[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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