[Congressional Record Volume 149, Number 41 (Thursday, March 13, 2003)]
[House]
[Pages H1817-H1829]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




PROVIDING FOR CONSIDERATION OF H.R. 5, HELP EFFICIENT, ACCESSIBLE, LOW-
              COST, TIMELY HEALTHCARE (HEALTH) ACT OF 2003

  Mr. REYNOLDS. Mr. Speaker, by direction of the Committee on Rules, I 
call up House Resolution 139 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 139

       Resolved, That upon the adoption of this resolution it 
     shall be in order without intervention of any point of order 
     to consider in the House the bill (H.R. 5) to improve patient 
     access to health care services and provide improved medical 
     care by reducing the excessive burden the liability system 
     places on the health care delivery system. The bill shall be 
     considered as read for amendment. In lieu of the amendments 
     recommended by the Committees on the Judiciary and on Energy 
     and Commerce now printed in the bill, the amendment in the 
     nature of a substitute printed in the report of the Committee 
     on Rules accompanying this resolution shall be considered as 
     adopted. The previous question shall be considered as ordered 
     on the bill, as amended, to final passage without intervening 
     motion except: (1) two hours of debate on the bill, as 
     amended, with 80 minutes equally divided and controlled by 
     the chairman and ranking minority member of the Committee on 
     the Judiciary and 40 minutes equally divided and controlled 
     by the chairman and ranking minority member of the Committee 
     on Energy and Commerce; and (2) one motion to recommit with 
     or without instructions.
       Sec. 2. House Resolution 126 is laid on the table.

  The SPEAKER pro tempore (Mr. Thornberry). The gentleman from New York 
(Mr. Reynolds) is recognized for 1 hour.
  Mr. REYNOLDS. Mr. Speaker, for the purpose of debate only, I yield 
the customary 30 minutes to the gentleman from Florida (Mr. Hastings), 
pending which I yield myself such time as I may consume. During 
consideration of this resolution, all time yielded is for the purpose 
of debate only.
  (Mr. REYNOLDS asked and was given permission to revise and extend his 
remarks.)
  Mr. REYNOLDS. Mr. Speaker, House Resolution 139 is a closed rule 
providing 2 hours of debate for consideration of H.R. 5, Help 
Efficient, Accessible, Low-cost, Timely Healthcare Act, more commonly 
known as the HEALTH Act. The rule waives all points of order against 
consideration of the bill and provides one motion to recommit with or 
without instructions.
  Mr. Speaker, my home State of New York has been designated by the 
American Medical Association as one of the 18 crisis States because of 
the staggering number of physicians that are unable to obtain or afford 
liability insurance. It is not just physicians that are feeling the 
crunch; hospitals and other providers have also reached their breaking 
point.
  Take, for example, family-run skilled nursing facilities in my 
district that have not once had a claim brought against them, yet they 
have seen their liability insurance rates climb over 200 percent during 
the past 2 years alone. That is 200 percent in the last 2 years alone.
  According to a study conducted by the American Hospital Association 
and the American Society of Risk Management, one-third of the hospitals 
experienced an increase of 100 percent or more in liability insurance 
premiums in 2002. Meanwhile, patients are the ones losing choices, 
access, and care.
  Mr. Speaker, last September I stood on this floor to speak in favor 
of the HEALTH Act. Since that time, my home community of Erie County, 
New York, has lost 40 actively practicing physicians. Only 3 months 
into the current year, they are anticipating a loss of another 20 
physicians. If we do not solve the problems facing physicians in this 
community and so many others across America, who will provide the 
health care services so vital to all of our constituents?
  The fact is that physicians are limiting their patients, moving to 
States with lower insurance rates, or closing their practices 
altogether. The fact is that astronomical costs and unpredictability in 
the legal system are causing this alarming trend.
  The effect? Doctors practice defensive medicine to avoid litigation 
and think twice about openly discussing and reporting possible errors. 
A study released by the Department of Health and Human Services last 
week emphasizes that bolstering predictability in the legal system will 
dramatically reduce the incentives for unnecessary lawsuits. Those who 
need care will get it faster and more reliably, and those who may need 
proper redress will get it faster and more reliably.
  The HEALTH Act will provide that predictability, while at the same 
time halting the exodus of providers from the health care industry, 
stabilizing premiums, limiting astonishing attorney fees, and above 
all, improving patient care.

[[Page H1818]]

  Just as important is what HEALTH Act will not do. It will not preempt 
any existing State laws that limit damages at a specific amount, and it 
will not establish any new causes of action.
  Also, it will not prevent juries from awarding unlimited economic 
damages. This means that quantifiable lost wages, medical costs, pain-
reducing medications, therapy and lifetime rehabilitation can all be 
recuperated as tangible economic damages. Patients that have been 
wrongly injured will not be denied access to substantial amounts in 
economic damages.
  The HEALTH Act is modeled after legislation adopted by a Democratic 
legislature and a Democratic Governor in the State of California nearly 
30 years ago. While insurance premiums increased over 500 percent 
nationwide, California's have risen only a third of that much, by 167 
percent.
  California's insurance market has stabilized, increasing patient 
access to care and saving more than $1 billion per year in liability 
premiums. Equally important, California doctors are not leaving the 
State.
  By following California's lead to place modest limits on unreasonable 
economic damage awards, an estimated $60 billion to $108 billion could 
be saved in health care costs each year. The Congressional Budget 
Office calculated that medical liability insurance premiums would be 
lowered an average 25 to 30 percent from what they are now under 
current law. And CBO also predicts that reducing the occurrence of 
defensive medicine would save anywhere from $25 billion to $44 billion 
per year of taxpayers' money.
  I want to thank the leadership of the Committee on Energy and 
Commerce and the Committee on the Judiciary for working so 
expeditiously to bring this important measure back to the floor and 
focusing our attention on health care, particularly for coupling the 
HEALTH Act this week with patient safety legislation. Physicians need 
an environment where they can both share and learn, while at the same 
time practicing medicine without the fear of burgeoning liability rates 
and unnecessary lawsuits.
  Mr. Speaker, spiraling medical liability insurance rates have 
hemorrhaged in recent years. Today we have an opportunity to stop the 
bleeding and maximize healthy patient outcomes. I urge Congress to 
support this rule and the underlying legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield myself such time as I 
may consume.
  (Mr. HASTINGS of Florida asked and was given permission to revise and 
extend his remarks.)
  Mr. HASTINGS of Florida. Mr. Speaker, let me say to the gentleman 
from New York (Mr. Reynolds) that the gentleman and I handled this 
measure last fall when this bill was brought to the floor. It was a bad 
bill then, and it is a bad bill now. I also want to clear up something 
about so-called unnecessary lawsuits. There are penalties for lawyers 
who bring frivolous claims into any courtroom; thus, I theorize that 
the majority evidently does not understand that particular distinction.
  Mr. Speaker, I rise today in strong opposition to this closed rule 
for H.R. 5. This legislation requires a full and open debate. The 
closed rule is abhorrent and cowardly. It denies the opportunity for 
free and fruitful discussion that would uncover all this legislation's 
deficiencies.
  The current Committee on Rules chairman, the gentleman from 
California (Mr. Dreier), said in 1994 when a Member of the minority, 
and referring to the Democratic members of the Committee on Rules, 
``But we should have a structure which allows Members to participate 
more than they do now, and that it is again underscoring Lord Acton's 
very famous line that power corrupts, and absolute power corrupts 
absolutely. The arrogance of power with which they prevent Members, 
rank-and-file Democrats and Republicans, from being able to offer 
amendments, that is what really creates the outrage here.''
  That was the gentleman from California (Mr. Dreier), and outrage 
continues in the minority today. If the majority alleges that Democrats 
were wrong in utilizing the closed rule when we were in the majority, 
why not be the bigger party and end the practice? Why the political 
games, or is it simply more fun to be principled when it is convenient?
  There is no question that medical liability insurance rates are out 
of control. Consequently, fine doctors, as well as other health care 
providers, often do not properly attend to patients. However, the 
underlying bill will not relieve doctors of high malpractice insurance 
premiums. I am focused on giving Americans quality health care, as all 
of my colleagues are, not increasing profits for the health insurance 
industry; and there are good proposals to correct the situation. H.R. 5 
is not one of them.
  Instead of protecting patients, H.R. 5 protects HMOs and big 
insurance companies. The so-called HEALTH Act of 2003 addresses the 
health of the health care industry and not that of physicians and 
patients. H.R. 5 is bad legislation; but like perennial flowers, its 
contents sprout every Congress, replenishing the coffers of its 
supporters. HMOs and big health insurers should not receive special 
treatment. They are not above the law. Nor should they be exempt from 
new legislation simply because they contributed millions of dollars in 
the last two election cycles.
  H.R. 5 applies to medical malpractice, medical products, nursing 
homes, and health insurance claims because its supporters' true concern 
is not the suffering of patients or victims. Instead, H.R. 5 advocates 
want immunization from the consequences of irresponsible civil 
behavior.
  The top priority in reforming America's health care system should be 
reducing the shameful number of preventable medical errors that kill 
nearly 100,000 hospital patients a year.
  Wrong-doers must remain accountable. When a stay-at-home mom dies or 
a child dies or a senior citizen suffers irreparable harm, there is no 
economic loss because it is impossible to prove damages from loss of 
income. H.R. 5 takes away compensation for parents who lose children, 
husbands who lose wives, children who lose parents, and patients who 
lose limbs, eyesight and other very real losses that are not easily 
measured in terms of money.
  Despite a wide consensus, skyrocketing premiums are not due to bad 
politics. The malpractice insurance market is having a predicament 
because of the insurance industry. The other side of the aisle claims 
that the lure of big wins prompts many to file frivolous lawsuits. But, 
in fact, victims are already at a disadvantage. Two-thirds of patients 
who file a claim do not get a dime. About 61 percent of cases are 
dismissed or dropped, and 32 percent are settled; and too many of them 
are on the courthouse steps when they could have been settled earlier. 
Only 7 percent of all cases go to trial.

