address this problem.
  Madam Speaker, I notice that a couple of our colleagues who are 
doctors have joined us in the Chamber, and I would like to call on them 
to talk about this crisis and the medical justice bill, the Greenwood 
legislation, H.R. 5, which we are going to pass tomorrow and hopefully 
get that passed in the Senate and solve this problem.
  First of all I will yield to the gentleman from Pennsylvania (Mr. 
Murphy). Dr. Murphy.
  Mr. MURPHY. Madam Speaker, I thank the gentleman from Georgia (Mr. 
Gingrey), Dr. Gingrey, for yielding to me, and I appreciate the 
gentleman from Pennsylvania (Mr. Greenwood) taking the lead on H.R. 5 
because it is an important bill.
  Madam Speaker, I want to focus some of my comments on some 
explanations of what else is happening in Pennsylvania, because I think 
it is very valuable. Liability rates are skyrocketing, and many doctors 
are finding it difficult or impossible to afford to practice medicine 
in Pennsylvania. During the first 8 months of 2002 alone, more than 110 
Pennsylvania obstetricians stopped practicing in the State. Entire 
graduating classes of prestigious medical residents in institutions 
moved out of the State to practice.
  Furthermore, about 70 percent of Pennsylvania doctors cannot even 
afford to buy new equipment or hire new staff because they are strapped 
by the rising rates, according to a recent survey by the Pennsylvania 
Medical Society. Doctors are overworked, understaffed, working on aging 
equipment, and patients' access to quality health care has never been 
more threatened. For example, as a consequence of fewer obstetricians, 
many pregnant women now have to drive over an hour on the hilly roads 
of southwestern Pennsylvania just to see their doctor.
  In my career I have worked in neonatal intensive care units, and I 
know the consequences of a mother who is in premature labor, especially 
those traveling long distances because there are no obstetricians 
nearby. In fact, there are increased risks for a child to have a 
variety of potential problems.
  I wonder if I might ask the gentleman from Georgia a question on 
this. I know I have seen children whose mothers go into premature 
labor, and I think my colleague will agree that oftentimes time is of 
the essence. If that child is perhaps born at 24, 27 weeks, 3 or 4 
months premature, there are a number of complications that can occur. 
As an obstetrician, what kind of time frame are we looking at under 
those circumstances where one has to get that baby to a hospital where 
there are specialists there?
  Mr. GINGREY. I appreciate that question from the gentleman from 
Pennsylvania because it is so critical, and my colleague has worked so 
closely in that area dealing with those type patients after the fact 
and trying to work through their unfortunately permanent problems that 
they sustain as a result of that lack of access to care.
  I can just anecdotally tell of a situation in my own family, Madam 
Speaker. My grandchildren, my twin granddaughters, who are precious, of 
course, as all grandparents talk about their grandchildren, but mine 
are now 5\1/2\ years old, but they were born at 26\1/2\ weeks. Now, 
very fortunately, we were in a community where we had excellent care. 
We had access to OB/GYN care; in fact, my own group. And we had a 
wonderful hospital and a wonderful intensive Neonatal Intensive Care 
Unit that the gentleman from Pennsylvania (Mr. Murphy) is talking 
about. But had that occurred in a rural community, had that occurred in 
a community like West Virginia or Pennsylvania, where we are in a 
crisis mode, and physicians because of the inability to pay for these 
outlandish, outrageous malpractice fees caused by this crisis, then our 
little grandchildren would have not had that care and, without 
question, they would have become a statistic, as the gentleman from 
Pennsylvania is talking about.

  That is the tragic situation that we would have experienced, and that 
others have experienced because of this crisis, not to mention the cost 
to society in trying to take care of children that sustain brain injury 
because of a lack of access to adequate obstetrical care. So I am so 
grateful the gentleman from Pennsylvania brought that up.
  Mr. MURPHY. Madam Speaker, I appreciate what the gentleman has said, 
because it is so important in many children I have seen and I have 
followed where we have seen the mental retardation and cerebral palsy 
and brain damage. Luckily, many of these

