[Congressional Record Volume 149, Number 41 (Thursday, March 13, 2003)]
[House]
[Pages H1829-H1871]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




HELP EFFICIENT, ACCESSIBLE, LOW-COST TIMELY HEALTHCARE (HEALTH) ACT OF 
                                  2003

  Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 139, I 
call up 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, 
and ask for its immediate consideration.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore (Mr. Simpson). Pursuant to House Resolution 
139, the bill is considered read for amendment.
  The text of H.R. 5 is as follows:

                                 H.R. 5

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Help Efficient, Accessible, 
     Low-Cost, Timely Healthcare (HEALTH) Act of 2003''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--
       (1) Effect on health care access and costs.--Congress finds 
     that our current civil justice system is adversely affecting 
     patient access to health care services, better patient care, 
     and cost-efficient health care, in that the health care 
     liability system is a costly and ineffective mechanism for 
     resolving claims of health care liability and compensating 
     injured patients, and is a deterrent to the sharing of 
     information among health care professionals which impedes 
     efforts to improve patient safety and quality of care.
       (2) Effect on interstate commerce.--Congress finds that the 
     health care and insurance industries are industries affecting 
     interstate commerce and the health care liability litigation 
     systems existing throughout the United States are activities 
     that affect interstate commerce by contributing to the high 
     costs of health care and premiums for health care liability 
     insurance purchased by health care system providers.
       (3) Effect on federal spending.--Congress finds that the 
     health care liability litigation systems existing throughout 
     the United States have a significant effect on the amount, 
     distribution, and use of Federal funds because of--
       (A) the large number of individuals who receive health care 
     benefits under programs operated or financed by the Federal 
     Government;
       (B) the large number of individuals who benefit because of 
     the exclusion from Federal taxes of the amounts spent to 
     provide them with health insurance benefits; and
       (C) the large number of health care providers who provide 
     items or services for which the Federal Government makes 
     payments.
       (b) Purpose.--It is the purpose of this Act to implement 
     reasonable, comprehensive, and effective health care 
     liability reforms designed to--
       (1) improve the availability of health care services in 
     cases in which health care liability actions have been shown 
     to be a factor in the decreased availability of services;
       (2) reduce the incidence of ``defensive medicine'' and 
     lower the cost of health care liability insurance, all of 
     which contribute to the escalation of health care costs;
       (3) ensure that persons with meritorious health care injury 
     claims receive fair and adequate compensation, including 
     reasonable noneconomic damages;
       (4) improve the fairness and cost-effectiveness of our 
     current health care liability system to resolve disputes 
     over, and provide compensation for, health care liability by 
     reducing uncertainty in the amount of compensation provided 
     to injured individuals;
       (5) provide an increased sharing of information in the 
     health care system which will reduce unintended injury and 
     improve patient care.

     SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

       The time for the commencement of a health care lawsuit 
     shall be 3 years after the date of manifestation of injury or 
     1 year after the claimant discovers, or through the use of 
     reasonable diligence should have discovered, the injury, 
     whichever occurs first. In no event shall the time for 
     commencement of a health care lawsuit exceed 3 years after 
     the date of manifestation of injury unless tolled for any of 
     the following:

[[Page H1830]]

       (1) Upon proof of fraud;
       (2) Intentional concealment; or
       (3) The presence of a foreign body, which has no 
     therapeutic or diagnostic purpose or effect, in the person of 
     the injured person.

     Actions by a minor shall be commenced within 3 years from the 
     date of the alleged manifestation of injury except that 
     actions by a minor under the full age of 6 years shall be 
     commenced within 3 years of manifestation of injury or prior 
     to the minor's 8th birthday, whichever provides a longer 
     period. Such time limitation shall be tolled for minors for 
     any period during which a parent or guardian and a health 
     care provider or health care organization have committed 
     fraud or collusion in the failure to bring an action on 
     behalf of the injured minor.

     SEC. 4. COMPENSATING PATIENT INJURY.

       (a) Unlimited Amount of Damages for Actual Economic Losses 
     in Health Care Lawsuits.--In any health care lawsuit, the 
     full amount of a claimant's economic loss may be fully 
     recovered without limitation.
       (b) Additional Noneconomic Damages.--In any health care 
     lawsuit, the amount of noneconomic damages recovered may be 
     as much as $250,000, regardless of the number of parties 
     against whom the action is brought or the number of separate 
     claims or actions brought with respect to the same 
     occurrence.
       (c) No Discount of Award for Noneconomic Damages.--In any 
     health care lawsuit, an award for future noneconomic damages 
     shall not be discounted to present value. The jury shall not 
     be informed about the maximum award for noneconomic damages. 
     An award for noneconomic damages in excess of $250,000 shall 
     be reduced either before the entry of judgment, or by 
     amendment of the judgment after entry of judgment, and such 
     reduction shall be made before accounting for any other 
     reduction in damages required by law. If separate awards are 
     rendered for past and future noneconomic damages and the 
     combined awards exceed $250,000, the future noneconomic 
     damages shall be reduced first.
       (d) Fair Share Rule.--In any health care lawsuit, each 
     party shall be liable for that party's several share of any 
     damages only and not for the share of any other person. Each 
     party shall be liable only for the amount of damages 
     allocated to such party in direct proportion to such party's 
     percentage of responsibility. A separate judgment shall be 
     rendered against each such party for the amount allocated to 
     such party. For purposes of this section, the trier of fact 
     shall determine the proportion of responsibility of each 
     party for the claimant's harm.

     SEC. 5. MAXIMIZING PATIENT RECOVERY.

       (a) Court Supervision of Share of Damages Actually Paid to 
     Claimants.--In any health care lawsuit, the court shall 
     supervise the arrangements for payment of damages to protect 
     against conflicts of interest that may have the effect of 
     reducing the amount of damages awarded that are actually paid 
     to claimants. In particular, in any health care lawsuit in 
     which the attorney for a party claims a financial stake in 
     the outcome by virtue of a contingent fee, the court shall 
     have the power to restrict the payment of a claimant's damage 
     recovery to such attorney, and to redirect such damages to 
     the claimant based upon the interests of justice and 
     principles of equity. In no event shall the total of all 
     contingent fees for representing all claimants in a health 
     care lawsuit exceed the following limits:
       (1) 40 percent of the first $50,000 recovered by the 
     claimant(s).
       (2) 33\1/3\ percent of the next $50,000 recovered by the 
     claimant(s).
       (3) 25 percent of the next $500,000 recovered by the 
     claimant(s).
       (4) 15 percent of any amount by which the recovery by the 
     claimant(s) is in excess of $600,000.
       (b) Applicability.--The limitations in this section shall 
     apply whether the recovery is by judgment, settlement, 
     mediation, arbitration, or any other form of alternative 
     dispute resolution. In a health care lawsuit involving a 
     minor or incompetent person, a court retains the authority to 
     authorize or approve a fee that is less than the maximum 
     permitted under this section.

     SEC. 6. ADDITIONAL HEALTH BENEFITS.

       In any health care lawsuit, any party may introduce 
     evidence of collateral source benefits. If a party elects to 
     introduce such evidence, any opposing party may introduce 
     evidence of any amount paid or contributed or reasonably 
     likely to be paid or contributed in the future by or on 
     behalf of the opposing party to secure the right to such 
     collateral source benefits. No provider of collateral source 
     benefits shall recover any amount against the claimant or 
     receive any lien or credit against the claimant's recovery or 
     be equitably or legally subrogated to the right of the 
     claimant in a health care lawsuit. This section shall apply 
     to any health care lawsuit that is settled as well as a 
     health care lawsuit that is resolved by a fact finder. This 
     section shall not apply to section 1862(b) (42 U.S.C. 
     1395y(b)) or section 1902(a)(25) (42 U.S.C. 1396a(a)(25)) of 
     the Social Security Act.