                              {time}  1030

  Patients prevail in only one in five of the cases that are tried. 
These are pretty staggering odds against the victims.
  The American people would know these truths if their Representatives 
could expose the selective use of data and statistics that the majority 
uses in supporting H.R. 5. One classic example would be the notion that 
in California, after 1975, premiums went down. Well, they did not go 
down until California reformed the insurance laws. It did not go down. 
It went up progressively for 12 years.
  But under today's closed rule, the majority is committing the 
greatest form of political malpractice. When the majority has finished 
bullying its members into voting the party line today, the American 
people will not only be barred from seeking compensation when a doctor 
transplants an incorrect organ but they will realize that with closed 
rules as the order of business, they cannot even seek compensation in 
the People's House.
  For example, if this bill were current law, no experienced trial 
lawyer would take the case of the young Mexican girl who lost her life 
at Duke University. The case would be complex, obviously, and expensive 
to put on, there would be no economic damages, and the maximum 
noneconomic award would be $250,000. H.R. 5 treats the health care 
insurance businesses as the victims, and that is unacceptable.
  The consequences of an injury are highly subjective and affect 
different people in vastly different ways. Put another way, how much is 
my arm worth? How much is your leg worth? This one-size-fits-all 
solution contradicts the

[[Page H1819]]

promise of individualized justice and objectifies victims and the 
uniqueness of their suffering. Different States have different 
experiences with medical malpractice insurance and insurance remains a 
largely State-regulated industry. The $250,000 cap that must have been 
taken out of somebody's cap as a reason for going forward takes away 
juries' abilities in our States to determine the appropriate level of 
compensation for people who suffer grievous injuries at the hands of 
their health care providers. The majority does not trust the people to 
defend its political contributors.
  Al Hunt of the Wall Street Journal quoted a Republican lawyer from 
Houston as asking, ``Why are juries okay to take a man's life on the 
criminal side but are not competent to put a dollar value on an 
innocent victim's life on the civil side?'' That is shameful. H.R. 5 is 
a health care immunity act that does not benefit physicians and 
victimizes patients.
  When Democrats were in the majority, Republicans complained time 
after time that closed rules were unfair. On all of the radio 
infrastructure, we heard closed rules were unfair, unpatriotic and 
contrary to the goals of the framers. However, in more than 8 years 
that Republicans have been in the majority, closed rules are preferred 
and ruling with an iron fist is the practice. I am in strong opposition 
to this closed rule and the underlying bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. REYNOLDS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, the debate has begun. We are going to have an hour on 
this rule. I believe after that we are going to have 2 hours of general 
debate. It really cuts right down through the center. As I talked about 
excessive court trial damage driving up the cost of patient health 
care, I listened to the other side say it is the insurance companies 
and the doctors that are the cause of so much of this. It will be a 
good debate. It will be a full hour here on this rule and it will be 2 
hours of general debate, and then we are going to have an up or down on 
the HEALTH Act and we are going to find out whether it is passed and 
sent to the other body.
  But I must say that over 60 percent of the doctors in the United 
States are insured by insurance companies that are owned and operated 
by other doctors and which operate primarily for their benefit. The 
idea that those companies would price-gouge the very physicians who own 
them, I think, is absurd.
  Mr. Speaker, I yield 3 minutes to the gentleman from Florida (Mr. 
Weldon).
  Mr. WELDON of Florida. I thank the gentleman for yielding me this 
time.
  Mr. Speaker, I practiced defensive medicine for 15 years before I was 
elected to Congress. Defensive medicine is extremely costly. The way it 
works is very simple. The patient comes in. You think the patient has 
something. And then you think of all the other things that it could be 
and how you could be sued if you missed those things, so you order more 
and more tests. You may say, well, this is just one doctor speaking 
anecdotally, but actually this very issue was studied scientifically in 
California. They looked at the reforms put in place in California and 
its impact on charges in the Medicare plan. They discovered that over 
time after the cap on damages went into place and the threat of very, 
very excessive damages went away that charges for two diagnostic codes, 
the two codes they looked at were unstable angina and myocardial 
infarction, went down and there was no increase in morbidity and 
mortality. In other words, quality was maintained while charges went 
down.
  This study was published in 1995 in the Journal of Economics. It was 
done by economics professors at Stanford University. They argued that 
the high cost of litigation cost the Medicare plan billions of dollars 
a year in unnecessary procedures and tests. They further went on to say 
that it cost, in 1995 dollars, our health care system $50 billion a 
year. Today that figure is estimated at over $100 billion a year.
  Mr. Speaker, this is not just an issue of access. We are going to 
hear about access from the gentleman from Florida (Mr. Keller). He is 
going to talk about the trauma facility in Orlando, Florida, being 
closed down because of this problem. This is not just an issue of high 
cost. This is an issue of the uninsured. As the costs go up because of 
the high cost of litigation, more and more people are pushed out of the 
insured market into the uninsured category. We all say here that we 
care about the uninsured, the people who cannot afford health care, but 
this is impacting them. This is impacting our competitiveness in the 
global marketplace because all these costs of litigation get 
transferred into the costs of health care that get transferred into the 
costs of our products and services as we compete in the global 
marketplace.
  If we pass this bill and if the other body passes it, the President 
has said he would sign it, it is going to allow more people to get 
access to health care, it is going to reduce our costs through the 
Medicare plan, and we may ultimately be able to better afford more 
services through Medicare like prescription drugs. And, yes, it will 
help our businesses and industries to be more competitive in the global 
marketplace.
  This is a good rule, it is a fair rule, and this is an extremely 
important bill. I encourage all my colleagues to vote ``yes.''
  Mr. HASTINGS of Florida. Mr. Speaker, I yield myself 30 seconds.
  In response to my good friend and colleague regarding the fairness 
and openness and the 1 hour of debate, 31 amendments were offered last 
night in the Committee on Rules and my good friend the gentleman from 
New York (Mr. Reynolds) and I were there. Not one, not one, was 
permitted. What is fair about that?
  In response to Dr. Weldon's defensive medicine argument, some people 
claim that billions of dollars are being wasted on so-called defensive 
medicine. Our own Congressional Budget Office has concluded that the 
idea of defensive medicine is uncertain and hypothetical. You can find 
that on page 74 of House Report 108-32.
  Mr. Speaker, I yield such time as he may consume to the gentleman 
from Texas (Mr. Frost), the distinguished ranking member of the 
Committee on Rules.
  (Mr. FROST asked and was given permission to revise and extend his 
remarks.)
  Mr. FROST. I thank the gentleman for yielding me this time.
  Mr. Speaker, we all agree that there is a problem in America's 
medical system, but Republicans are not taking a serious approach to 
this problem. They are just playing politics and risking the rights of 
patients in order to carry water for HMOs and insurance companies. We 
know this, Mr. Speaker, because Republican leaders have brought this 
bill to the floor under a closed rule.
  Now, on this very important subject, let me quote from a statement 
made 9 years ago by the distinguished chairman of the Committee on 
Rules, the gentleman from California (Mr. Dreier), at a time that he 
was in the minority. He said, and I quote, ``I oppose closed rules, Mr. 
Speaker. I believe they are anathema to the concept of deliberative 
democracy.''
  Mr. Speaker, if Republicans wanted to deal with medical malpractice 
in a serious and substantive way, would they be using a process that 
is, as the gentleman from California himself said, anathema to the 
concept of deliberative democracy? I do not think so. And would they be 
preventing the House from voting on Democrats' comprehensive medical 
malpractice reform plan? Certainly not. But that is exactly what 
Republican leaders are doing today. As a result, the only bill made in 
order by this rule today is the Republican one and it is a shocking 
attempt to protect insurance companies while attacking the rights of 
victims.
  Make no mistake, Mr. Speaker, the Republican bill will not reduce 
doctors' premiums, but it will protect HMOs and insurance companies, 
and it will punish patients who suffer from medical mistakes, patients 
like 17-year-old Jesica Santillan, who died because of a tragic medical 
mistake in North Carolina earlier this year. Or patients like the 1-
year-old baby who died in Dallas last August after a surgical error.
  That is right, Mr. Speaker. Instead of reducing malpractice premiums, 
Republicans are reducing victims' rights. Instead of protecting 
patients, they are protecting the profits of HMOs and insurance 
companies. It is absolutely

[[Page H1820]]

outrageous, but that is what you get with this Republican Congress.
  It did not have to be that way, Mr. Speaker. Democrats, led by the 
two most senior Members of the House, the gentleman from Michigan (Mr. 
Dingell) and the gentleman from Michigan (Mr. Conyers), offered a 
comprehensive plan to bring down doctors' insurance rates and protect 
patients. The Democratic plan combines tort reform and insurance 
reform. It cracks down on frivolous lawsuits. And, just as importantly, 
it forces insurance companies to pass on their savings to doctors. 
Without this rate rollback provision, Mr. Speaker, insurance companies 
can just pad their profit margins instead of passing the savings on. 
That is a lesson we learned in Texas when we passed tort reform. So the 
Texas legislature and then-Governor Bush agreed on a law that 
specifically required that insurance companies reduce doctors' 
premiums, and that is all we are trying to do here. But Republican 
leaders decided to protect insurance company profits while they were 
reducing patient protections. So they defeated our amendments in the 
Committee on Rules last night.
  Mr. Speaker, doctors and patients deserve better than this. So I urge 
my colleagues to defeat the previous question. Then we can amend the 
rule to bring up the only comprehensive plan to reform medical 
malpractice, the Democratic substitute. And if Republicans succeed in 
passing this rule, I urge a ``no'' vote on the underlying bill. Do not 
let Republicans sacrifice victims' rights in order to protect HMO 
profits.
  I would make one other point. Last night in the Committee on Rules 
when challenged by the gentleman from Michigan (Mr. Dingell), the 
gentleman from California (Mr. Dreier), the chairman of the committee, 
explained why the committee was not going to grant an open rule, why 
they were going to grant a closed rule. What he said was, ``This is 
payback. This is payback for what you did when you were in the 
majority.''
  Mr. DREIER. Mr. Speaker, will the gentleman yield?
  Mr. FROST. I yield to the gentleman from California.
  Mr. DREIER. I thank my friend for yielding. Would the gentleman state 
the quote again that I said? I did not hear it correctly.
  Mr. FROST. Mr. Speaker, I was sitting next to the gentleman from 
California, and I believe that I heard him say that this was payback.
  Mr. DREIER. I never said anything of the kind.
  Mr. FROST. Mr. Chairman, I was sitting right next to you.
  Mr. DREIER. I never said anything of the kind. I just would like the 
record to show that, Mr. Speaker.
  I thank my friend for yielding.
  Mr. FROST. All I can say is I was sitting next to the gentleman. I 
understand and I know what I heard last night.
  Mr. Speaker, assuming that the Republicans are pursuing some sort of 
payback because they do not like what we did when we were in the 
majority, I would only point out that we rarely granted closed rules, 
and they normally were bills out of the Committee on Ways and Means. 
Bills of this nature, of this controversy, when we were in the 
majority, we permitted the minority to have a substitute on the floor, 
something which they have denied us today.
  Mr. REYNOLDS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I have only served under the distinguished chairmanship 
of Chairman Dreier, but I am always pleased that in each rule that we 
make there is always a recommit. Looking back at history, one of the 
people that I think was a distinguished chairman of the Committee on 
Rules, Joe Moakley, I am not sure he always had a recommit in the 
legislation. I am not sure that former Speaker Tip O'Neill when he was 
a member of the Committee on Rules always voted that there would be a 
recommit. But I do believe that there has been a recommit in here. More 
importantly, I think it is important that this legislation was 
thoroughly vetted in two committees, the Committee on Energy and 
Commerce and the Committee on the Judiciary, and even passed by voice 
vote in the Committee on the Judiciary. Just weeks ago these same 
committees once again took testimony and the bill passed through the 
Committee on Energy and Commerce by voice vote.