[[Page H1794]]

children do survive and do well, but sometimes the results are tragic 
so often because it requires more time for that baby to get to the 
hospital. It breaks our heart to think more of these cases may occur 
because there are not obstetricians delivering them in regions of the 
State.
  I have also been told by a parent whose young child suffers from 
seizures that they have to wait 6 to 8 weeks just to see a pediatric 
neurologist because of a shortage of doctors in that specialty in the 
region. Our distinguished colleague from West Virginia mentioned a 
hospital in Wheeling, West Virginia. I know some of the physicians who 
actually live in my area staff that hospital, and they have told me of 
the deep concerns they have that a neurosurgeon is not available. So if 
someone suffers from a stroke, a helicopter has to be called and they 
have to transport that person to a hospital somewhere else. That hour 
can mean the difference between life and death or between a functional 
and dysfunctional life.
  The opponents to reform blame soaring interest rates and also the 
sagging investment revenue of insurance companies due to the stock 
market decline. But if that were true, all States would be hit equally 
by the crisis, which is simply not the case. From 1998 to 2002, average 
liability for Pennsylvania obstetricians jumped from $25,000 to over 
$64,000. This is compared to States like Wisconsin and California that 
have seen average premiums hold steady at $35,000 to $45,000.
  The truth is malpractice awards in Pennsylvania continue to be 
unusually large. During the year 2000, combined judgments and 
settlements in the State amounted to $352 million, nearly 10 percent of 
the national total, and juries in Philadelphia have awarded more in 
malpractice damages than the entire State of California did over the 
last 3 years.
  To fix this problem we need balanced medical liability reform that 
ensures patients who are truly hurt by malpractice are fully and fairly 
compensated for as long as they need but that does not jeopardize the 
access of all patients to quality care.
  I might also add that we faced many of these problems in Pennsylvania 
while I served as a State Senator, and we worked to pass a number of 
reforms in the medical liability system. These included strengthening 
the State Medical Board's power by granting an enforcement authority to 
investigate physicians with patterns of error, allowing malpractice 
judgments for future medical costs to be spread over time, requiring 
claims to be filed within 7 years from date of injury, eliminating the 
duplication of recovery for past medical expenses, and allowing doctors 
and hospitals to have verdicts lowered by a judge if it would force the 
closure of a medical practice or force a hospital to cut services, 
thereby damaging the ability to service the community.
  Now, some of these are actually in H.R. 5, but I might add this. 
While these Pennsylvania State reforms were a step in the right 
direction, they have not had the full positive effects, and there are 
three majors reasons why.
  First and foremost, these reforms do not provide a cap on noneconomic 
damages, because in Pennsylvania the State Supreme Court has ruled such 
caps to be unconstitutional and it would require an amendment to the 
Constitution, taking 3 to 4 years to change that.
  Secondly, a large percentage of the malpractice cases currently 
making their way through the system were filed before this legislation 
in Pennsylvania was passed and they cannot be affected retroactively.
  Three, insurance companies are expecting court challenges to be filed 
against the legislation and are waiting to see if the reforms are 
upheld in court before taking any action. As such, it will probably 
take several years to see the full effect of the legislation, and it is 
for this reason we need to pass reforms at the Federal level. That is 
why we need to pass the HEALTH Act, which will provide full and fair 
compensation.