     SEC. 7. PUNITIVE DAMAGES.

       (a) In General.--Punitive damages may, if otherwise 
     permitted by applicable State or Federal law, be awarded 
     against any person in a health care lawsuit only if it is 
     proven by clear and convincing evidence that such person 
     acted with malicious intent to injure the claimant, or that 
     such person deliberately failed to avoid unnecessary injury 
     that such person knew the claimant was substantially certain 
     to suffer. In any health care lawsuit where no judgment for 
     compensatory damages is rendered against such person, no 
     punitive damages may be awarded with respect to the claim in 
     such lawsuit. No demand for punitive damages shall be 
     included in a health care lawsuit as initially filed. A court 
     may allow a claimant to file an amended pleading for punitive 
     damages only upon a motion by the claimant and after a 
     finding by the court, upon review of supporting and opposing 
     affidavits or after a hearing, after weighing the evidence, 
     that the claimant has established by a substantial 
     probability that the claimant will prevail on the claim for 
     punitive damages. At the request of any party in a health 
     care lawsuit, the trier of fact shall consider in a separate 
     proceeding--
       (1) whether punitive damages are to be awarded and the 
     amount of such award; and
       (2) the amount of punitive damages following a 
     determination of punitive liability.

     If a separate proceeding is requested, evidence relevant only 
     to the claim for punitive damages, as determined by 
     applicable State law, shall be inadmissible in any proceeding 
     to determine whether compensatory damages are to be awarded.
       (b) Determining Amount of Punitive Damages.--
       (1) Factors considered.--In determining the amount of 
     punitive damages, if awarded, in a health care lawsuit, the 
     trier of fact shall consider only the following:
       (A) the severity of the harm caused by the conduct of such 
     party;
       (B) the duration of the conduct or any concealment of it by 
     such party;
       (C) the profitability of the conduct to such party;
       (D) the number of products sold or medical procedures 
     rendered for compensation, as the case may be, by such party, 
     of the kind causing the harm complained of by the claimant;
       (E) any criminal penalties imposed on such party, as a 
     result of the conduct complained of by the claimant; and
       (F) the amount of any civil fines assessed against such 
     party as a result of the conduct complained of by the 
     claimant.
       (2) Maximum award.--The amount of punitive damages, if 
     awarded, in a health care lawsuit may be as much as $250,000 
     or as much as two times the amount of economic damages 
     awarded, whichever is greater. The jury shall not be informed 
     of this limitation.
       (c) No Civil Monetary Penalties for Products in Compliance 
     With FDA Standards.--
       (1) Punitive damages.--
       (A) In general.--In addition to the requirements of 
     subsection (a), punitive damages may not be awarded against 
     the manufacturer or distributor of a medical product, or a 
     supplier of any component or raw material of such medical 
     product, on the basis that the harm to the claimant was 
     caused by the lack of safety or effectiveness of the 
     particular medical product involved, unless the claimant 
     demonstrates by clear and convincing evidence that--
       (i) the manufacturer or distributor of the particular 
     medical product, or supplier of any component or raw material 
     of such medical product, failed to comply with a specific 
     requirement of the Federal Food, Drug, and Cosmetic Act or 
     the regulations promulgated thereunder; and
       (ii) the harm attributed to the particular medical product 
     resulted from such failure to comply with such specific 
     statutory requirement or regulation.
       (B) Rule of construction.--Subparagraph (A) may not be 
     construed as establishing the obligation of the Food and Drug 
     Administration to demonstrate affirmatively that a 
     manufacturer, distributor, or supplier referred to in such 
     subparagraph meets any of the conditions described in such 
     subparagraph.
       (2) Liability of health care providers.--A health care 
     provider who prescribes a medical product approved or cleared 
     by the Food and Drug Administration shall not be named as a 
     party to a product liability lawsuit involving such product 
     and shall not be liable to a claimant in a class action 
     lawsuit against the manufacturer, distributor, or seller of 
     such product.

     SEC. 8. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO 
                   CLAIMANTS IN HEALTH CARE LAWSUITS.

       (a) In General.--In any health care lawsuit, if an award of 
     future damages, without reduction to present value, equaling 
     or exceeding $50,000 is made against a party with sufficient 
     insurance or other assets to fund a periodic payment of such 
     a judgment, the court shall, at the request of any party, 
     enter a judgment ordering that the future damages be paid by 
     periodic payments in accordance with the Uniform Periodic 
     Payment of Judgments Act promulgated by the National 
     Conference of Commissioners on Uniform State Laws.
       (b) Applicability.--This section applies to all actions 
     which have not been first set for trial or retrial before the 
     effective date of this Act.

     SEC. 9. DEFINITIONS.

       In this Act:
       (1) Alternative dispute resolution system; adr.--The term 
     ``alternative dispute resolution system'' or ``ADR'' means a 
     system that provides for the resolution of health care 
     lawsuits in a manner other than through a civil action 
     brought in a State or Federal court.
       (2) Claimant.--The term ``claimant'' means any person who 
     brings a health care

[[Page H1831]]