                              {time}  1045

  The Committee on Rules last night took testimony for over 2 hours and 
reasonably provided 2 hours of general debate, in addition to the 
standard motion to recommit, and I believe we will have a full hour on 
this rule today.
  Mr. Speaker, I yield 3 minutes to the gentleman from Kentucky (Mr. 
Fletcher). The gentleman, a doctor, is an expert in this legislation.
  Mr. FLETCHER. Mr. Speaker, I will have to say it is rather amazing 
that when the minority is wrong on policy, they focus on process.
  Mr. Speaker, as a family physician, I have always tried to do what is 
best for patients, and as a Member of Congress I still try to do what 
is best for patients in Kentucky and all across America.
  Mr. HOYER. Mr. Speaker, will the gentleman yield on that point?
  Mr. FLETCHER. Not at this time. I have 3 minutes.
  Mr. HOYER. We yielded on our side.
  Mr. FLETCHER. Mr. Speaker, what is best for the patient? I believe 
that unlimited medical liability awards are bad for patients, because 
they cause malpractice insurance prices to climb, resulting in more 
expensive care, fewer doctors, and problems obtaining access to needed 
care.
  H.R. 5, the HEALTH Act of 2003, actually ensures fair compensation 
for everyone. We need to keep in mind that everyone is entitled to full 
compensation for their losses, medical bills and wages under H.R. 5.
  It is not unusual to hear stories of doctors moving from Kentucky to 
Indiana, where they have enacted comprehensive liability reform, to 
take advantage of lower costs of medical liability insurance.
  Passing the HEALTH Act, which reasonably reforms our liability 
system, will hold premiums at a lower, more predictable rate. That will 
ensure patients are not left without their local physician, who may be 
otherwise driven out of their practice. And to say that this bill will 
not reduce frivolous lawsuits and reduce malpractice premiums is truly 
laughable. Lawsuits do not prevent injuries, they do not reduce medical 
errors, but they do create an atmosphere of fear, defensiveness and 
distrust in the doctor-patient relationship.
  In fact, a recent study estimated that defensive medicine cost $163 
per person per year in Kentucky. That means Kentucky spends about $655 
million on unnecessary care due to fear of litigation.
  Let me give you specific examples, too. Blue Grass Orthopedic Group 
in my district has never lost any of the handful of claims filed 
against its eight doctors. Yet their premiums, which were $222,000 last 
year, shot up to $635,000, nearly tripling in a single year. Why? 
Because personal injury lawyers, hoping to hit the jackpot, file 
frivolous lawsuits.
  More than 70 percent of Kentucky physicians say their medical 
liability insurance premiums increased in 2002. Emergency physicians 
saw increases greater than 200 percent, general surgeons and 
orthopedists saw increases between 87 and 122 percent, and 
obstetricians and internists saw increases between 40 and 64 percent. 
Several saw several hundred percent increases in their premiums. In 
other words, this is just unsustainable.
  It is estimated that for every obstetrician that leaves a practice in 
Kentucky, 140 women are left without their physician. That means that 
women during prenatal care will have to drive an extra 30 or 50 minutes 
to see a doctor. That also means during labor if that unborn child is 
in fetal distress, there is an extra 30 minutes of fetal distress, 
which could blankly rob that child of all their hopes and future of 
what they potentially could be.
  As a family physician, I took an oath to do no harm. The only bill 
today that will help physicians keep that oath is one that ensures safe 
and timely access to care through reasonable, comprehensive and 
effective health care liability reform, and that is H.R. 5. I urge my 
colleagues to support this rule and vote yes on H.R. 5.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield myself 10 seconds.
  Mr. Speaker, there is a recent study reported in USA Today of medical 
malpractice insurance that concluded that,

[[Page H1821]]

on average, doctors still spend less on malpractice insurance, 3.2 
percent of their revenue, than on rent. I offer that for the gentleman 
from Kentucky (Mr. Fletcher).
  Mr. Speaker, I yield 3 minutes to my good friend, the gentleman from 
Maryland (Mr. Hoyer), the distinguished Democratic whip.
  Mr. HOYER. Mr. Speaker, I thank the gentleman for yielding.
  I want to say to my friend from Kentucky, who says that we rise to 
focus on process, I tell my friend from Kentucky there is a reason for 
that, because your Committee on Rules does not have the courage to 
allow us to debate substance. It does not have the courage to allow us 
to offer a substitute and amendments to your bill so that we could 
discuss substance. Have courage on your side, that substance is what 
ought to be at risk here. We are prepared to debate it. Allow us to do 
so.
  Mr. Speaker, once again today the Republican leadership is employing 
outrageous tactics that trample the rights of the minority and rig the 
rules of this debate.
  Mr. FLETCHER. Mr. Speaker, will the gentleman yield?
  Mr. HOYER. As long as the gentleman yielded to me.
  Mr. Speaker, these tactics demean the People's House. Hear me. Hear 
me. These tactics demean the People's House, demean democracy, demean 
freedom, and they fly in the face of commitments by Republicans when 
they regained the majority to run an open and deliberative process.
  These comments are on the record. Here is how Gerald Solomon, the 
former Republican Chair of the Committee on Rules, explained it in 
November of 1994 when you were just about to take power. This is a 
quote, on the record:
  ``The guiding principles will be openness and fairness. The Rules 
Committee will no longer rig the procedure to contrive a predetermined 
outcome. From now on,'' the Republicans said, ``the Rules Committee 
will clear the stage for debate and let the House work its will.''
  The year before, Congressman Solomon remarked, ``Every time we deny 
an open amendment process on an important piece of legislation, we are 
disenfranchising the people and their representatives from the 
legislative process.''
  Mr. Speaker, this side of the aisle represents at least 140 million 
people. This side of the aisle represents 140 million Americans, and 
you have shut them up today, and you shut them up last week, and you 
may be considering shutting us up next week. Not 204 or 205 Democrats, 
but 140 million Americans.
  I submit that this is precisely what we are doing today under this 
closed rule, which is what Mr. Solomon said you would not do. But you 
do it this day, and you demean this House.
  I would say to the gentleman from Kentucky (Mr. Fletcher), yes, that 
is why we talk about process, because we want to show why we are not 
serving doctors this day; why in State after State after State that 
have capped recovery premiums have not gone down. Doctors will not be 
served by this legislation you offer, and you will not allow us an 
amendment to do something that will protect doctors, that will protect 
patients, that will protect injured people.
  This is a travesty of democracy, and it is a travesty for people who 
are injured severely by the negligence of others.
  Vote against the previous question, vote against this bill, vote for 
fairness and equity in this House.
  Mr. REYNOLDS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, we are going to continue on the debate of the issue of 
the day, which is medical liability. I must tell you, while I guess it 
is important to listen to some of the process, and half of this debate 
by the leadership of our House is on the process, I am hoping that we 
can continue to hear the debate that was at least opened by myself and 
my good friend from Florida who has a different view.
  I look at it that we need to helm doctors and patients, and to make 
sure we can control the costs of malpractice insurance. I have listened 
to some of the debate on the other side that it is the doctors and 
insurance companies that are at fault.
  It is an important debate. This is a debate that was heard 7 months 
ago in both the Committee on the Judiciary and the Committee on Energy 
and Commerce. The Committee on the Judiciary voted by voice vote to put 
the bill out. Only recently we have had those hearings again in the 
Committee on Energy and Commerce and the Committee on the Judiciary, 
and, in a bipartisan fashion, it was passed by a voice vote there.
  Last night we took 2 hours of testimony. The Committee on Rules 
responded with a 2-hour debate, plus what will be a full hour of the 
resolution, now going forward here on the rule itself.
  I look forward to the debate, I look forward to hearing it, and then 
I look forward to voting up or down on whether we are going to help 
patients or not.
  Mr. Speaker, I yield 2 minutes to the gentlewoman from West Virginia 
(Mrs. Capito).
  Mrs. CAPITO. Mr. Speaker, I would indeed like to debate the issue, I 
would like you all to live in my State of West Virginia over the last 
year. Our Trauma I Medical Center in the State's Capital, Charleston, 
West Virginia, closed. No specialist. It was reopened, but it was 
closed for 2 or 3 months.
  In September of 2002, a young boy who had something lodged in his 
windpipe, his parents had to drive him 4 hours to get a specialist in 
Cincinnati, Ohio. Thank goodness it had a good ending, but it might not 
have.
  In January, a group of Wheeling surgeons left the emergency room to 
illustrate the deep and devastating problem that West Virginia doctors 
are suffering with the high cost of medical liability. And, guess what 
happened? Our State legislature, which is predominantly Democrat, in 
probably the largest way of any State legislature, we have a Democratic 
Governor, they passed and signed the day before yesterday a medical 
liability bill that does in fact have caps on non-economic damages. 
Because, you know what? When your grandmother, when your mother, when 
your husband or wife cannot find medical care at a trauma center, 
cannot find an OB/GYN, when their general practitioner leaves to go to 
California, North Carolina, Georgia, that is a human problem. That is a 
health problem.
  So the answer to this is the legislation that we are going to pass 
today. I proudly voted for it last year. I think it will help not only 
my State of West Virginia, but it will help every State in the Union.
  We cannot retain and recruit physicians in the State of West Virginia 
because of this problem. We have had a brain drain because our older 
physicians are leaving, they are practicing defensive medicine, and 
they are afraid of the lawsuits that are pending in front of them. 
Sixty-three percent of them say they considered moving to another 
State, 41 percent are considering retiring early, and 30 percent are 
considering leaving the practice of medicine altogether.
  Mr. Speaker, this is a devastating problem. Come to West Virginia and 
see. It is a quality of life issue, it is an economic issue.
  Today I join with my colleagues to vote for H.R. 5, and I will be 
extremely happy to see national legislation.
  Mr. HASTINGS of Florida. Mr. Speaker, I am pleased to yield 2\1/4\ 
minutes to my good friend, the gentlewoman from New York (Ms. 
Slaughter), who is an expert in this area, with a Master's of Public 
Health.
  Ms. SLAUGHTER. Mr. Speaker, I thank the gentleman for yielding me 
time.
  Mr. Speaker, this is one of the debates that has gone on for many 
years and it has always been characterized as a debate between 
physicians and lawyers, leaving out one of the major players in all of 
these problems, the insurance industry.
  This health care act is wrongly named. It is the wrong prescription 
for curing any malady in medical malpractice insurance. The proponents 
want to claim jury awards for rising insurance premiums. But a study by 
Americans for Insurance Reform reported that rising insurance premiums 
are not tied to jury awards.
  Let me for a moment talk about how an insurance company meets a 
lawsuit that is filed against it. The money that is asked for in that 
bill is set aside in a separate pot of money as though they

[[Page H1822]]

had lost the suit. Of course, only about one of nine of those cases is 
ever brought to court, but that large pot of money still exists over 
there for the insurance company, on which they pay a very low rate of 
taxes. They should be a major player here.
  Wait until your doctors hear back home that what we have done here 
today, because I am sure it is going to pass, will not do a thing in 
the world about lowering their insurance premiums. There is no mention 
in here that insurance companies of any sort will have to give back 
money to the physicians or to lower their rates. They are probably not 
going to give up anything out of that large pot they have had all of 
these years, and which we have no right, because the Federal Government 
has no oversight over insurance, to see what is there.
  One of the most egregious things in this legislation and this debate 
is we have been told over and over that 5 percent of the physicians in 
the United States are responsible for more than 55 percent of the 
lawsuits. Would you not think that the sensible thing to do would be to 
get rid of that 5 percent? If this law passes, the 5 percent still 
continued to create malpractice, have bad outcomes on their patients. 
The only difference after this bill is passed is that patients will 
have no recourse at all.