  The bill would also change the current contingency fee system in 
which attorneys are encouraged to pursue larger settlements in order to 
receive bigger paychecks. It would use a sliding scale for that.
  The HEALTH Act would also permit defendants to be held liable for no 
more than their share of responsibility for plaintiff's injuries, 
requiring insurance payments are deducted from damage awards and 
creating a statute of limitations for filing new lawsuits.
  As someone who has spent his career in both health care and public 
policy, I have seen firsthand the need for comprehensive medical 
liability reform. We need solutions that address the problems at their 
root and not just stopgap Band-Aids that temporarily cover up the 
crisis. Above all, we need to ensure we fully protect patients who are 
genuinely damaged by medical malpractice while protecting the access of 
all patients to the best health care our State and our country has to 
offer.
  That is why I believe we need to pass H.R. 5 and make sure that, 
above all, we protect patients' lives.
  Mr. GINGREY. Madam Speaker, I thank the distinguished doctor, the 
gentleman from Pennsylvania, for his testimony.
  I want to just share some statistics with the Chamber and then yield 
to the distinguished OB/GYN physician, the gentleman colleague from 
Texas (Mr. Burgess), to tell us a little bit about, through his eyes, 
what the State of Texas is faced with.
  Indeed, Madam Speaker, Texas, just as Pennsylvania, just as West 
Virginia, just as Georgia, is one of those crisis States. According to 
a Texas Medical Association poll of Panhandle doctors, 61 percent, 61 
percent, have plans to retire early, and 83 percent say they use 
defensive tactics in practicing medicine for fear of being sued.
  Another story from south Texas. A pregnant woman was forced to drive 
80 miles to a San Antonio doctor and hospital because her family doctor 
in her more rural hometown had recently stopped delivering babies, 
citing malpractice concerns.
  Madam Speaker, at this time I yield to a distinguished physician, the 
gentleman from Texas (Mr. Burgess).
  Mr. BURGESS. Madam Speaker, I thank the gentleman from Georgia for 
yielding to me, and tonight I rise to share stories from the State of 
Texas that represent where we are in this current medical liability 
crisis. And I would stress, because we did hear from some of our 
colleagues from Texas from the other side of the aisle, that this is 
indeed a national crisis and it affects all of us on a national scale. 
It is not a local crisis.
  Back in my district, just this past week, on Friday, a young man, a 
doctor named Kevin Magee, came to my attention. Dr. Magee is what is 
called a perinatologist practicing in Plano, Texas. Perinatologists are 
obstetricians, just as myself and the gentleman from Georgia (Mr. 
Gingrey) are, but they are kind of like an obstetrician plus. That is, 
they spend an additional 2 years in training, in fellowship, and they 
take care of the sickest mothers. They deliver the smallest babies. 
They are truly, truly an asset and a blessing to any community that has 
the services of a perinatologist.
  Unfortunately, just by virtue of what they do for a living they 
become lawsuit magnets. This year, Dr. Magee received his bill for his 
medical liability insurance coverage and found it came to over 
$125,000. Now, this young doctor graduated from medical school in 1988 
at the University of Texas Medical School in San Antonio. He went to a 
State supported school. That means that as a taxpayer, the State of 
Texas, I, and other citizens of Texas partially subsidized his 
education. We are not getting our money's worth out of his medical 
career because now, 10 years after going into practice, he has had to 
close his doors. He is unable to continue caring for his patients 
because his practice could not earn enough money to pay his liability 
insurance costs. The community lost a young man in the prime of his 
career.
  I was talking to Dr. Magee back in the district last Friday, and the 
conversation was overheard by another individual who, somewhat 
cynically, suggested that, well, Dr. Magee, being an OB doctor is a 
hard job and maybe you are better off now in business. He had to close 
his practice last October, and now he is working in an allied field but 
no longer in direct patient care.

                              {time}  2000

  This person suggested to Dr. Magee, maybe you are better off not 
having to deliver those premature babies in the

[[Page H1795]]