     lawsuit, including a person who asserts or claims a right to 
     legal or equitable contribution, indemnity or subrogation, 
     arising out of a health care liability claim or action, and 
     any person on whose behalf such a claim is asserted or such 
     an action is brought, whether deceased, incompetent, or a 
     minor.
       (3) Collateral source benefits.--The term ``collateral 
     source benefits'' means any amount paid or reasonably likely 
     to be paid in the future to or on behalf of the claimant, or 
     any service, product or other benefit provided or reasonably 
     likely to be provided in the future to or on behalf of the 
     claimant, as a result of the injury or wrongful death, 
     pursuant to--
       (A) any State or Federal health, sickness, income-
     disability, accident, or workers' compensation law;
       (B) any health, sickness, income-disability, or accident 
     insurance that provides health benefits or income-disability 
     coverage;
       (C) any contract or agreement of any group, organization, 
     partnership, or corporation to provide, pay for, or reimburse 
     the cost of medical, hospital, dental, or income disability 
     benefits; and
       (D) any other publicly or privately funded program.
       (4) Compensatory damages.--The term ``compensatory 
     damages'' means objectively verifiable monetary losses 
     incurred as a result of the provision of, use of, or payment 
     for (or failure to provide, use, or pay for) health care 
     services or medical products, such as past and future medical 
     expenses, loss of past and future earnings, cost of obtaining 
     domestic services, loss of employment, and loss of business 
     or employment opportunities, damages for physical and 
     emotional pain, suffering, inconvenience, physical 
     impairment, mental anguish, disfigurement, loss of enjoyment 
     of life, loss of society and companionship, loss of 
     consortium (other than loss of domestic service), hedonic 
     damages, injury to reputation, and all other nonpecuniary 
     losses of any kind or nature. The term ``compensatory 
     damages'' includes economic damages and noneconomic damages, 
     as such terms are defined in this section.
       (5) Contingent fee.--The term ``contingent fee'' includes 
     all compensation to any person or persons which is payable 
     only if a recovery is effected on behalf of one or more 
     claimants.
       (6) Economic damages.--The term ``economic damages'' means 
     objectively verifiable monetary losses incurred as a result 
     of the provision of, use of, or payment for (or failure to 
     provide, use, or pay for) health care services or medical 
     products, such as past and future medical expenses, loss of 
     past and future earnings, cost of obtaining domestic 
     services, loss of employment, and loss of business or 
     employment opportunities.
       (7) Health care lawsuit.--The term ``health care lawsuit'' 
     means any health care liability claim concerning the 
     provision of health care goods or services affecting 
     interstate commerce, or any health care liability action 
     concerning the provision of health care goods or services 
     affecting interstate commerce, brought in a State or Federal 
     court or pursuant to an alternative dispute resolution 
     system, against a health care provider, a health care 
     organization, or the manufacturer, distributor, supplier, 
     marketer, promoter, or seller of a medical product, 
     regardless of the theory of liability on which the claim is 
     based, or the number of claimants, plaintiffs, defendants, or 
     other parties, or the number of claims or causes of action, 
     in which the claimant alleges a health care liability claim.
       (8) Health care liability action.--The term ``health care 
     liability action'' means a civil action brought in a State or 
     Federal Court or pursuant to an alternative dispute 
     resolution system, against a health care provider, a health 
     care organization, or the manufacturer, distributor, 
     supplier, marketer, promoter, or seller of a medical product, 
     regardless of the theory of liability on which the claim is 
     based, or the number of plaintiffs, defendants, or other 
     parties, or the number of causes of action, in which the 
     claimant alleges a health care liability claim.
       (9) Health care liability claim.--The term ``health care 
     liability claim'' means a demand by any person, whether or 
     not pursuant to ADR, against a health care provider, health 
     care organization, or the manufacturer, distributor, 
     supplier, marketer, promoter, or seller of a medical product, 
     including, but not limited to, third-party claims, cross-
     claims, counter-claims, or contribution claims, which are 
     based upon the provision of, use of, or payment for (or the 
     failure to provide, use, or pay for) health care services or 
     medical products, regardless of the theory of liability on 
     which the claim is based, or the number of plaintiffs, 
     defendants, or other parties, or the number of causes of 
     action.
       (10) Health care organization.--The term ``health care 
     organization'' means any person or entity which is obligated 
     to provide or pay for health benefits under any health plan, 
     including any person or entity acting under a contract or 
     arrangement with a health care organization to provide or 
     administer any health benefit.
       (11) Health care provider.--The term ``health care 
     provider'' means any person or entity required by State or 
     Federal laws or regulations to be licensed, registered, or 
     certified to provide health care services, and being either 
     so licensed, registered, or certified, or exempted from such 
     requirement by other statute or regulation.
       (12) Health care goods or services.--The term ``health care 
     goods or services'' means any goods or services provided by a 
     health care organization, provider, or by any individual 
     working under the supervision of a health care provider, that 
     relates to the diagnosis, prevention, or treatment of any 
     human disease or impairment, or the assessment of the health 
     of human beings.
       (13) Malicious intent to injure.--The term ``malicious 
     intent to injure'' means intentionally causing or attempting 
     to cause physical injury other than providing health care 
     goods or services.
       (14) Medical product.--The term ``medical product'' means a 
     drug or device intended for humans, and the terms ``drug'' 
     and ``device'' have the meanings given such terms in sections 
     201(g)(1) and 201(h) of the Federal Food, Drug and Cosmetic 
     Act (21 U.S.C. 321), respectively, including any component or 
     raw material used therein, but excluding health care 
     services.
       (15) Noneconomic damages.--The term ``noneconomic damages'' 
     means damages for physical and emotional pain, suffering, 
     inconvenience, physical impairment, mental anguish, 
     disfigurement, loss of enjoyment of life, loss of society and 
     companionship, loss of consortium (other than loss of 
     domestic service), hedonic damages, injury to reputation, and 
     all other nonpecuniary losses of any kind or nature.
       (16) Punitive damages.--The term ``punitive damages'' means 
     damages awarded, for the purpose of punishment or deterrence, 
     and not solely for compensatory purposes, against a health 
     care provider, health care organization, or a manufacturer, 
     distributor, or supplier of a medical product. Punitive 
     damages are neither economic nor noneconomic damages.
       (17) Recovery.--The term ``recovery'' means the net sum 
     recovered after deducting any disbursements or costs incurred 
     in connection with prosecution or settlement of the claim, 
     including all costs paid or advanced by any person. Costs of 
     health care incurred by the plaintiff and the attorneys' 
     office overhead costs or charges for legal services are not 
     deductible disbursements or costs for such purpose.
       (18) State.--The term ``State'' means each of the several 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, the Virgin Islands, Guam, American Samoa, the Northern 
     Mariana Islands, the Trust Territory of the Pacific Islands, 
     and any other territory or possession of the United States, 
     or any political subdivision thereof.

     SEC. 10. EFFECT ON OTHER LAWS.

       (a) Vaccine Injury.--
       (1) To the extent that title XXI of the Public Health 
     Service Act establishes a Federal rule of law applicable to a 
     civil action brought for a vaccine-related injury or 
     death--
       (A) this Act does not affect the application of the rule of 
     law to such an action; and
       (B) any rule of law prescribed by this Act in conflict with 
     a rule of law of such title XXI shall not apply to such 
     action.
       (2) If there is an aspect of a civil action brought for a 
     vaccine-related injury or death to which a Federal rule of 
     law under title XXI of the Public Health Service Act does not 
     apply, then this Act or otherwise applicable law (as 
     determined under this Act) will apply to such aspect of such 
     action.
       (b) Other Federal Law.--Except as provided in this section, 
     nothing in this Act shall be deemed to affect any defense 
     available to a defendant in a health care lawsuit or action 
     under any other provision of Federal law.

     SEC. 11. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.

       (a) Health Care Lawsuits.--The provisions governing health 
     care lawsuits set forth in this Act preempt, subject to 
     subsections (b) and (c), State law to the extent that State 
     law prevents the application of any provisions of law 
     established by or under this Act. The provisions governing 
     health care lawsuits set forth in this Act supersede chapter 
     171 of title 28, United States Code, to the extent that such 
     chapter--
       (1) provides for a greater amount of damages or contingent 
     fees, a longer period in which a health care lawsuit may be 
     commenced, or a reduced applicability or scope of periodic 
     payment of future damages, than provided in this Act; or
       (2) prohibits the introduction of evidence regarding 
     collateral source benefits, or mandates or permits 
     subrogation or a lien on collateral source benefits.
       (b) Protection of States' Rights.--Any issue that is not 
     governed by any provision of law established by or under this 
     Act (including State standards of negligence) shall be 
     governed by otherwise applicable State or Federal law. This 
     Act does not preempt or supersede any law that imposes 
     greater protections (such as a shorter statute of 
     limitations) for health care providers and health care 
     organizations from liability, loss, or damages than those 
     provided by this Act.
       (c) State Flexibility.--No provision of this Act shall be 
     construed to preempt--
       (1) any State law (whether effective before, on, or after 
     the date of the enactment of this Act) that specifies a 
     particular monetary amount of compensatory or punitive 
     damages (or the total amount of damages) that may be awarded 
     in a health care lawsuit, regardless of whether such monetary 
     amount is greater or lesser than is provided for under this 
     Act, notwithstanding section 4(a); or
       (2) any defense available to a party in a health care 
     lawsuit under any other provision of State or Federal law.

[[Page H1832]]

     SEC. 12. APPLICABILITY; EFFECTIVE DATE.

       This Act shall apply to any health care lawsuit brought in 
     a Federal or State court, or subject to an alternative 
     dispute resolution system, that is initiated on or after the 
     date of the enactment of this Act, except that any health 
     care lawsuit arising from an injury occurring prior to the 
     date of the enactment of this Act shall be governed by the 
     applicable statute of limitations provisions in effect at the 
     time the injury occurred.

     SEC. 13. SENSE OF CONGRESS.

       It is the sense of Congress that a health insurer should be 
     liable for damages for harm caused when it makes a decision 
     as to what care is medically necessary and appropriate.