                              {time}  1100

  The caps are really extensive. There is no recourse. And in addition, 
one more thing I would say. Not only are the insurance companies 
protected, but also the people who manufacture medical devices, HMOs, 
and pharmaceutical companies. It is very far-reaching and will do 
nothing to lower premiums.
  Mr. REYNOLDS. Mr. Speaker, I yield 2 minutes to the gentleman from 
Florida (Mr. Keller).
  (Mr. KELLER asked and was given permission to revise and extend his 
remarks, and include extraneous material.)
  Mr. KELLER. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  Mr. Speaker, I rise today in strong support of H.R. 5, because there 
is absolutely a medical liability crisis in Florida which will, among 
other things, result in patients in Orlando with severe head injuries 
not having access to a doctor. Let me give one example of the crisis.
  The Orlando Regional Medical Center is a large hospital located in 
the heart of my district in Orlando, Florida. It is home to the only 
level-1 trauma center in the central Florida area. It specializes in 
treating patients with severe head injuries. The trauma center was 
praised last month by the State of Florida as delivering patient care 
that is ``above and beyond'' that of other level-1 trauma centers. I 
personally toured this trauma center, and I can tell my colleagues it 
is a source of pride for many central Floridians.
  Last week, Orlando Regional Medical Center announced that they were 
closing in April 2003 because the neurosurgeons in the Orlando area can 
no longer afford skyrocketing medical liability insurance premiums.
  Now, how bad is the situation? Dr. Jonathan Greenberg, the chairman 
of the Department of Neurosurgery at ORMC, personally told me that the 
malpractice insurance premiums have risen five-fold over the past 2 
years from $55,000 a year to $256,000 a year.
  We do not have to guess what the consequences are when this sort of 
facility is closed down. Just last week, Mrs. Leanne Dyess testified 
before our Committee on the Judiciary. Her husband suffered one of 
these severe head injuries in a car accident. There were no longer any 
neurosurgeons in the area because they could not afford the liability 
insurance. As a result, it took 6 hours to airlift Mr. Dyess to a 
different location. It was too late. Mr. Dyess is now permanently brain 
damaged. He is unable to talk, unable to work, unable to provide for 
his family.
  We must bring common sense back to the health care system so that 
patients with severe head injuries have access to trauma centers. We 
should care about each other more and sue each other less.
  I ask my colleagues to vote ``yes'' on H.R. 5 and the rule. I will 
also include in the Record an article dated March 11, 2003 from Dr. 
Greenberg and published in the Orlando Sentinel.

               [From the Orlando Sentinel, Mar. 11, 2003]

                    Neurosurgeon: Save Trauma Center

                     (By Jonathan Greenberg, M.D.)

       A human tragedy of immense proportions is unfolding in 
     Central Florida, and my neurosurgical colleagues and I have 
     been unable to prevent it.
       Less than two weeks after a state trauma-site review lauded 
     Orlando Regional Medical Center's Level I trauma center for 
     its high level of patient care and dedication ``above and 
     beyond'' that at other Level I centers, the ORMC 
     administration was compelled to inform the state that it will 
     go off-line as an adult Level I trauma center as of April 1 
     because of the lack of neurosurgical coverage.
       Seven neurosurgeons resigned from the ORMC medical staff, 
     citing the physical stress of on-call requirements, medical 
     malpractice-insurance premiums, increased liability exposure 
     in treating trauma patients and the adverse impact that on-
     call coverage has had on their private practices.
       I cannot fault my neurosurgical colleagues for having taken 
     this action. They have complained that they were being 
     charged significantly increased malpractice-insurance 
     premiums--or were going to be denied malpractice insurance 
     altogether--for the privilege of getting up in the middle of 
     the night to take care of critically ill head and spine-
     injured patients.
       Three neurosurgeons have closed their practices and left 
     the community. Trying to replace them has been almost 
     impossible. What sane physician would move to a state known 
     to be in the throes of a ``medical malpractice-insurance 
     crisis,'' where insurance is either unobtainable or 
     exorbitantly priced, and where there is a constant threat of 
     frivolous but nonetheless disruptive lawsuits?
       ORMC has lobbied vigorously for relief; we have 
     demonstrated to increase public awareness and spoken with 
     state representatives.
       For those who denied that there was a ``physician drain'' 
     or a problem with the tort system, who asserted that this was 
     only an insurance-industry, stock-market-cyclical financial 
     problem, who ignored the looming crisis, the end results of 
     denial, deception, apathy and procrastination are clear.
       As of April 1, Central Florida will have lost one of its 
     most precious assets, the ORMC Level I trauma center. There 
     will not be enough neurosurgeons left to fully man the on-
     call schedule.
       We know that in the past many patients survived their 
     injuries because they were brought to ORMC; they would not 
     have survived elsewhere. After April 1, similarly injured 
     patients may not survive. I am profoundly saddened by this 
     prospect.
       It will take more than an act of God to avert this 
     catastrophe. It will take responsible action by the governor, 
     the state Legislature, and county and regional leaders. Band-
     Aid solutions will not save a health-care system that is 
     exsanguinating. ORMC has the only Level I trauma center in 
     the state without sovereign immunity. Relief from predatory 
     lawsuits and unaffordable insurance premiums and adequate 
     compensation for extraordinary medical care will be 
     necessary.

  Mr. HASTINGS of Florida. Mr. Speaker, would the Chair announce the 
remaining time on both sides, please?
  The SPEAKER pro tempore (Mr. Thornberry). The gentleman from Florida 
(Mr. Hastings) has 10\1/4\ minutes remaining; the gentleman from New 
York (Mr. Reynolds) has 10\1/2\ minutes remaining.
  Mr. HASTINGS of Florida. Mr. Speaker, I am pleased and privileged to 
yield 3 minutes to my good friend, the gentleman from Michigan (Mr. 
Dingell), the dean of the House, who I think can speak to both 
substance and process.
  (Mr. DINGELL asked and was given permission to revise and extend his 
remarks.)
  Mr. DINGELL. Mr. Speaker, I say to my colleagues, vote down this 
iniquitous rule. It is unfair. It is demeaning. It strikes at the heart 
of the parliamentary practices that are the proud tradition of this 
body. It also tears at the throat of honorable and open and fair 
debate. It denies every Member, not just Democrats, the right to offer 
amendments to the bill. Mr. Speaker, 31 amendments were requested of 
the Committee on Rules last night; not a one was given. A substitute 
was given.
  The chairman of the committee talks of the need to have a fair and 
open process. Well, we do not have a fair and open process. Therefore, 
vote down the rule, vote down the previous question. It is an outrage, 
and it is inconsistent with the tradition and practices of the House.
  I would point out that in the rules, rule XVI, clause 6 begins, 
``When an amendable proposition is under consideration, a motion to 
amend and a motion to amend that amendment shall be in order.'' It is 
in the rules. The Committee on Rules should read it.
  We are not discussing the substance of the legislation. We hope to 
have a fair chance to do so. We hope to have a

[[Page H1823]]

fair chance to amend the basic proposition before this body. The 
Committee on Rules has not given it to us.
  I went before the Committee last night and I asked, am I wasting my 
time and am I wasting your time by being here? The answer is, I was. I 
was not told that I was, but the simple fact of the matter was the 
decision had already been made. The process had already been carefully 
cooked so that no opportunity to amend the bill is before this body at 
this time.
  We can talk about what it is that is wrong with this legislation and 
how the amendments would improve it. That is really not important. What 
is important is that the basic rights of the Members of this body, the 
basic prerogatives of the institution to perfect legislation before it 
has been denied by the majority, functioning through the organism of 
the Committee on Rules.
  In 14 years as the chairman of the Committee on Commerce, never once 
did I go before the Committee on Rules to ask for anything other than 
an open rule so that all Members might have a fair chance to 
participate in the debate on the legislation and to offer amendments as 
the need would require, no matter how complex or controversial the 
legislation was. That is the way this institution should work.
  This rule demeans this body. It demeans every Member here, and it 
demeans the Committee on Rules and those who have inflicted this 
outrage upon this body.
  I say again, vote this rule down. It is wrong. It is arrogant. It is 
without justification. I note that it comes up on a day when this is 
the last item of business of the week and when this is the last item of 
business that will be done. Let us vote it down, and let us then go 
about the business of conducting the business of the House in a fashion 
which is consistent with the traditions of this great democratic 
institution.
  Mr. REYNOLDS. Mr. Speaker, I yield 3 minutes to the distinguished 
gentleman from California (Mr. Dreier), the chairman of the Committee 
on Rules.
  (Mr. DREIER asked and was given permission to revise and extend his 
remarks.)
  Mr. DREIER. Mr. Speaker, it is a great honor to be a Member of this 
institution, and it is an honor for me to have the opportunity to 
follow my very good friend, the gentleman from Michigan (Mr. Dingell), 
the dean of the House.
  As we have listened to the arguments that have been provided about 
the rights of the minority, I have to say that while the gentleman from 
Michigan (Mr. Dingell) served for 14 years as chairman of the Committee 
on Commerce, I served for 14 years as a member of the minority in this 
institution. When we won the majority in 1994, I felt very strongly 
about something that had existed under the democratic rule in this 
place for 4 uninterrupted decades. I felt strongly about ensuring that 
the minority had the right to come forward with at least an 
opportunity, through an amendment and a motion to recommit, which was 
denied us on many occasions.
  Now, last night when we had the testimony in the Committee on Rules, 
the gentleman from Michigan (Mr. Dingell) told me that he came here in 
1955, and our good friend, the gentleman from Michigan (Mr. Conyers) 
came here in 1965, and they had never known of any instance whatsoever 
when the Democrats had denied the Republican minority the opportunity 
to consider at least an opportunity to amend through a recommittal 
motion.
  I have to say that I have the greatest respect for the gentleman from 
Michigan (Mr. Dingell), my friend; but I have a list right here of in 
the 100th Congress, 16 examples of where this was denied.
  Now, this issue of payback has come up. Well, so is this payback now 
that we are imposing on the minority? Absolutely not. Because when we 
passed our opening day rules package, having served 14 years in the 
minority, I was very sensitive to make sure that we would guarantee the 
minority that right to offer a motion to recommit with an amendment, 
and that is exactly what is going to exist under this process.
  Now, I believe that we should have as open and as fair a process as 
we can, and I stand here continuing to be committed to our goal of 
ensuring that the minority does have as many rights as possible, and I 
will continue to fight in behalf of that, because I believe in the 
Madisonian spirit of minority rights.
  I also know that we have a responsibility to move our agenda. And we 
are doing that, while guaranteeing these minority rights.
  Now, when we opened this process last night, I am very happy that my 
friend, the gentleman from Florida (Mr. Hastings), began by talking 
about the fact that we did meet his request to provide 2 hours. There 
will be a debate. There will be an opportunity for Members to voice 
their concern, regardless of what side of this issue they are on. I 
happen to think that it is very important for us to also recognize that 
the Committee on the Judiciary and the Committee on Energy and Commerce 
both had full markups with the exchange of ideas, and the people who 
have stood up to speak against this rule are people who in fact offered 
amendments through the committee process. The committee process has 
worked very effectively here.
  We have come together with a package which I believe, through both 
committees, can, in fact, have an opportunity to be heard; and I urge 
my colleagues to vote in support of this rule and for the underlying 
legislation.
  Mr. HASTINGS of Florida. Mr. Speaker, I would remind the 
distinguished chairman, my friend, that we did have 31 amendments last 
night; none of them have been allowed to come to the floor.
  Mr. DREIER. Mr. Speaker, I thank the gentleman for reminding me.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentleman from Virginia (Mr. Scott), my very good friend.
  (Mr. SCOTT of Virginia asked and was given permission to revise and 
extend his remarks and include extraneous material.)
  Mr. SCOTT of Virginia. Mr. Speaker, this closed rule does a 
disservice to the legislative process. Medical malpractice is a very 
complicated issue, there are many different provisions, and we cannot 
possibly debate each one with a closed rule. The fact is that one-half 
of the medical malpractice premiums represent \1/2\ of 1 percent of 
health care costs, and those costs have been going up at the same rate 
of health care inflation. California had medical malpractice reform, 
but the rates did not go down until there was insurance reform.
  This bill does nothing to eliminate frivolous lawsuits, but it makes 
the bona fide lawsuits even more difficult to bring. The elimination of 
joint and several liability means that you have to chase each and every 
doctor for each and every portion of their liability. The young Mexican 
girl with the transplant, one would have to prove a separate case 
against each and every company, the transplant company, the hospital, 
and everybody else before she could get anything. She would probably 
use up the whole $250,000 cap before she could get anything.
  The collateral source rule will shift the cost of malpractice onto 
the employer. If one has a self-insured employer, if one of their 
employees gets put in a malpractice-induced coma, the employer will 
have to pay the bill. This bill prohibits subrogation so that the 
employer cannot get the money back; the malpractice insurance company 
will not have to pay that hospital bill.
  Mr. Speaker, we need to debate that and discuss it; but we cannot, 
because it is a closed rule.
  I hereby attach to my statement, the additional dissenting views I 
offered to the Judiciary Committee report on H.R. 5.