middle of the night. Dr. Magee stopped, and I could see the tears well 
up in his eyes. This was the job that he had trained for, 4 years of 
college, 4 years of medical school, 4 years of residency, and 2 years 
of fellowship. He said, ``I would be back in the delivery room this 
afternoon if I only could.''
  Madam Speaker, with stories like that, we have to ask ourselves if 
this current litigious environment is good for patient care and patient 
access. I submit the answer to that question is, no.
  In fact, a 1996 study done in Stanford, California, published in the 
1996 ``Quarterly Journal of Economics'' demonstrated how broken the 
system is by clearly showing that the current medical liability 
environment does not improve patient access or patient care and has a 
negative impact on health care costs. The report, written by Daniel 
Kessler and Mark McClellan shows that States that had reformed their 
liability systems with laws that cap noneconomic damage awards and 
abolished mandatory prejudgment interest and place limits on attorney 
contingency fees, reduce hospital expenditures by 5 to 9 percent within 
3 to 5 years of adoption of these laws.
  The costs brought about by the current environment are borne by our 
entire system, from the family purchasing their own health insurance, 
to the business person, the entrepreneur trying to provide coverage to 
their employees, to the American taxpayer that supports medical 
services through Medicare, SCHIP and Medicaid programs. What does this 
5 to 9 percent translate to in dollar terms? McClellan and Kessler's 
model shows that in States with effective tort reform, Medicare costs 
were 5.3 percent less for a new diagnosis of acute myocardial 
infarction and 9 percent less for ischemic heart disease.
  If we applied this nationally across the country, this would mean 
that direct liability reforms would save $600 million a year in the 
Medicare program. And further extrapolating these costs across 
America's health system, this amount would come to a savings of $50 
billion a year. Why are costs higher in States that have not enacted 
reforms such as those contained in H.R. 5? Because doctors have become 
accustomed to practicing defensive medicine, ordering tests they know 
their patients do not need, but could save their practice should a 
trial lawyer file suit against them. This wasteful health care spending 
drives up the cost for everyone, even the trial lawyers, so average 
Americans are saddled with additional costs when they go to the doctor.
  Now, some will argue that additional medical services are a good 
thing. As a doctor in private practice, charge it up. They may say a 
doctor performing more tests may save more lives. However, this 
Stanford study shows that between the reform States and the nonreform 
States, mortality rates remain constant, indicating that a highly 
litigious environment does not improve patient health outcomes. The 
current environment is not conducive to low-cost, high-quality health 
care; and it must be changed.
  The Congressional Budget Office has concluded that H.R. 5 would lead 
to an increase in the number of employers offering insurance to their 
employees and to the number of employees enrolling in employer-
sponsored insurance and changes in the types of health plans that are 
offered and increasing the scope or generosity of the health benefits 
offered. In part, this development would be a result of lower health 
care costs.
  As we have already seen in California, health care costs in that 
State are an estimated 6 percent lower than other States, saving 
California patients $6 billion every year on health care, all because 
California in 1975 had the foresight to adopt meaningful medical 
liability reform. H.R. 5 was molded after this successful approach.
  I know my colleagues from Texas were here on the other side of the 
aisle earlier tonight and said that the California Medical Association 
did not like the Medical Injury Compensation Reform Act of 1975; but 
let me quote for a moment from a press release from January 16, 2003, 
which said that the California Medical Association applauds the call 
for a national medical liability law. President Bush and Senator Dianne 
Feinstein cite the California law as a national model:
  ``This has been a success in California for decades, and many States 
are looking to our State as a model,'' John Whitelaw, president, 
California Medical Association, and an OB-GYN physician.
  We have a plan to reform the medical liability system, and ensure 
that doctors will be there when they are needed, doctors such as Dr. 
Kevin Magee in Plano, Texas. The HEALTH Act contains much-needed 
reforms to provide this security beginning with a provision ensuring a 
speedy resolution to claims. This means that the statute of limitations 
is clearly defined.
  There are some exceptions to this, but this component ensures that 
claims are brought before evidence is destroyed and while memories are 
still fresh. The bill also weighs the degree of fault in a claim so a 
person with only 1 percent of the blame is not forced to pay 100 
percent of the damages, as is the case now. This component eliminates 
the incentive to look for deep pockets, making one party unfairly 
responsible for another's negligence.
  With this legislation, patients would also receive full compensation 
for their actual damages. Patients are able to recover maximum economic 
damages. These are items that have a quantifiable amount attached to 
them, such as medical expenses and loss of future earnings.
  Lastly, this bill gives flexibility to States that have already 
enacted damage caps, and we have heard over and over again from the 
other side of the aisle from some of my colleagues in Texas that this 
law took away from States the right to do what they thought was the 
right thing. But in fact, as the gentleman from Pennsylvania (Mr. 
Greenwood) pointed out, it does no such thing. We have respected 
States' rights and their ability to enact and enforce other damage caps 
other than those provided in this plan. The $250,000 cap on noneconomic 
damages serves as a floor on noneconomic damages for States that have 
no plans in place. States with higher limits, whether higher or lower, 
can continue to enforce those limits.
  The U.S. Congress has an opportunity to positively impact the cost 
and improve the access of health care in the United States. In fact, 
the United States Congress has the responsibility to pass this bill and 
pass much-needed medical liability reform.
  The United States Congress must act, not only for the well-being of 
patients, but access to doctors, caring doctors, good doctors like Dr. 
Kevin Magee in my district, who have dedicated their lives to the 
business of healing.
  In America, where it is easier to sue a doctor than to see a doctor, 
something has got to be done. I urge my colleagues to make a commitment 
to the health care of American families and vote for H.R. 5.
  Mr. GINGREY. Madam Speaker, I want to share some examples of 
excessive costs for liability concerns. Consider this: an April 2002 
survey of physicians showed that nearly 80 percent have ordered more 
tests than medically needed because the doctors feared being sued, and 
nearly 75 percent referred patients to specialists more often than 
necessary. Doctors spent $6.3 billion last year on medical liability 
coverage. Hospitals and nursing homes spent billions more. The Federal 
Government, through its funding of Medicare, Medicaid and other 
programs, pays an additional $28 to $47 billion a year for health care 
due to the cost of medical liability coverage and defensive medicine.
  Madam Speaker, I would like to yield to the gentleman from Iowa (Mr. 
King).
  Mr. KING of Iowa. Madam Speaker, I thank the gentleman from Georgia 
(Mr. Gingrey) for yielding, and it is a privilege for me to be here 
this evening to address this subject matter with my physician 
colleagues, of which we have many in the Congress.
  Madam Speaker, I rise in strong support of H.R. 5, the HEALTH Act. 
The rising cost of health care has become an unrelenting problem. As I 
have said before, it has become easier to sue a doctor than see one. 
When access to health care is jeopardized, patients suffer. Doctors are 
leaving practice, and emergency rooms are closing their doors because 
of the astronomical increase in malpractice insurance premiums.