  The SPEAKER pro tempore. In lieu of the amendments recommended by the 
Committee on the Judiciary and the Committee on Energy and Commerce 
printed in the bill, an amendment in the nature of a substitute printed 
in House Report 108-34 is adopted.
  The text of H.R. 5, as amended pursuant to House Resolution 139, is 
as follows:

                                 H.R. 5

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Help Efficient, Accessible, 
     Low-cost, Timely Healthcare (HEALTH) Act of 2003''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--
       (1) Effect on health care access and costs.--Congress finds 
     that our current civil justice system is adversely affecting 
     patient access to health care services, better patient care, 
     and cost-efficient health care, in that the health care 
     liability system is a costly and ineffective mechanism for 
     resolving claims of health care liability and compensating 
     injured patients, and is a deterrent to the sharing of 
     information among health care professionals which impedes 
     efforts to improve patient safety and quality of care.
       (2) Effect on interstate commerce.--Congress finds that the 
     health care and insurance industries are industries affecting 
     interstate commerce and the health care liability litigation 
     systems existing throughout the United States are activities 
     that affect interstate commerce by contributing to the high 
     costs of health care and premiums for health care liability 
     insurance purchased by health care system providers.
       (3) Effect on federal spending.--Congress finds that the 
     health care liability litigation systems existing throughout 
     the United States have a significant effect on the amount, 
     distribution, and use of Federal funds because of--
       (A) the large number of individuals who receive health care 
     benefits under programs operated or financed by the Federal 
     Government;
       (B) the large number of individuals who benefit because of 
     the exclusion from Federal taxes of the amounts spent to 
     provide them with health insurance benefits; and
       (C) the large number of health care providers who provide 
     items or services for which the Federal Government makes 
     payments.
       (b) Purpose.--It is the purpose of this Act to implement 
     reasonable, comprehensive, and effective health care 
     liability reforms designed to--
       (1) improve the availability of health care services in 
     cases in which health care liability actions have been shown 
     to be a factor in the decreased availability of services;
       (2) reduce the incidence of ``defensive medicine'' and 
     lower the cost of health care liability insurance, all of 
     which contribute to the escalation of health care costs;
       (3) ensure that persons with meritorious health care injury 
     claims receive fair and adequate compensation, including 
     reasonable noneconomic damages;
       (4) improve the fairness and cost-effectiveness of our 
     current health care liability system to resolve disputes 
     over, and provide compensation for, health care liability by 
     reducing uncertainty in the amount of compensation provided 
     to injured individuals; and
       (5) provide an increased sharing of information in the 
     health care system which will reduce unintended injury and 
     improve patient care.

     SEC. 3. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

       The time for the commencement of a health care lawsuit 
     shall be 3 years after the date of manifestation of injury or 
     1 year after the claimant discovers, or through the use of 
     reasonable diligence should have discovered, the injury, 
     whichever occurs first. In no event shall the time for 
     commencement of a health care lawsuit exceed 3 years after 
     the date of manifestation of injury unless tolled for any of 
     the following:
       (1) Upon proof of fraud;
       (2) Intentional concealment; or
       (3) The presence of a foreign body, which has no 
     therapeutic or diagnostic purpose or effect, in the person of 
     the injured person.

     Actions by a minor shall be commenced within 3 years from the 
     date of the alleged manifestation of injury except that 
     actions by a minor under the full age of 6 years shall be 
     commenced within 3 years of manifestation of injury or prior 
     to the minor's 8th birthday, whichever provides a longer 
     period. Such time limitation shall be tolled for minors for 
     any period during which a parent or guardian and a health 
     care provider or health care organization have committed 
     fraud or collusion in the failure to bring an action on 
     behalf of the injured minor.

     SEC. 4. COMPENSATING PATIENT INJURY.

       (a) Unlimited Amount of Damages for Actual Economic Losses 
     in Health Care Lawsuits.--In any health care lawsuit, nothing 
     in this Act shall limit a claimant's recovery of the full 
     amount of the available economic damages, notwithstanding the 
     limitation in subsection (b).
       (b) Additional Noneconomic Damages.--In any health care 
     lawsuit, the amount of noneconomic damages, if available, may 
     be as much as $250,000, regardless of the number of parties 
     against whom the action is brought or the number of separate 
     claims or actions brought with respect to the same injury.
       (c) No Discount of Award for Noneconomic Damages.--For 
     purposes of applying the limitation in subsection (b), future 
     noneconomic damages shall not be discounted to present value. 
     The jury shall not be informed about the maximum award for 
     noneconomic damages. An award for noneconomic damages in 
     excess of $250,000 shall be reduced either before the entry 
     of judgment, or by amendment of the judgment after entry of 
     judgment, and such reduction shall be made before accounting 
     for any other reduction in damages required by law. If 
     separate awards are rendered for past and future noneconomic 
     damages and the combined awards exceed $250,000, the future 
     noneconomic damages shall be reduced first.
       (d) Fair Share Rule.--In any health care lawsuit, each 
     party shall be liable for that party's several share of any 
     damages only and not for the share of any other person. Each 
     party shall be liable only for the amount of damages 
     allocated to such party in direct proportion to such party's 
     percentage of responsibility. Whenever a judgment of 
     liability is rendered as to any party, a separate judgment 
     shall be rendered against each such party for the amount 
     allocated to such party. For purposes of this section, the 
     trier of fact shall determine the proportion of 
     responsibility of each party for the claimant's harm.

     SEC. 5. MAXIMIZING PATIENT RECOVERY.

       (a) Court Supervision of Share of Damages Actually Paid to 
     Claimants.--In any health care lawsuit, the court shall 
     supervise the arrangements for payment of damages to protect 
     against conflicts of interest that may have the effect of 
     reducing the amount of damages awarded that are actually paid 
     to claimants. In particular, in any health care lawsuit in 
     which the attorney for a party claims a financial stake in 
     the outcome by virtue of a contingent fee, the court shall 
     have the power to restrict the payment of a claimant's damage 
     recovery to such attorney, and to redirect such damages to 
     the claimant based upon the interests of justice and 
     principles of equity. In no event shall the total of all 
     contingent fees for representing all claimants in a health 
     care lawsuit exceed the following limits:
       (1) 40 percent of the first $50,000 recovered by the 
     claimant(s).
       (2) 33\1/3\ percent of the next $50,000 recovered by the 
     claimant(s).
       (3) 25 percent of the next $500,000 recovered by the 
     claimant(s).
       (4) 15 percent of any amount by which the recovery by the 
     claimant(s) is in excess of $600,000.
       (b) Applicability.--The limitations in this section shall 
     apply whether the recovery is by judgment, settlement, 
     mediation, arbitration, or any other form of alternative 
     dispute resolution. In a health care lawsuit involving a 
     minor or incompetent person, a court retains the authority to 
     authorize or approve a fee that is less than the maximum 
     permitted under this section. The requirement for court 
     supervision in the first two sentences of subsection (a) 
     applies only in civil actions.

     SEC. 6. ADDITIONAL HEALTH BENEFITS.

       In any health care lawsuit involving injury or wrongful 
     death, any party may introduce evidence of collateral source 
     benefits. If a party elects to introduce such evidence, any 
     opposing party may introduce evidence of any amount paid or 
     contributed or reasonably likely to be paid or contributed in 
     the future by or on behalf of the opposing party to secure 
     the right to such collateral source benefits. No provider of 
     collateral source benefits shall recover any amount against 
     the claimant or receive any lien or credit against the 
     claimant's recovery or be equitably or legally subrogated to 
     the right of the claimant in a health care lawsuit involving 
     injury or wrongful death. This section shall apply to any 
     health care lawsuit that is settled as well as a health care 
     lawsuit that is resolved by a fact finder. This section shall 
     not apply to section 1862(b) (42 U.S.C. 1395y(b)) or section 
     1902(a)(25) (42 U.S.C. 1396a(a)(25)) of the Social Security 
     Act.

     SEC. 7. PUNITIVE DAMAGES.