                      Additional Dissenting Views

       In addition to the dissenting views, I would add the 
     following:
       1. In addition to the comments on the bill's elimination of 
     joint and several liability, I would add that this new burden 
     on the plaintiff is administratively unfair to the plaintiff. 
     The apportionment of malpractice responsibility is routinely 
     made in the health care field by apportionment of insurance 
     coverage. Health care providers can and do decide in advance 
     who will pay for what coverage. The plaintiff, on the other 
     hand, is not in a position to apportion damages, because the 
     plaintiff often has no idea what happened, much less who was 
     responsible. The entire concept of res ipsa loquitur is based 
     on the fact that some cases are so obviously the result of 
     malpractice that the general burden of proof is eased for 
     such victims. With the elimination of joint and several 
     liability, and without knowing exactly what

[[Page H1824]]

     happened, the plaintiff will have to make a separate case, 
     including establishing a standard of care, violation of that 
     standard and proximate cause for each conceivable participant 
     in his care and always have the possibility of defendants 
     pointing to an ``empty chair'' or an insolvent defendant at 
     the trial. This burden comes with the costs of expert 
     witnesses for each doctor, nurse and hospital even minimally 
     involved in the most egregious and obvious cases. As the 
     dissent mentions, any defendant can always seek contribution 
     without the elimination of joint and several liability.
       2. In addition to the comments in the dissent on the 
     collateral source rule, I would add that there are three 
     interested parties: the plaintiff, the health care insurance 
     company and the defendant. Good arguments can be made for the 
     plaintiff to benefit from the provisions he has made to pay 
     his bills. Some may have saved money over the years, 
     including a medical savings account, and others may have paid 
     for insurance. Those persons who have invested in insurance 
     should be able to benefit from their thrift. If one is not 
     persuaded by that argument, and is offended by the plaintiff 
     ``being paid twice'' for the same bill, then one could 
     reasonably say that the health insurance carrier should be 
     able to get its money back through subrogation, and charge a 
     smaller premium based on the anticipation that some of their 
     claims will not ultimately have to be paid, because a 
     tortfeasor will be responsible. The last person of interest 
     who should benefit from the plaintiff's insurance should be 
     the tortfeasor. In fact the prohibition against subrogation 
     in the bill creates the bizarre situation in which a self-
     insured small business could have an employee in a 
     malpractice induced coma, and have to pay all of the hospital 
     bills, notwithstanding the fact that the negligent doctor is 
     fully insured.
       3. Finally, one of the reasons why the ``average'' 
     malpractice award is increasing is because smaller cases are 
     not brought. The complexity of the cases makes it impossible 
     to hire an attorney if the award is too small to generate a 
     meaningful attorney's fee. This ``average'' will undoubtedly 
     increase if this bill is enacted because of limitations on 
     damages, limitations on attorney's fees, elimination of joint 
     and several liability and elimination of collateral sources. 
     A better measure of the impact malpractice litigation has on 
     the health care system is the fact that all malpractice 
     awards and settlements have been approximately \1/2\ of 1 
     percent of the national health care costs and have been 
     recently increasing at the same rate as the health care costs 
     generally.
     Robert C. Scott.

  Mr. REYNOLDS. Mr. Speaker, I yield 2 minutes to the gentlewoman from 
Ohio (Ms. Pryce), a member of the Committee on Rules and Chair of the 
Republican Conference.
  Ms. PRYCE of Ohio. Mr. Speaker, I thank the gentleman for yielding me 
this time.
  Mr. Speaker, my home State of Ohio is one of a dozen States that is 
facing a real crisis in health care. Simply put, doctors are leaving 
and patients are suffering. One by one, facilities are closing their 
doors, retiring early, and not performing various procedures because, 
simply put, they cannot afford the insurance. The result is a pending 
perfect storm, where all of the converging factors meet to create utter 
and total chaos.
  Among Ohio physicians surveyed last year, 96 percent expressed 
serious concerns about the impact of rising liability insurance. 
Seventy-two percent in high-risk specialties said insurance premiums 
have affected their willingness to perform procedures, and 34 percent 
have admitted that they have to order more tests, perform more 
procedures, and practice defensive medicine just to protect themselves. 
But as a result, health care costs soar. In Ohio alone, there is story 
upon story of doctors retiring early or leaving the State just because 
of liability premiums.
  Take Brian Bachelder, who had to stop practicing obstetrics this year 
because he simply could not afford it. As a result, his patients, many 
of whom had trouble just paying for the gas to get to their appointment 
with him, will now have to travel 50 or 65 miles further for prenatal 
care. Or take Dr. Romeo Diaz, whose patients had to actually chip in 
and raise $40,000 to cover his increased premiums. All of this 
scrimping and saving for a doctor who had not had a malpractice claim 
filed in over 10 years.
  America's health care system is quickly approaching the eye of a 
perfect storm, a world without doctors. They are becoming increasingly 
hard to find in so many places; and even worse, when you find one, they 
often cannot help. Their hands are tied.
  Far too many Americans are unable to find a doctor to deliver a baby, 
to perform a surgery, or to provide trauma care necessary to save a 
loved one's life.
  Mr. Speaker, Congress needs to act today and pass a medical liability 
reform plan that keeps our doctors practicing, alleviates patients' 
suffering, and restores medical justice to this system.

                              {time}  1115

  Mr. HASTINGS of Florida. Mr. Speaker, how much time is remaining on 
both sides?
  The SPEAKER pro tempore (Mr. Thornberry). The gentleman from Florida 
(Mr. Hastings) has 5\3/4\ minutes remaining. The gentleman from New 
York (Mr. Reynolds) has 5\1/2\ minutes remaining.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield 1 minute to my good 
friend, the gentlewoman from Texas (Ms. Jackson-Lee).
  (Ms. JACKSON-LEE of Texas asked and was given permission to revise 
and extend her remarks.)
  Ms. JACKSON-LEE of Texas. Mr. Speaker, Nathaniel is in fact the face 
of the devastation of H.R. 5. In the name of God and country, this rule 
says to Nathaniel, 6 days old, he is brain damaged because physicians 
and nurses failed to diagnose jaundice. In this bill he would be denied 
under the capping of noneconomic damages that are capped. Nathaniel is 
the face of the horror of what happened in the Committee on Rules last 
night. There will be no response to our physician friends and doctor 
friends on the question of reducing premiums because they rejected my 
amendment that said 50 percent of the savings by insurance companies 
should be reinvested into physicians to lower their premiums.
  They know that California did not have those premiums go down until 
California enacted insurance reform. This is an insurance giveaway 
bill. This is not going to bring doctors into rural and urban America.
  Mr. Speaker, this rule should be voted down in the name of Nathaniel, 
now brain damaged. H.R. 5 is a devastation and a disgrace to this baby 
who lost the ability to live a good quality of life.
  Mr. Speaker, I am disgusted by this closed rule and call on my 
colleagues to defeat the rule and the underlying bill. We have a health 
care crisis on our hands. We need to work together in a democratic 
fashion to address it: to improve access to care, to protect patients, 
to ensure that good physicians can afford to continue treating those 
patients, and to decrease frivolous lawsuits. The underlying bill does 
nothing to address any of those issues, and I and many of my colleagues 
came forth last night to present amendments that would have ensured 
that it did. Not a single one of those excellent ideas will be even 
considered today.
  What in the name of God and Country is our Democracy coming to when 
on the Floor of the House of Representatives, there is not a single 
chance to debate and vote on one of many ideas that could save lives 
and rescue our floundering health care system?
  I hate the idea of putting a price tag on a human life, or a value on 
pain and suffering. However, we all know that malpractice premiums are 
outrageously high in some regions, for some specialities of medicine. I 
understand that some physicians are actually going out of business 
because the cost of practicing is too high, and that we run the risk of 
decreasing access to healthcare if we do not find a way to decrease 
malpractice insurance premiums.
  But it would be doubly tragic if we did compromise the ability of 
patients suffering from medical negligence from seeking recourse in our 
courts, and did not achieve any meaningful decrease in malpractice 
premiums. Therefore, I offered an amendment last night that would 
require that all malpractice insurance companies make a reasonable 
estimate each year of the amount of money they save each year through 
the reduction in claims brought about by this Act. Then they would need 
to ensure that at least 50% of those savings be passed down in the form 
of decreased premiums for the doctors they serve.
  I shared this concept with doctors and medical associations down in 
Texas, and they were very enthusiastic, because this amendment would 
ensure that we do what, I am being told, this bill is supposed to do--
lower premiums for doctors.
  Without my provision, this bill could easily end up being nothing 
more than heartbreak for those dealing with loss, and a giant gift to 
insurance companies. Parents who lose a child due to a tragedy like the 
one in North Carolina recently where the wrong heart and lung were 
placed in a young girl--they don't lose any money--they lose a part of 
their souls. We are going to tell them that their child was only worth 
$250,000 in non-economic damages for all of their pain and suffering. 
We are being told that we are going to do this to such devastated 
families, in order to enable our doctors