[[Page H1796]]

  Health care costs are rising faster than they have in a decade, 
largely because the medical liability system is broken. Americans spend 
more per person in the cost of litigation than any other country in the 
world.
  Unrestrained escalation in jury awards is the primary cause of the 
emerging medical liability crisis. The median medical liability award 
jumped from $700,000 in 1999 to $1 million in the year 2000. That is a 
43 percent increase. Today the average award is $3.5 million. Members 
can do the math on what that does to medical liability premiums.
  As a member of the Committee on the Judiciary, I have had an 
opportunity to mark up this legislation, which will grant better access 
to health care by fixing some of the broken medical liability systems 
that are driving doctors out of business. H.R. 5 is an effective 
bipartisan bill. It allows for unlimited economic damages such as 
medical expenses and loss of earnings. But it establishes a reasonable 
limit on noneconomic damages, commonly referred to as ``pain and 
suffering.'' It also factors in degree of fault, eliminating the 
incentive to look for the deep pockets that makes one party unfairly 
responsible for another's negligence.
  It is modeled after California's liability reform law passed in the 
early 1970s, which stabilized the State's medical liability insurance 
market and increased patient access to care and saves more than $1 
billion a year in liability premiums.

  The MICRA Act was passed nearly 30 years ago; and in all that time 
Congress has sat back and watched its success, while at the same time 
watching the health care crisis grow across the Nation.
  Last year the House passed legislation identical to H.R. 5, but the 
Senate refused to act. With 18 States facing severe patient access 
crises, and my own State of Iowa showing problem signs, it is time that 
we take some action. In Iowa's case, we do not have room to spare. We 
sit last in Medicare reimbursement rates, and we are 50th out of the 50 
States. It is a long ways up to 49. Our margin is very, very slim. 
Additionally, though, we have been able to improve the quality of our 
care, but access is a critical issue. Many of our health care services 
have gone out of State because of our low Medicare reimbursement rate; 
and with the additional cost of premium and the distance between 
people, it is critical that we pass H.R. 5.
  This measure will help our struggling rural hospitals increase 
availability of medical services and lower health care costs. We need 
to do more to lift the burden of rampant, frivolous litigation off the 
backs of the American people; and this is a good start.
  My daughter-in-law, Heather, is in medical school now and plans to 
build a future in the profession that many of my colleagues have 
chosen. The decision for her is can she withstand the rising cost of 
malpractice premiums.
  Last weekend, I caught a ride on a plane back to Iowa. I happened to 
sit across the aisle from an OB-GYN with her baby on her lap. And in 
the 3 years she has practiced in this region, her premiums have gone 
from $10,000 to $60,000 per year. We hear higher numbers, but I do not 
know if I have heard a higher percentage increase, and that is with no 
claims against her practice.
  Madam Speaker, I will vote for this bill with great faith that it 
will be a significant first step for this Congress to address the 
impending health care crisis.
  Mr. GINGREY. Madam Speaker, I thank the gentleman for sharing his 
experience in his State.