       (a) In General.--Punitive damages may, if otherwise 
     permitted by applicable State or Federal law, be awarded 
     against any person in a health care lawsuit only if it is 
     proven by clear and convincing evidence that such person 
     acted with malicious intent to injure the claimant, or that 
     such person deliberately failed to avoid unnecessary injury 
     that such person knew the claimant was substantially certain 
     to suffer. In any health care lawsuit where no judgment for 
     compensatory damages is rendered against such person, no 
     punitive damages may be awarded

[[Page H1833]]

     with respect to the claim in such lawsuit. No demand for 
     punitive damages shall be included in a health care lawsuit 
     as initially filed. A court may allow a claimant to file an 
     amended pleading for punitive damages only upon a motion by 
     the claimant and after a finding by the court, upon review of 
     supporting and opposing affidavits or after a hearing, after 
     weighing the evidence, that the claimant has established by a 
     substantial probability that the claimant will prevail on the 
     claim for punitive damages. At the request of any party in a 
     health care lawsuit, the trier of fact shall consider in a 
     separate proceeding--
       (1) whether punitive damages are to be awarded and the 
     amount of such award; and
       (2) the amount of punitive damages following a 
     determination of punitive liability.

     If a separate proceeding is requested, evidence relevant only 
     to the claim for punitive damages, as determined by 
     applicable State law, shall be inadmissible in any proceeding 
     to determine whether compensatory damages are to be awarded.
       (b) Determining Amount of Punitive Damages.--
       (1) Factors considered.--In determining the amount of 
     punitive damages, if awarded, in a health care lawsuit, the 
     trier of fact shall consider only the following:
       (A) the severity of the harm caused by the conduct of such 
     party;
       (B) the duration of the conduct or any concealment of it by 
     such party;
       (C) the profitability of the conduct to such party;
       (D) the number of products sold or medical procedures 
     rendered for compensation, as the case may be, by such party, 
     of the kind causing the harm complained of by the claimant;
       (E) any criminal penalties imposed on such party, as a 
     result of the conduct complained of by the claimant; and
       (F) the amount of any civil fines assessed against such 
     party as a result of the conduct complained of by the 
     claimant.
       (2) Maximum award.--The amount of punitive damages, if 
     awarded, in a health care lawsuit may be as much as $250,000 
     or as much as two times the amount of economic damages 
     awarded, whichever is greater. The jury shall not be informed 
     of this limitation.
       (c) No Punitive Damages for Products That Comply With FDA 
     Standards.--
       (1) In general.--
       (A) No punitive damages may be awarded against the 
     manufacturer or distributor of a medical product, or a 
     supplier of any component or raw material of such medical 
     product, based on a claim that such product caused the 
     claimant's harm where--
       (i)(I) such medical product was subject to premarket 
     approval, clearance, or licensure by the Food and Drug 
     Administration with respect to the safety of the formulation 
     or performance of the aspect of such medical product which 
     caused the claimant's harm or the adequacy of the packaging 
     or labeling of such medical product; and
       (II) such medical product was so approved, cleared, or 
     licensed; or
       (ii) such medical product is generally recognized among 
     qualified experts as safe and effective pursuant to 
     conditions established by the Food and Drug Administration 
     and applicable Food and Drug Administration regulations, 
     including without limitation those related to packaging and 
     labeling, unless the Food and Drug Administration has 
     determined that such medical product was not manufactured or 
     distributed in substantial compliance with applicable Food 
     and Drug Administration statutes and regulations.
       (B) Rule of construction.--Subparagraph (A) may not be 
     construed as establishing the obligation of the Food and Drug 
     Administration to demonstrate affirmatively that a 
     manufacturer, distributor, or supplier referred to in such 
     subparagraph meets any of the conditions described in such 
     subparagraph.
       (2) Liability of health care providers.--A health care 
     provider who prescribes, or who dispenses pursuant to a 
     prescription, a medical product approved, licensed, or 
     cleared by the Food and Drug Administration shall not be 
     named as a party to a product liability lawsuit involving 
     such product and shall not be liable to a claimant in a class 
     action lawsuit against the manufacturer, distributor, or 
     seller of such product. Nothing in this paragraph prevents a 
     court from consolidating cases involving health care 
     providers and cases involving products liability claims 
     against the manufacturer, distributor, or product seller of 
     such medical product.
       (3) Packaging.--In a health care lawsuit for harm which is 
     alleged to relate to the adequacy of the packaging or 
     labeling of a drug which is required to have tamper-resistant 
     packaging under regulations of the Secretary of Health and 
     Human Services (including labeling regulations related to 
     such packaging), the manufacturer or product seller of the 
     drug shall not be held liable for punitive damages unless 
     such packaging or labeling is found by the trier of fact by 
     clear and convincing evidence to be substantially out of 
     compliance with such regulations.
       (4) Exception.--Paragraph (1) shall not apply in any health 
     care lawsuit in which--
       (A) a person, before or after premarket approval, 
     clearance, or licensure of such medical product, knowingly 
     misrepresented to or withheld from the Food and Drug 
     Administration information that is required to be submitted 
     under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 
     et seq.) or section 351 of the Public Health Service Act (42 
     U.S.C. 262) that is material and is causally related to the 
     harm which the claimant allegedly suffered; or
       (B) a person made an illegal payment to an official of the 
     Food and Drug Administration for the purpose of either 
     securing or maintaining approval, clearance, or licensure of 
     such medical product.

     SEC. 8. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO 
                   CLAIMANTS IN HEALTH CARE LAWSUITS.

       (a) In General.--In any health care lawsuit, if an award of 
     future damages, without reduction to present value, equaling 
     or exceeding $50,000 is made against a party with sufficient 
     insurance or other assets to fund a periodic payment of such 
     a judgment, the court shall, at the request of any party, 
     enter a judgment ordering that the future damages be paid by 
     periodic payments. In any health care lawsuit, the court may 
     be guided by the Uniform Periodic Payment of Judgments Act 
     promulgated by the National Conference of Commissioners on 
     Uniform State Laws.
       (b) Applicability.--This section applies to all actions 
     which have not been first set for trial or retrial before the 
     effective date of this Act.

     SEC. 9. DEFINITIONS.

       In this Act:
       (1) Alternative dispute resolution system; adr.--The term 
     ``alternative dispute resolution system'' or ``ADR'' means a 
     system that provides for the resolution of health care 
     lawsuits in a manner other than through a civil action 
     brought in a State or Federal court.
       (2) Claimant.--The term ``claimant'' means any person who 
     brings a health care lawsuit, including a person who asserts 
     or claims a right to legal or equitable contribution, 
     indemnity or subrogation, arising out of a health care 
     liability claim or action, and any person on whose behalf 
     such a claim is asserted or such an action is brought, 
     whether deceased, incompetent, or a minor.
       (3) Collateral source benefits.--The term ``collateral 
     source benefits'' means any amount paid or reasonably likely 
     to be paid in the future to or on behalf of the claimant, or 
     any service, product or other benefit provided or reasonably 
     likely to be provided in the future to or on behalf of the 
     claimant, as a result of the injury or wrongful death, 
     pursuant to--
       (A) any State or Federal health, sickness, income-
     disability, accident, or workers' compensation law;
       (B) any health, sickness, income-disability, or accident 
     insurance that provides health benefits or income-disability 
     coverage;
       (C) any contract or agreement of any group, organization, 
     partnership, or corporation to provide, pay for, or reimburse 
     the cost of medical, hospital, dental, or income disability 
     benefits; and
       (D) any other publicly or privately funded program.
       (4) Compensatory damages.--The term ``compensatory 
     damages'' means objectively verifiable monetary losses 
     incurred as a result of the provision of, use of, or payment 
     for (or failure to provide, use, or pay for) health care 
     services or medical products, such as past and future medical 
     expenses, loss of past and future earnings, cost of obtaining 
     domestic services, loss of employment, and loss of business 
     or employment opportunities, damages for physical and 
     emotional pain, suffering, inconvenience, physical 
     impairment, mental anguish, disfigurement, loss of enjoyment 
     of life, loss of society and companionship, loss of 
     consortium (other than loss of domestic service), hedonic 
     damages, injury to reputation, and all other nonpecuniary 
     losses of any kind or nature. The term ``compensatory 
     damages'' includes economic damages and noneconomic damages, 
     as such terms are defined in this section.
       (5) Contingent fee.--The term ``contingent fee'' includes 
     all compensation to any person or persons which is payable 
     only if a recovery is effected on behalf of one or more 
     claimants.
       (6) Economic damages.--The term ``economic damages'' means 
     objectively verifiable monetary losses incurred as a result 
     of the provision of, use of, or payment for (or failure to 
     provide, use, or pay for) health care services or medical 
     products, such as past and future medical expenses, loss of 
     past and future earnings, cost of obtaining domestic 
     services, loss of employment, and loss of business or 
     employment opportunities.
       (7) Health care lawsuit.--The term ``health care lawsuit'' 
     means any health care liability claim concerning the 
     provision of health care goods or services or any medical 
     product affecting interstate commerce, or any health care 
     liability action concerning the provision of health care 
     goods or services or any medical product affecting interstate 
     commerce, brought in a State or Federal court or pursuant to 
     an alternative dispute resolution system, against a health 
     care provider, a health care organization, or the 
     manufacturer, distributor, supplier, marketer, promoter, or 
     seller of a medical product, regardless of the theory of 
     liability on which the claim is based, or the number of 
     claimants, plaintiffs, defendants, or other parties, or the 
     number of claims or causes of action, in which the claimant 
     alleges a health care liability claim. Such term does not 
     include a claim or action which is based on criminal 
     liability; which seeks civil fines or penalties paid to 
     Federal, State, or local