[[Page H1825]]

to keep treating patients. However, the Rules Committee has decided to 
prevent us from voting on amendments that would ensure that this bill 
helps any doctor at all.
  Without debate and votes, a Democracy is not a Democracy. I will vote 
against this Closed Rule, and encourage my colleagues who care about 
helping patients and good doctors to do the same.
  Mr. REYNOLDS. Mr. Speaker, I yield 2\1/2\ minutes to the gentleman 
from Georgia (Mr. Linder), a distinguished member of the Committee on 
Rules.
  Mr. LINDER. Mr. Speaker, I thank the gentleman for yielding me time.
  Mr. Speaker, I rise in support of the rule and the underlying 
legislation, H.R. 5, the underlying medical malpractice reform bill. 
This rule gives the minority party a motion to recommit with or without 
instructions. This motion to recommit provides the minority with an 
opportunity to amend H.R. 5 as it sees fits, something the House 
Democrats often refused to give Republicans before 1995.
  As a former dentist I understand the necessity for this particular 
form of tort law and how the reality of judicial adventurism is a prime 
cause of rising health care costs and reduced access in our country.
  I absolutely believe that medical malpractice litigation has a 
substantive effect on health care quality and costs.
  In a recent survey of Georgia doctors, 18 percent said they would 
stop providing high risk procedures to limit their liability; 33 
percent of OB-GYNs and 20 percent of family practitioners said they 
will abandon high-risk procedures such as delivering babies. In 
addition, 11 percent of physicians will stop providing emergency room 
services.
  The benefits of capping malpractice damages are staggering. In 
California it is estimated that MICRA has saved under those with high-
risk specialties as much as $42,000 per year, not to mention the $6 
billion per year of savings to patients in California. According to the 
U.S. Department of HHS, limits on noneconomic damages could yield 
taxpayers 25- to $44 billion per year in savings.
  Our founders incorporated explicit protections for citizens in 
criminal trials in the sixth amendment. However, they foresaw the 
potential abuse in civil trials and thus remained explicitly silent on 
the rights of juries to operate in civil cases.
  In Federalist 83 Alexander Hamilton went to great lengths to discuss 
the absence of constitutional protections in civil cases, going so far 
as to claim that he could not ``discern the inseparable connection 
between the existence of liberty and the trial by jury in civil 
cases.''
  According to Hamilton, the genius of the constitution was not only 
its flexibility in handling the changing nature of the American 
judiciary but also its reliance on the legislature to prescribe the 
effective checks on such changes.
  Abuse in our judicial system can be remedied by the implementation 
and power of trials by jury, but a balance must be struck between that 
idea and the notions of common sense and personal responsibility. 
Unfortunately, our current system does not strike that balance.
  I urge, as such, my colleagues to join me in passing this rule and 
the underlying legislation.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield 1 minute to the 
gentleman from Massachusetts (Mr. Delahunt), who has studied this 
problem long-standing as an attorney.
  Mr. DELAHUNT. Mr. Speaker, I thank the gentleman for yielding me 
time.
  This is Linda McDougal, and like Nathaniel and many others she too 
would be a victim of the underlying bill H.R. 5. She received an 
unnecessary double mastectomy after doctors mixed up her results, her 
lab results, and erroneously told her she had breast cancer.
  Under this bill her lifetime of pain and disfigurement would be worth 
$250,000 and not a penny more. I ask my friends, is that fair?
  Well, if my friends have any doubts, I would suggest they ask their 
mother, their sister or their daughter.
  Mr. REYNOLDS. Mr. Speaker, I yield 45 seconds to the gentleman from 
Nevada (Mr. Porter).
  (Mr. PORTER asked and was given permission to revise and extend his 
remarks.)
  Mr. PORTER. Mr. Speaker, I rise in support of the HEALTH Act of 2003. 
This bill will be the first step towards curing the escalating medical 
liability costs.
  The runaway litigation has forced a dozen States into near cardiac 
arrest, including my home State of Nevada. In Nevada medical liability 
costs have skyrocketed, forcing doctors to leave in droves. The trauma 
center in our top hospital had to shut its doors because there were not 
enough doctors to treat the patients. Just about every day you pick up 
the paper and you turn on the TV and there is another story about a 
pregnant woman or an emergency patient going into other States to have 
their babies delivered or emergency care treated. It is just one 
example.
  In Las Vegas, Mr. Speaker, obstetrician Dr. Shelby Wilbourn packed up 
a 12-year practice and moved to Maine, where insurance rates are more 
affordable and doctors appear less likely to be sued.
  Mr. Speaker, in order to remedy this, we must pass this legislation.
  Mr. HASTINGS of Florida. Mr. Speaker, I would say to the gentleman 
from Nevada (Mr. Porter), the gentlewoman from Nevada (Ms. Berkley), 
who is married to a physician, does not find that H.R. 5 is going to 
remedy her husband's problem.
  Mr. Speaker, I yield 1 minute to the distinguished gentlewoman from 
California (Mrs. Capps), who is a registered nurse and has seen what we 
are talking about.
  Mrs. CAPPS. Mr. Speaker, I rise in opposition to the rule and the 
underlying bill.
  We should not be capping the awards for pain and suffering that an 
injured patient receives when they have been harmed by their doctor. 
This puts the burden of rising insurance rates onto the innocent 
patient rather than the insurance company.
  Mr. Speaker, I offered an amendment to the Committee on Rules which 
was not made in order. My amendment would set caps in the bill of 
$250,000 or the total compensation package of the CEO of the insurance 
company representing the doctor in the case, whichever is highest.
  It is not fair for insurance companies to pay their executives 
millions of dollars, give them bonuses, increase their pay when they 
are trying to deprive victims of their rightful compensation. In these 
days of Enron and MCI WorldCom, I believe that Congress should be 
siding with injured patients over corporate executives.
  The Nation's largest medical malpractice insurance company pays their 
CEO $9.7 million, but even so they apparently cannot keep paying for 
the pain and suffering of patients their clients have injured and so 
they keep raising their rates. You have to wonder about priorities.
  This is about Nathaniel and Linda. This amendment that I propose 
promotes corporate responsibility. It is a more fair approach, and I 
urge my colleagues to defeat this rule and the underlying bill.
  Mr. REYNOLDS. Mr. Speaker, I yield 1 minute to the gentleman from 
Pennsylvania (Mr. Greenwood), who is an expert on the Committee on 
Energy and Commerce on this issue.
  Mr. GREENWOOD. Mr. Speaker, I thank the gentleman for yielding me 
time.
  The gentlewoman from Texas (Ms. Jackson-Lee) showed me a picture of 
Nathaniel, a young boy tragically brain damaged. I want my colleagues 
to understand that this bill of ours is modeled after California law. 
And in California law just last May under the same kind of law, a 
little boy who was brain damaged at a very young age because of 
malpractice was awarded $43.5 million. And our bill would do nothing to 
prevent this young man from getting what they need, and that is 
probably a lifetime of round-the-clock medical care, a lifetime of lost 
wages.
  All that would be recoverable in full, as it should be, and on top of 
that at least a quarter of a million dollars in pain and suffering; and 
if the State from which the child comes wanted to, that State could 
raise that level to whatever it wants. We have a flexible cap. This is 
a question of balance. This is a question of balance. We have to figure 
out how do we properly pay for medical liability claims in a reasoned 
way that still allows us to retain our doctors and hospitals.

[[Page H1826]]

  Mr. HASTINGS of Florida. Mr. Speaker, I yield 1 minute to the 
gentlewoman from Nevada (Ms. Berkley), my friend, who is an attorney 
married to a physician, who has studied this problem actively and 
carefully over a period of time, coming from a State with dramatic 
problems.
  (Ms. BERKLEY asked and was given permission to revise and extend her 
remarks.)
  Ms. BERKLEY. Mr. Speaker, I fear we are doing a terrible disservice 
to our Nation's physicians and the patients who depend on them. We are 
deceiving them by passing a bill that does not ensure that doctors will 
actually benefit from these caps.
  As a representative of southern Nevada I am all too familiar with the 
medical liability issue. Nevada has faced a serious medical malpractice 
crisis for years. Doctors cannot afford insurance premiums and they are 
threatening to leave the State. Some have and some are refusing to 
accept new patients.
  In August of 2002, Nevada passed a carefully balanced tort reform 
bill which limited noneconomic damages to $350,000 and allowed for 
judicial discretion in particularly egregious cases. Nevada passed 
caps. But the medical insurance companies have refused and have failed 
to reduce their premiums.
  This Congress cannot for a minute pretend that we have addressed the 
real problem of skyrocketing insurance rates if we limit our 
prescription to liability caps. We must also provide doctors with 
insurance reforms as well.
  Medical liability reform is worthless if we ignore all of the 
evidence demonstrating that the current crisis is due more to insurance 
company miscues than liability claims. We must combine them both and I 
urge you to reject this rule.
  Mr. Speaker, I rise in opposition to the rule.
  As a Representative of southern Nevada, I am all too familiar with 
this medical liability issue. Nevada has faced a serious medical 
malpractice crisis for the last year. Doctors cannot afford insurance 
premiums and are threatening to leave the State. Some have or are 
refusing to accept new patients.
  I convened discussion groups of doctors and lawyers at my home to try 
to understand the medical malpractice issue, and it's a regular 
conversation in my own home as my husband and I, a doctor and lawyer, 
have searched for effective solutions to this crisis.
  Nevada's problem is not one of obscene awards and lawsuits, but of 
poor calculations and bad decisions on the part of insurers over the 
past couple of decades.
  Nevada's problem is the result of artificially inflated profits, over 
saturation and price slashing by the insurance company and when Nevada 
was no longer profitable, St. Paul Insurance Co. withdrew from the 
market. When that happened, 60% of Nevada's doctors lost their 
insurance carrier and the remaining medical malpractice insurance 
companies raised their rates to unconscionable extremes.
  In August of 2002, Nevada passed a carefully balanced tort reform 
bill which limited non-economic damages to $350,000 and allowed for 
judicial discretion in particularly egregious cases.
  Nevada passed caps, but the medical insurance companies have refused 
and have failed to reduce their premiums.
  The evidence demonstrates that judgements are not the full, or even a 
large measure of the problem. And therefore caps will have a very 
limited effect on solving this problem.
  This Congress cannot--for a minute--pretend that we have addressed 
the very real problem of skyrocketing insurance rates if we limit our 
prescription to liability caps. We must also provide doctors with 
insurance reforms as well.
  Medical liability reform is worthless if we ignore all the evidence 
demonstrating that the current crisis is due more to insurance company 
miscues than to liability claims.
  It is fundamentally unfair and bad public policy to limit jury awards 
without directly addressing reform of the insurance industry. If this 
Congress is going to pass tort reform, it should be accompanied by 
insurance reform so that insurance companies will pass along the 
savings, and doctors become the direct beneficiaries of cap 
limitations.
  Anything less will fail to solve the malpractice crisis in my State 
and in this Nation.
  I urge my colleagues to vote against this Rule. We are doing a 
terrible disservice to our Nation's physicians and to the patients that 
depend on them. We are deceiving them by passing a bill that does not 
insure that the doctors will actually benefit from caps.
  Mr. REYNOLDS. Mr. Speaker, I reserve the balance of my time.
  The SPEAKER pro tempore. The gentleman from New York has 1\1/4\ 
minutes remaining. The gentleman from Florida (Mr. Hastings) has 2 
minutes remaining.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield 1 minute to the 
gentleman from Texas (Mr. Edwards) and then I will be prepared to 
close.
  Mr. EDWARDS. Mr. Speaker, I am deeply disappointed that the 
Republican House leadership refused last night to even let this House 
consider my amendment, a reasonable amendment, to exclude the $250,000 
caps only in cases where someone is guilty of gross negligence.
  I support cracking down on frivolous lawsuits and I even favor 
punishing attorneys who file them. But under the guise of stopping 
frivolous lawsuits, it is wrong for the Republican leadership to 
protect those guilty of gross negligence even when the consequence is 
the loss of a child.
  Jeanella Aranda was a 1-year-old baby. Last August Jeanella died 
needlessly in Dallas, Texas, because the transplant liver team did not 
check the fact that the father's liver and blood type were not 
compatible. Had they checked they have would have found out little 
Jeanella's mother could have donated part of her liver and Jeanella 
would most likely be alive today.
  Mr. Speaker, I hope every Member of this House will ask his or 
herself this question before voting on this awful unfair rule: Had 
Jeanella Aranda been your child, would you think it would be fair for 
politicians in Washington to decide how to hold responsible those 
involved in her death?
  Mr. REYNOLDS. Mr. Speaker, I yield 30 seconds to the gentleman from 
California (Mr. Cox).
  Mr. COX. Mr. Speaker, everyone in this body knows why pregnant 
mothers cannot find doctors to deliver their babies, why emergency room 
and trama centers are closing and why physicians are leaving their 
practices. The health care liability crisis has been worsening every 
year since 1993, when I first introduced this legislation that we are 
considering today.
  The national median malpractice awards has been increasing 43 percent 
a year. It is unsustainable. Today the average physician faces a new 
lawsuit every year. The opponents of this legislation are convinced 
that the best place to make split second medical decisions is in the 
courtroom. But this bill is about getting better health care in America 
for doctors and patients and all of the people who rely upon this 
system. It is high time for medical justice and high time to enact this 
legislation.