                              {time}  2015

  Madam Speaker, I see that the gentleman from Florida, the 
distinguished doctor of internal medicine, has joined us in the 
Chamber. I yield to the gentleman from Florida (Mr. Weldon).
  Mr. WELDON of Florida. I want to thank my colleague from Georgia, a 
former practicing physician in the practice of OB/GYN for his 
leadership on this very, very important issue. This is obviously a 
national crisis. It has regional features to it. California is not in 
the throes. They passed their malpractice reform.
  We have got a real problem in Florida. Indeed, the Level 1 trauma 
center at Orlando Regional Medical Center is about to close down. The 
principal reason for that is they cannot get enough neurosurgeons to 
support the trauma center. One of the principal reasons they cannot get 
enough neurosurgeons to support it is that they cannot recruit 
physicians into the State of Florida and one of the biggest reasons for 
that is the astronomical cost of medical malpractice in the State of 
Florida. This is becoming an access issue. In the central Florida area 
of Orlando and the east central coast, Brevard County, where I live, 
you have upwards of 2, 3 million people in this region and we are going 
to lose one of the principal trauma centers. So people are going to 
suffer. People are going to die because of the medical malpractice 
crisis that we are facing in this Nation today.
  I just want to address one very, very important issue about this 
whole matter. This is an incredible cost to our economy. It is an 
incredible drag on our whole health care system. There was an 
outstanding study. It was published in the Journal of Economics in 1995 
out of California. They looked at the costs for two diagnostic codes, 
unstable angina and myocardial infarction, pre-California MICRA 
reforms, and then post-California MICRA reforms and showed a dramatic 
reduction, $500 million in the State of California for just those two 
diagnostic codes just because of those reforms. It clearly shows that 
defensive medicine is real. I know defensive medicine is real, you know 
defensive medicine is real, the other OB/GYN in the room knows 
defensive medicine is real. We practice defensive medicine every day. 
These researchers out of Stanford University were able to show the 
incredible cost. This is in 1995 dollars. They extrapolated that it 
costs health care in our Nation $50 billion a year, and I assume it is 
now $100 billion a year.
  Madam Speaker, the Medicare program could save billions of dollars a 
year nationwide if we can pass medical malpractice reform. Those are 
dollars that can best be used to provide prescription drug benefits for 
seniors and other enhanced benefits, or extend the solvency of the 
Medicare program. This is a horrible, horrible crisis that we have 
today that is hurting the taxpayer. It is hurting all Americans. 
Indeed, this high cost of medical malpractice ends up costing us more 
money to just provide health care, and that in effect is a drag on our 
whole economy and it affects our ability to be competitive in the world 
marketplace.
  We must pass this bill. The other body needs to pass this bill. It is 
good for America, it is good for health care in America, and certainly 
it would help us in the area I live to be able to keep our trauma 
center open and operating. I want to thank my good friend from Georgia 
and my good friend from Texas for their leadership on this very, very 
important issue.
  Mr. GINGREY. I thank the gentleman from Florida, the distinguished 
doctor, for sharing those remarks with us. As one of the original 
cosponsors of this bill, of H.R. 5, he deserves a lot of credit for 
bringing it to this point.
  Madam Speaker, in closing, as I said at the outset of the hour, this 
bill is not about denying access to a redress of grievances, if you 
will, for a patient who has been injured by a physician or a facility 
who is practicing below the standard of care for that community. 
Nothing in this bill does that, and it is not a bill to take away the 
right of a profession, an attorney who is engaged in personal injury 
work, to do their work and do it well. It is not about that at all. It 
really is about two things. It is about saving a great profession for 
my doctor colleagues, yes, but that is not the most important thing. 
The most important thing is to try to save a health care system, 
arguably the best in the civilized world, from the destruction of a 
legal system that has run amuck. That is what H.R. 5 is about, the 
HEALTH Act of 2003, the Medical Justice Act, if you will. I am a very 
proud cosponsor of this legislation. Tomorrow, when I vote for H.R. 5, 
it will be a very important moment in my young political life. I 
predict that this bill will pass this House of Representatives and we 
will move it on to the Senate. It is time for the Senate to act. 
Patients demand it. Our constituents demand it. It is too important to 
miss this opportunity.




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