[[Page H1834]]

     government; or which is grounded in antitrust.
       (8) Health care liability action.--The term ``health care 
     liability action'' means a civil action brought in a State or 
     Federal Court or pursuant to an alternative dispute 
     resolution system, against a health care provider, a health 
     care organization, or the manufacturer, distributor, 
     supplier, marketer, promoter, or seller of a medical product, 
     regardless of the theory of liability on which the claim is 
     based, or the number of plaintiffs, defendants, or other 
     parties, or the number of causes of action, in which the 
     claimant alleges a health care liability claim.
       (9) Health care liability claim.--The term ``health care 
     liability claim'' means a demand by any person, whether or 
     not pursuant to ADR, against a health care provider, health 
     care organization, or the manufacturer, distributor, 
     supplier, marketer, promoter, or seller of a medical product, 
     including, but not limited to, third-party claims, cross-
     claims, counter-claims, or contribution claims, which are 
     based upon the provision of, use of, or payment for (or the 
     failure to provide, use, or pay for) health care services or 
     medical products, regardless of the theory of liability on 
     which the claim is based, or the number of plaintiffs, 
     defendants, or other parties, or the number of causes of 
     action.
       (10) Health care organization.--The term ``health care 
     organization'' means any person or entity which is obligated 
     to provide or pay for health benefits under any health plan, 
     including any person or entity acting under a contract or 
     arrangement with a health care organization to provide or 
     administer any health benefit.
       (11) Health care provider.--The term ``health care 
     provider'' means any person or entity required by State or 
     Federal laws or regulations to be licensed, registered, or 
     certified to provide health care services, and being either 
     so licensed, registered, or certified, or exempted from such 
     requirement by other statute or regulation.
       (12) Health care goods or services.--The term ``health care 
     goods or services'' means any goods or services provided by a 
     health care organization, provider, or by any individual 
     working under the supervision of a health care provider, that 
     relates to the diagnosis, prevention, or treatment of any 
     human disease or impairment, or the assessment or care of the 
     health of human beings.
       (13) Malicious intent to injure.--The term ``malicious 
     intent to injure'' means intentionally causing or attempting 
     to cause physical injury other than providing health care 
     goods or services.
       (14) Medical product.--The term ``medical product'' means a 
     drug, device, or biological product intended for humans, and 
     the terms ``drug'', ``device'', and ``biological product'' 
     have the meanings given such terms in sections 201(g)(1) and 
     201(h) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 
     321) and section 351(a) of the Public Health Service Act (42 
     U.S.C. 262(a)), respectively, including any component or raw 
     material used therein, but excluding health care services.
       (15) Noneconomic damages.--The term ``noneconomic damages'' 
     means damages for physical and emotional pain, suffering, 
     inconvenience, physical impairment, mental anguish, 
     disfigurement, loss of enjoyment of life, loss of society and 
     companionship, loss of consortium (other than loss of 
     domestic service), hedonic damages, injury to reputation, and 
     all other nonpecuniary losses of any kind or nature.
       (16) Punitive damages.--The term ``punitive damages'' means 
     damages awarded, for the purpose of punishment or deterrence, 
     and not solely for compensatory purposes, against a health 
     care provider, health care organization, or a manufacturer, 
     distributor, or supplier of a medical product. Punitive 
     damages are neither economic nor noneconomic damages.
       (17) Recovery.--The term ``recovery'' means the net sum 
     recovered after deducting any disbursements or costs incurred 
     in connection with prosecution or settlement of the claim, 
     including all costs paid or advanced by any person. Costs of 
     health care incurred by the plaintiff and the attorneys' 
     office overhead costs or charges for legal services are not 
     deductible disbursements or costs for such purpose.
       (18) State.--The term ``State'' means each of the several 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, the Virgin Islands, Guam, American Samoa, the Northern 
     Mariana Islands, the Trust Territory of the Pacific Islands, 
     and any other territory or possession of the United States, 
     or any political subdivision thereof.

     SEC. 10. EFFECT ON OTHER LAWS.

       (a) Vaccine Injury.--
       (1) To the extent that title XXI of the Public Health 
     Service Act establishes a Federal rule of law applicable to a 
     civil action brought for a vaccine-related injury or death--
       (A) this Act does not affect the application of the rule of 
     law to such an action; and
       (B) any rule of law prescribed by this Act in conflict with 
     a rule of law of such title XXI shall not apply to such 
     action.
       (2) If there is an aspect of a civil action brought for a 
     vaccine-related injury or death to which a Federal rule of 
     law under title XXI of the Public Health Service Act does not 
     apply, then this Act or otherwise applicable law (as 
     determined under this Act) will apply to such aspect of such 
     action.
       (b) Other Federal Law.--Except as provided in this section, 
     nothing in this Act shall be deemed to affect any defense 
     available to a defendant in a health care lawsuit or action 
     under any other provision of Federal law.

     SEC. 11. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.

       (a) Health Care Lawsuits.--The provisions governing health 
     care lawsuits set forth in this Act preempt, subject to 
     subsections (b) and (c), State law to the extent that State 
     law prevents the application of any provisions of law 
     established by or under this Act. The provisions governing 
     health care lawsuits set forth in this Act supersede chapter 
     171 of title 28, United States Code, to the extent that such 
     chapter--
       (1) provides for a greater amount of damages or contingent 
     fees, a longer period in which a health care lawsuit may be 
     commenced, or a reduced applicability or scope of periodic 
     payment of future damages, than provided in this Act; or
       (2) prohibits the introduction of evidence regarding 
     collateral source benefits, or mandates or permits 
     subrogation or a lien on collateral source benefits.
       (b) Protection of States' Rights and Other Laws.--(1) Any 
     issue that is not governed by any provision of law 
     established by or under this Act (including State standards 
     of negligence) shall be governed by otherwise applicable 
     State or Federal law.
       (2) This Act shall not preempt or supersede any State or 
     Federal law that imposes greater procedural or substantive 
     protections for health care providers and health care 
     organizations from liability, loss, or damages than those 
     provided by this Act or create a cause of action.
       (c) State Flexibility.--No provision of this Act shall be 
     construed to preempt--
       (1) any State law (whether effective before, on, or after 
     the date of the enactment of this Act) that specifies a 
     particular monetary amount of compensatory or punitive 
     damages (or the total amount of damages) that may be awarded 
     in a health care lawsuit, regardless of whether such monetary 
     amount is greater or lesser than is provided for under this 
     Act, notwithstanding section 4(a); or
       (2) any defense available to a party in a health care 
     lawsuit under any other provision of State or Federal law.