                              {time}  1130

  Mr. HASTINGS of Florida. Mr. Speaker, I yield myself the remaining 
time.
  Mr. Speaker, if the previous question is defeated, I will offer an 
amendment to the rule. My amendment will allow the House to consider 
the Conyers-Dingell substitute to the medical malpractice bill. My 
amendment will give Members an opportunity to vote on this substitute 
which, unlike the majority, takes a comprehensive approach to rising 
medical malpractice insurance premiums. It takes steps to weed out 
frivolous lawsuits. It requires insurance companies to pass their 
savings on to health care providers, and it provides targeted 
assistance to the physicians and communities who need it most.
  Let me make it clear that a ``no'' vote on the previous question will 
not stop consideration of this bill. A ``no'' vote will allow the House 
to consider and get a vote on the Conyers-Dingell substitute. However, 
a ``yes'' vote on the previous question will shut out any opportunity 
for a vote on the substitute. I urge a ``no'' vote on the previous 
question.
  Mr. Speaker, I ask unanimous consent that the text of the amendment 
and a description be printed in the Record immediately prior to the 
vote on the previous question, on which I urge a ``no'' vote on the 
base rule.
  The SPEAKER pro tempore (Mr. Thornberry). Is there objection to the 
request of the gentleman from Florida?
  There was no objection.
  The SPEAKER pro tempore. The time of the gentleman from Florida has 
expired.
  Mr. REYNOLDS. Mr. Speaker, I yield myself the remaining time.
  I hope my colleagues have had the opportunity to read the heart-
wrenching testimony presented by Leanne

[[Page H1827]]

Dyess earlier this month before the Committee on the Judiciary. I hope 
their compassion will allow them to consider how it would feel if a 
similar tragedy befell someone they love simply because doctors had 
been pushed out of the area; and I hope they can recognize that, today, 
we have the opportunity to prevent such tragedies from happening to 
others.
  The HEALTH Act is about patients getting the best possible care they 
can when and where they need it. Dollar signs do not cure people; 
doctors do. Let us make sure doctors and other providers all across the 
country remain open for business.
  I urge a ``yes'' vote on the rule and the underlying legislation. A 
``yes'' vote is a vote for patients.
  Mr. CONYERS. Mr. Speaker, there is one word that best describes this 
closed rule: cowardly. This is a Republican leadership that fears a 
real debate on this cold hearted proposal that would rob victims of 
medical malpractice. They fear that too many of their own Members would 
vote for a democratic bill because it makes sense and would address the 
problem.
  They have decided to dodge a clean vote on a real bill and bury real 
debate in procedural doubletalk. They have decided to let their Members 
hide behind parliamentary tricks.
  The Republican leadership has shredded any semblance of fairness or 
open debate. Just last year, for the first time since 1910, this 
Republican leadership denied the Minority party a motion to recommit. 
Today, the two most senior members of the House of Representatives, who 
are also the two Ranking Democrats on the Committees of jurisdiction, 
are being denied the opportunity to offer the amendment of their 
choosing.
  The Republican leadership's bill doesn't solve the problem of medical 
malpractice insurance rates skyrocketing. It has no insurance reform at 
all. Doctors who are being price gouged by insurance companies will not 
see one cent of savings from this bill.
  The simple fact is that draconian caps on damages do not reduce 
insurance premiums. In a comparison of states that enacted severe tort 
restrictions in the mid-1980s and those that resisted enacting any tort 
reform, no correlation was found between tort reform and insurance 
rates.
  Our bill takes away the antitrust exemption for medical malpractice 
insurance providers that has allowed those providers to collude to jack 
up rates for doctors.
  The Republican leadership's bill does nothing about the deadly 
problem of medical malpractice that costs victims literally their life 
and limb. Between 44,000 and 98,000 people die each year because of 
medical negligence in hospitals and the Republican answer is to take 
away the rights of surviving family members and accountability for bad 
apple health care providers.
  H.R. 5 does nothing about the fact that 5% of all doctors are 
responsible for 54% of malpractice claims paid. H.R. 5 does nothing to 
solve the problem that medical malpractice is the fifth leading cause 
of death in the country.
  Our bill preserves accountability in the health care system.
  The Republican leadership's bill does nothing about frivolous 
lawsuits, only hurts victims. All this bill does is take away 
compensation from the most seriously injured plaintiffs. These are the 
victims who have a case that has so much merit that a jury of their 
peers decides they deserve more than $250,000 in non-economic damages.
  Our bill requires an attorney to file a certificate of merit that an 
action is not frivolous and, if that certificate is false, that 
attorney can be disbarred.
  The Republican bill takes a chain saw to the health care system 
instead of a scalpel. It is no wonder they fear a fair and honest 
debate and a clean vote.
  I urge Members to:
  (1) Vote ``no'' on the Previous Question so that we can make in order 
a vote on Conyers-Dingell and other worthy Democratic amendments.
  (2) If we are not successful in defeating the previous question, vote 
``no'' on this one sided, anti-democratic rule.
  The material previously referred to by Mr. Hastings of Florida is as 
follows:

 Previous Question for H. Res. 139--Medical Malpractice: H.R. 5--Help 
 Efficient Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2003

       In the resolution strike ``and (2)'' and insert the 
     following:
       ``(2) an amendment in the nature of a substitute consisting 
     of the text of H.R. 1219 if offered by Representative Conyers 
     or a designee, which shall be in order without intervention 
     of any point of order, shall be considered as read, and shall 
     be separately debatable for 60 minutes equally divided and 
     controlled by the proponent and an opponent; and (3)''

    Conyers/Dingell Democratic Substitute--H.R. 1219, ``The Medical 
             Malpractice and Insurance Reform Act of 2003''


                      section-by-section analysis

       Scope. The legislation narrowly defines ``medical 
     malpractice action'' to cover ``licensed physicians and 
     health professionals'' for only cases involving medical 
     malpractice. These definitions are intended to include 
     doctors, hospitals, nurses, and other health professionals 
     who pay medical malpractice insurance premiums. See, sec. 
     107(8).
     Title I--Reducing frivolous lawsuits
       Sec. 101.--Statute of Limitations. This section limits the 
     amount of time during which a patient can file a medical 
     malpractice action to the later of three years from the date 
     of injury or three years from the date the patient discovers 
     (or through the use of reasonable diligence should have 
     discovered) the injury. Children under the age of 18 have the 
     later of three years from their eighteenth birthday or three 
     years from the date the patient discovers (or through the use 
     of reasonable diligence should have discovered) the injury.
       Sec. 102.--Health Care Specialist Affidavit. This section 
     requires an affidavit by a qualified specialist before any 
     medical malpractice action may be filed. A ``Qualified 
     Specialist'' is a health care professional with knowledge of 
     the relevant facts of the case, expertise in the specific 
     area of practice, and board certification in a specialty 
     relating to the area of practice.
       Sec. 103.--Mandatory Sanctions for Frivolous Actions and 
     Pleadings. This section requires all plaintiff attorneys who 
     file a medical malpractice action to certify that the case is 
     meritorious. Attorneys who erroneously file such a 
     certificate are subject to strict civil penalties. For first 
     time violators, the court shall require the attorney to pay 
     costs and attorneys fees or administer other appropriate 
     sanctions. For second time violators, the court shall also 
     require the attorney to pay a monetary fine. For third time 
     violators, the court shall also refer the attorney to the 
     appropriate State bar association for disciplinary 
     proceedings.
       Sec. 104.--Mandatory Mediation. This section establishes an 
     alternative dispute resolution (ADR) system for medical 
     malpractice cases. Participation in mediation shall be in 
     lieu of any other ADR method required by law or by 
     contractual arrangements by the parties. A similar approach 
     is recommended by the Committee for Economic Development 
     (CED), which suggests that defendants make and victims accept 
     ``early offers.'' The effect of the ``early offer'' program, 
     according to the CED, is that defendants will reduce the 
     likelihood of incurring litigation costs, and victims would 
     obtain fair compensation without the delay, expense or trauma 
     of litigation.
       Sec. 105.--Punitive Damages. This section limits the 
     circumstances under which a claimant can seek punitive 
     damages in a medical malpractice action. It also allocates 50 
     percent of any punitive damages that are awarded to a Patient 
     Safety Fund managed by HHS. HHS will administer the 
     Patient Safety Fund through the Agency for Healthcare 
     Research and Quality. The Secretary will promulgate 
     regulations that will establish programs and procedures to 
     carry out this objective. See also, Sec. 221-223.
       Sec. 106.--Reduction in Premiums. This section requires 
     medical malpractice insurance companies to annually project 
     the savings that will result from Title II of the bill. 
     Insurance companies must then develop and implement a plan to 
     annually dedicate at least 50 percent of those savings to 
     reduce the insurance premiums that medical professionals pay. 
     Insurance companies must report these activities to HHS 
     annually. The section provides for civil penalties for the 
     non-compliance of insurance companies.
     Title II--Medical malpractice insurance reform
       Sec. 201.--Prohibition on Anti-competitive Activities by 
     Medical Malpractice Insurers. This section would repeal 
     McCarran-Ferguson Act to ensure that insurers do not engage 
     in price fixing. The Act, enacted in 1945, exempts all anti-
     competitive insurance industry practices, except boycotts, 
     from the Federal antitrust laws. Over the years, uneven 
     oversight of the insurance industry by the States, coupled 
     with no possibility of Federal antitrust enforcement, have 
     created an environment that fosters a wide range of anti-
     competitive practices.
       Sec. 202.--Medical Malpractice Insurance Price Comparison. 
     This section creates an internet site at which health care 
     providers could obtain the price charged for the type of 
     coverage the provider seeks from any malpractice insurer 
     licensed in the doctor's state. This section specifies the 
     availability of online forms and that all information will 
     remain confidential.
     Title III--Enhancing patient access to care through direct 
         assistance
       Sec. 301.--Grants and Contracts Regarding Health Provider 
     Shortages. This section authorizes the Secretary of Health 
     and Human Services (HHS) to award grants or contracts through 
     the Health Resources and Services Administration (HRSA) to 
     geographic areas that have a shortage of one or more types of 
     health care providers as a result of dramatic increases in 
     malpractice insurance premiums.
       Sec. 302.--Health Professional Assignments to Trauma 
     Centers. This section amends the Public Health Service Act to 
     authorize the Secretary to send physicians from the National 
     Health Service Corps to trauma centers that are in danger of 
     closing (or losing