     SEC. 12. APPLICABILITY; EFFECTIVE DATE.

       This Act shall apply to any health care lawsuit brought in 
     a Federal or State court, or subject to an alternative 
     dispute resolution system, that is initiated on or after the 
     date of the enactment of this Act, except that any health 
     care lawsuit arising from an injury occurring prior to the 
     date of the enactment of this Act shall be governed by the 
     applicable statute of limitations provisions in effect at the 
     time the injury occurred.

     SEC. 13. SENSE OF CONGRESS.

       It is the sense of Congress that a health insurer should be 
     liable for damages for harm caused when it makes a decision 
     as to what care is medically necessary and appropriate.

  The SPEAKER pro tempore. The gentleman from Wisconsin (Mr. 
Sensenbrenner) and the gentleman from Michigan (Mr. Conyers) each will 
control 40 minutes and the gentleman from Louisiana (Mr. Tauzin) and 
the gentleman from Michigan (Mr. Dingell) each will control 20 minutes.
  The Chair recognizes the gentleman from Wisconsin (Mr. 
Sensenbrenner).


                             General Leave

  Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous material on H.R. 5, the bill under 
consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, our Nation is facing a health care crisis driven by 
uncontrolled litigation. Medical professional liability insurance rates 
have soared, causing major insurers to either drop coverage or to raise 
premiums to unaffordable levels. Doctors are being forced to abandon 
patients and practices or to retire early, particularly in high-risk 
specialties such as emergency medicine, brain surgery and obstetrics 
and gynecology. Women are being particularly hard hit, as are low 
income and rural neighborhoods.
  H.R. 5, the HEALTH Act, is modeled after California's highly 
successful health care litigation reforms enacted in 1975 and known 
under the acronym MICRA. California's reforms, which are included in 
the HEALTH Act, include a $250,000 cap on noneconomic damages, limits 
on the contingency fees lawyers can charge, and authorization for 
defendants to introduce evidence to prevent double recoveries. The 
HEALTH Act also includes provisions creating a fair share rule by which 
damages are allocated fairly in direct proportion to fault, reasonable 
guidelines on the award of punitive damages, and a safe

[[Page H1835]]

harbor for punitive damages for products that meet applicable FDA 
safety requirements.
  It is important to note that nothing in the HEALTH Act limits in any 
way the award of economic damages from anyone responsible for harm. 
Economic damages include anything to which a value can be attached, 
including lost wages, lost services provided, medical costs, the cost 
of pain-reducing drugs, and lifetime rehabilitation care, and anything 
else to which a receipt can be attached. Because of this, the reforms 
in the HEALTH Act still allow for very large, multi-million dollar 
awards to deserving victims, including homemakers and children, as the 
experience in California has shown.
  Still, the California reforms have been successful. Information 
provided by the National Association of Insurance Commissioners shows 
that since 1975, premiums paid in California increased by 167 percent 
while premiums paid in the rest of the country increased by 505 
percent. As Cruz Reynoso, the Democratic Vice Chairman of the U.S. 
Civil Rights Commission wrote recently in the Los Angeles Times, ``What 
is obvious about MICRA is that it works and it works well. Our 
California doctors and hospitals pay significantly less for liability 
protection today than their counterparts in States without MICRA-type 
reforms.''
  The Congressional Budget Office has concluded that ``under the HEALTH 
Act, premiums for medical malpractice insurance ultimately would be an 
average of 25 percent to 30 percent below what they would be under 
current law.'' If California's legal reforms were implemented 
nationwide, we could spend billions of dollars more annually on patient 
care. Reform at the Federal level is necessary because the current 
crisis is national in scope.
  According to a report by the Department of Health and Human Services, 
``The cost of these awards for noneconomic damages is paid by all other 
Americans through higher health care costs, higher health insurance 
premiums, higher taxes, reduced access to quality care, and threats to 
quality of care. The system permits a few plaintiffs and their lawyers 
to impose what is in effect a tax on the rest of the country to reward 
a very small number of patients.'' Congress must act to let doctors 
treat patients wherever they are and to reduce health care costs for 
all Americans.
  H.R. 5 will also save the Federal taxpayers billions of dollars. 
Former Democratic Senator George McGovern has written in the Wall 
Street Journal, ``Legal fear drives doctors to prescribe medicines and 
order tests, even invasive procedures, that they feel are unnecessary. 
Reputable studies estimate that this `defensive medicine' squanders $50 
billion a year, enough to provide medical care to millions of uninsured 
Americans.''
  According to the Department of Health and Human Services, ``If 
reasonable limits were placed on noneconomic damages to reduce 
defensive medicine, it would reduce the amount of taxpayers' money the 
Federal Government spends by $25.3-44.3 billion per year.''
  Furthermore, despite accusations from the other side of the aisle, 
this is not a crisis caused by insurance companies. The President of 
the National Association of Insurance Commissioners wrote last month 
that ``To date, insurance regulators have not seen evidence that 
suggests medical malpractice insurers have engaged or are engaging in 
price fixing, bid rigging, or market allocation. The preliminary 
evidence points to rising loss costs and defense costs associated with 
litigation as the principal drivers of medical malpractice prices.''
  We all recognize that injured victims should be adequately 
compensated for their injuries, but too often in this debate we lose 
sight of the larger health care picture. This country is blessed with 
the finest health care technology in the world. We are blessed with the 
finest doctors in the world. People are smuggled into this country for 
a chance at life and healing, the best chance they have in the world.
  The Department of Health and Human Services issued a report recently 
that included the following amazing statistics. During the last half 
century, death rates of children and adults up to age 24 were cut in 
half and infant mortality rates have plummeted 75 percent.

                              {time}  1215

  Mortality among adults between the ages of 25 and 64 fell nearly as 
much and dropped among those 65 years and older by a third. In 2000, 
Americans enjoyed the longest life expectancy in American history, 
almost 77 years.
  These amazing statistics just did not happen. They happened because 
America produces the best health care technology and the best doctors 
to use it. But now there are fewer and fewer doctors to use that 
miraculous technology or to use that technology where their patients 
are. We have the best brain-scanning and brain-operation devices in 
history and fewer and fewer neurosurgeons to use them. Unlimited 
lawsuits are driving doctors out of the healing profession. They are 
reversing the clock; and they are making us all less safe, all in the 
name of unlimited lawsuits and personal injury lawyers' lust for their 
cut of unlimited awards for unquantifiable damages. But when someone 
gets sick or is bringing a child into the world and we cannot call a 
doctor, who will we call, a lawyer?
  As a Nation today, we have to choose. Do we want the abstract ability 
to sue a doctor for unlimited, unquantifiable damages when doing so 
means that there will be no doctors to treat ourselves and our loved 
ones in the first place? On behalf of all 287 million Americans, all of 
us who are patients, let us say yes to reasonable health care 
litigation management and pass the HEALTH Act.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I am pleased to start the debate off on our 
side by yielding 3 minutes to the gentleman from North Carolina (Mr. 
Watt), the ranking member of the Subcommittee on Commercial and 
Administrative Law, where this bill would have gone had there been 
subcommittee hearings.
  Mr. WATT. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  Let me say first of all that I do not argue with the right of 
California to do tort reform or North Carolina or New York or any of 
the States. There are crises in some States, situations vary from State 
to State, and State legislators have the prerogative to set whatever 
tort laws they think are desirable. But I think it is the ultimate act 
of arrogance on our part as Members of Congress to think that we should 
dictate to the States in an area that has historically and forever been 
the prerogative of the State and in a way that I think substantially 
adversely impacts our whole Federal form of government, and in a way 
that runs contrary to just about everything my Republican colleagues 
say they stand for, which is devolving things back to the States.
  I talked to a doctor this morning and I said to him, I have never 
seen a malpractice take place across State lines. To the extent that 
you operate on a patient from North Carolina, you being a doctor in 
North Carolina and the patient is from South Carolina, that creates 
diversity of citizenship and gets you into the Federal court. I offered 
an amendment in the Committee on the Judiciary designed to restrict 
this legislation to suits that are brought properly in the Federal 
court. I think we have the prerogative as the Congress to define what 
the Federal tort standards should be. But when we start dictating to 
the States that you have got to follow this one-size-fits-all bill, I 
think we have just kind of lost sight of the whole thing.
  This should not be about getting the result that we want in any 
particular lawsuit that is pending. It should be about setting a 
framework, a public policy framework that honors the parameters that 
our Founding Fathers set up. For the life of me, I cannot figure out 
what the Federal nexus is for having a bill this broad. We can argue 
that there is a crisis; I do not think that is really the issue. The 
issue is how should we respond to the crisis and what should be our 
role at the Federal level in this context.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman 
from Texas (Mr. Smith).
  Mr. SMITH of Texas. Mr. Speaker, I thank the chairman of the 
Committee on the Judiciary for yielding me this time.
  Today, America faces a national insurance crisis that is destroying 
our