[[Page H1828]]

     their trauma center status) due to dramatic increases in 
     malpractice premiums.
     Title IV--Independent advisory commission on medical 
         malpractice insurance
       Sec. 401-402.--Independent Advisory Commission on Medical 
     Malpractice Insurance. This section establishes the national 
     Independent Advisory Commission on Medical Malpractice 
     Insurance. The Commission must evaluate the causes and scope 
     of the recent and dramatic increases in medical malpractice 
     insurance premiums, formulate additional proposals to reduce 
     those premiums, and make recommendations to avoid any such 
     increases in the future. In formulating its proposals, the 
     Commission must, at a minimum, consider a variety of 
     enumerated factors.
       Sec. 403.--Report. This section requires the Commission to 
     file an initial report with Congress within 180 days of 
     enactment and to file annual reports until the Commission 
     terminates.
       Sec. 404.--Membership. This section specifically 
     establishes the number and type of commissioners that the 
     Comptroller General of the United States must appoint to the 
     Commission. Generally, the membership of the Commission will 
     include individuals with national recognition for their 
     expertise in health finance and economics, actuarial science, 
     medical malpractice insurance, insurance regulation, health 
     care law, health care policy, health care access, allopathic 
     and osteopathic physicians, other providers of health care 
     services, patient advocacy, and other related fields, who 
     provide a mix of different professionals, broad geographic 
     representations, and a balance between urban and rural 
     representatives.
       Sec. 407.--Authorization of Appropriations. This section 
     authorizes that such sums be appropriated to the Commission 
     for five fiscal years.
       (Prepared by the Democratic staffs of the Committee on the 
     Judiciary and the Committee on Energy and Commerce.)

  Mr. REYNOLDS. Mr. Speaker, I yield back the balance of my time, and I 
move the previous question on the resolution.
  The SPEAKER pro tempore. The question is on ordering the previous 
question.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. HASTINGS of Florida. Mr. Speaker, I object to the vote on the 
ground that a quorum is not present and make the point of order that a 
quorum is not present.
  The SPEAKER pro tempore. Evidently a quorum is not present.
  The Sergeant at Arms will notify absent Members.
  Pursuant to clause 9 of rule XX, the Chair will reduce to 5 minutes 
the minimum time for electronic voting, if ordered, on the question of 
adoption of the resolution.
  The vote was taken by electronic device, and there were--yeas 225, 
nays 201, not voting 8, as follows:

                             [Roll No. 61]

                               YEAS--225

     Aderholt
     Akin
     Bachus
     Baker
     Ballenger
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Bereuter
     Biggert
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burns
     Burr
     Burton (IN)
     Buyer
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Carter
     Castle
     Chabot
     Chocola
     Coble
     Cole
     Collins
     Cox
     Crane
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     DeMint
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Dreier
     Duncan
     Dunn
     Ehlers
     Emerson
     English
     Everett
     Feeney
     Ferguson
     Flake
     Fletcher
     Foley
     Forbes
     Fossella
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gillmor
     Gingrey
     Goode
     Goodlatte
     Goss
     Granger
     Graves
     Green (WI)
     Greenwood
     Gutknecht
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Hostettler
     Houghton
     Hulshof
     Hunter
     Isakson
     Issa
     Istook
     Janklow
     Jenkins
     Johnson (CT)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     LaHood
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Manzullo
     McCotter
     McCrery
     McHugh
     McInnis
     McKeon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Musgrave
     Myrick
     Nethercutt
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Ose
     Otter
     Oxley
     Paul
     Pearce
     Pence
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Porter
     Portman
     Pryce (OH)
     Putnam
     Quinn
     Radanovich
     Ramstad
     Regula
     Rehberg
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schrock
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Sullivan
     Sweeney
     Tancredo
     Tauzin
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Toomey
     Turner (OH)
     Upton
     Vitter
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                               NAYS--201

     Abercrombie
     Ackerman
     Alexander
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Ballance
     Becerra
     Bell
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boswell
     Boucher
     Boyd
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Capps
     Capuano
     Cardin
     Cardoza
     Carson (IN)
     Carson (OK)
     Case
     Clay
     Clyburn
     Conyers
     Cooper
     Costello
     Cramer
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     Davis (TN)
     DeFazio
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Doggett
     Dooley (CA)
     Doyle
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Ford
     Frank (MA)
     Frost
     Gonzalez
     Gordon
     Green (TX)
     Grijalva
     Gutierrez
     Hall
     Harman
     Hastings (FL)
     Hill
     Hinchey
     Hinojosa
     Hoeffel
     Holden
     Holt
     Honda
     Hooley (OR)
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     John
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind
     Kleczka
     Kucinich
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lofgren
     Lowey
     Lynch
     Majette
     Maloney
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McIntyre
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Mollohan
     Moore
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Ryan (OH)
     Sabo
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Sandlin
     Schakowsky
     Schiff
     Scott (GA)
     Scott (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Solis
     Spratt
     Stark
     Stenholm
     Strickland
     Stupak
     Tanner
     Tauscher
     Taylor (MS)
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Turner (TX)
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                             NOT VOTING--8

     Combest
     DeGette
     Gephardt
     Gilchrest
     Hyde
     Johnson (IL)
     Rush
     Snyder


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mr. Thornberry) (during the vote). Members 
have 2 minutes to record their votes.

                              {time}  1154

  Ms. WATSON, Messrs. SANDLIN, MATSUI, HINOJOSA, SHERMAN, KUCINICH, 
Mrs. JONES of Ohio, Messrs. RUPPERSBERGER, BALLANCE, DEUTSCH, OWENS, 
Ms. MAJETTE, and Mr. DAVIS of Florida changed their vote from ``yea'' 
to ``nay.''
  Mr. PETRI and Mr. PAUL changed their vote from ``nay'' to ``yea.''
  So the previous question was ordered.
  The result of the vote was announced as above recorded.
  The SPEAKER pro tempore. The question is on the resolution.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. HASTINGS of Florida. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. This is a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 225, 
noes 201, not voting 8, as follows:

                             [Roll No. 62]

                               AYES--225

     Aderholt
     Akin
     Bachus
     Baker
     Ballenger
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Bereuter
     Biggert
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner

[[Page H1829]]


     Bonilla
     Bonner
     Bono
     Boozman
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burns
     Burr
     Burton (IN)
     Buyer
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Carter
     Castle
     Chabot
     Chocola
     Coble
     Cole
     Collins
     Cox
     Crane
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     DeMint
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Dreier
     Duncan
     Dunn
     Ehlers
     Emerson
     English
     Everett
     Feeney
     Ferguson
     Flake
     Fletcher
     Foley
     Forbes
     Fossella
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gillmor
     Gingrey
     Goode
     Goodlatte
     Goss
     Granger
     Graves
     Green (WI)
     Greenwood
     Gutknecht
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Hostettler
     Houghton
     Hulshof
     Hunter
     Isakson
     Issa
     Istook
     Janklow
     Jenkins
     Johnson (CT)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     LaHood
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Manzullo
     McCotter
     McCrery
     McHugh
     McInnis
     McKeon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Musgrave
     Myrick
     Nethercutt
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Ose
     Otter
     Oxley
     Paul
     Pearce
     Pence
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Porter
     Portman
     Pryce (OH)
     Putnam
     Quinn
     Radanovich
     Ramstad
     Regula
     Rehberg
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryan (WI)
     Ryun (KS)
     Saxton
     Schrock
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Sullivan
     Sweeney
     Tancredo
     Tauzin
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Toomey
     Turner (OH)
     Upton
     Vitter
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                               NOES--201

     Abercrombie
     Ackerman
     Alexander
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Ballance
     Becerra
     Bell
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boswell
     Boucher
     Boyd
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Capps
     Capuano
     Cardin
     Cardoza
     Carson (IN)
     Carson (OK)
     Case
     Clay
     Clyburn
     Conyers
     Cooper
     Costello
     Cramer
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     Davis (TN)
     DeFazio
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Doggett
     Dooley (CA)
     Doyle
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Ford
     Frank (MA)
     Frost
     Gonzalez
     Gordon
     Green (TX)
     Grijalva
     Gutierrez
     Hall
     Harman
     Hastings (FL)
     Hill
     Hinchey
     Hinojosa
     Hoeffel
     Holden
     Holt
     Honda
     Hooley (OR)
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     John
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind
     Kleczka
     Kucinich
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lofgren
     Lowey
     Lynch
     Majette
     Maloney
     Markey
     Marshall
     Matheson
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Mollohan
     Moore
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Peterson (MN)
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Rodriguez
     Ross
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Sandlin
     Schakowsky
     Schiff
     Scott (GA)
     Scott (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Solis
     Spratt
     Stark
     Stenholm
     Strickland
     Stupak
     Tanner
     Tauscher
     Taylor (MS)
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Turner (TX)
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                             NOT VOTING--8

     Combest
     DeGette
     Gephardt
     Gilchrest
     Hyde
     Johnson (IL)
     McIntyre
     Snyder


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore. (Mr. Thornberry) (during the vote). Members 
are advised 2 minutes remain in this vote.

                              {time}  1207

  So the resolution was agreed to.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.

                          ____________________