[[Page H1836]]

health care system. Medical liability insurance rates have soared, 
causing insurers either to drop their coverage or raise premiums to 
unaffordable levels. Doctors and other health care providers have been 
forced to abandon patients and practices, particularly in high-risk 
specialties such as emergency medicine, brain surgery, and obstetrics 
and gynecology. This is an intolerable problem that cries out for a 
solution.
  The American people understand the problem. A poll conducted in early 
February shows that 59 percent of all Americans believe the crisis 
should be solved either by reining in personal injury lawyers or by 
placing caps on the amounts juries can award. The obvious cause of 
skyrocketing medical professional liability premiums is escalating jury 
verdicts. The median medical malpractice jury award doubled between 
1995 and 2000, from a half a million to $1 million. That does not 
reflect the huge costs of cases that do not result in jury awards. In 
fact, 70 percent of all medical malpractice claims result in no 
payments because claims are either dismissed or withdrawn.
  The CEO of Methodist Children's Hospital in my hometown of San 
Antonio has seen his premiums increase from less than $20,000 to 
$85,000 in less than 10 years. He has been sued three times. In one 
case, his only interaction with the person suing was that he stopped by 
her child's hospital room and asked how the child was doing. Each jury 
cleared him of any wrongdoing, and the total amount of time all three 
juries spent deliberating was less than 1 hour. Of course, the doctor's 
insurance company did spend a great deal of time, effort and money in 
his defense.
  Mr. Speaker, Congress can solve the current health care crisis, but 
it can solve it only by passing the HEALTH Act.
  Mr. CONYERS. Mr. Speaker, I am delighted to yield 3 minutes to the 
gentleman from New York (Mr. Weiner), a distinguished member of the 
committee.
  Mr. WEINER. Mr. Speaker, first of all, as the debate begins, let us 
put some myths to rest. We are going to hear a great deal of references 
to the California law that put in a cap. Since 1998, premiums have gone 
up 37 percent in California. Nationally they have gone up about 6 
percent. So you keep talking about how great that has worked, but 
frankly it has not. In Florida where they also have a cap, and there 
are plenty of places around the country that do, they have a $450,000 
cap that was put in the last time that suddenly we had an insurance 
crisis in this country in 1985, 1986. What happened then? Oh, yeah, 
insurance companies lost a lot of money in the stock market then, too, 
so that was the last crisis that we had. At the time Florida, they were 
smart, they asked insurance companies to report back to them the effect 
of the law. Aetna Casualty reported back. St. Paul, then the largest 
malpractice insurer, reported back; and in the words of St. Paul they 
said, quote, ``The new limits will produce little or no savings to the 
tort system as it pertains to medical malpractice.''
  So feel free to keep talking about the examples that we have, but I 
think that you will find that when push comes to shove, the precedent 
is that these caps do not lower premiums. They do not lower premiums.
  We are also going to hear a great deal of assertion today about out-
of-control juries, out-of-control awards, judges who are completely out 
of their mind when they make decisions. Frankly, Duke Law School 
studied this notion not so long ago, as a matter of fact, in December 
of 2002. Here is what they said, and this is a quote: ``The assertion 
that jurors decide cases out of sympathy for injuries to plaintiffs 
rather than the legal merits of the case have been made about 
malpractice juries since at least the 19th century, yet no research 
shows support for these claims.''
  But this is part of what I think is an underlying theme on the other 
side. American citizens cannot be trusted on juries to decide for 
themselves. They are not smart enough. Apparently my colleagues believe 
that juries that are made up of nine or 12 American citizens from your 
districts cannot be trusted to make these decisions. They simply are 
not trustworthy. But who are they? They are the same people that voted 
for you. Why is it you trust them to make a decision about who their 
Congressman would be and you will not trust them to make a decision 
about whether or not some medical malpractice case occurred and someone 
should be held accountable for that?
  But there is another current here that I think is even more 
pernicious. Here we are. We sit in the Committee on the Judiciary. Let 
us take a look at what we have been doing recently. First, we are 
coming out after victims of this. This law only applies to you if you 
have been a victim of medical malpractice. You are a victim, but still 
we in the House want to take away your rights. Next we are going to 
take up bankruptcy reform. If you are really poor or you have fallen on 
hard times, we are coming after you next. But do not get too 
comfortable, because soon I hear that if you are an asbestos victim, we 
are going to come after your rights, too. This is who the Republican 
Party is standing up for in this House.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentlewoman 
from Pennsylvania (Ms. Hart).
  Ms. HART. Mr. Speaker, I rise in support of H.R. 5, the HEALTH Act. 
The practice of medicine in the United States is in real crisis. 
According to the American Medical Association, Pennsylvania's OB-GYN 
medical malpractice insurance rates increased from $25,000 to $64,000 
over the last few years. That is an increase of over 125 percent. That 
is, if the doctor can get insurance.
  Excessive lawsuits have gotten so out of control that many doctors 
are closing their practices, leaving many patients with long waits to 
see physicians who are farther and farther away from them. Just this 
past Monday, I met with a dozen physicians in my district. Of the 
dozen, nearly all of them raised their hands when I asked them if they 
have children. Of those, all but a few said that they would advise 
their children not even to consider studying medicine; and one doctor 
said his wife forbade their kids to even entertain such notions, all 
because of the unreasonable burden of out-of-hand insurance costs and 
the consistent fear of lawsuits.
  The Pennsylvania Medical Association reports that 80 percent of 
physicians have difficulties in recruiting new doctors and 89 percent 
of doctors practice defensive medicine, which increases health costs 
and drives doctors away from the highly specialized fields.
  This bill sets time-tested limits on liability so that we can end 
this crisis. The proposal provides commonsense reforms. It limits the 
number of years to file a health care liability action so claims are 
brought while evidence and witnesses are available. It allocates damage 
in proportion to a party's degree of fault. It allows patients to 
recover full economic damages, such as future medical expenses and loss 
of future earnings while establishing a cap on noneconomic damages of 
$250,000. It places reasonable limits on punitive damages as well.
  The criteria in this bill assure patients who are injured by a doctor 
that they will recover. But it also ensures that more of the money goes 
to the injured patient, not the attorney. Essentially, the lawyer is 
limited to 40 percent of the first $50,000 of the award, one-third of 
the second $50,000 and 15 percent of amounts over $600,000. The bill 
will protect victims of real malpractice, but it will also help reduce 
lawsuits.
  Our Nation has the best health care system in the world, but it is in 
peril. H.R. 5 will put us back on track.
  Mr. CONYERS. Mr. Speaker, I yield myself 30 seconds for the benefit 
of my distinguished colleague, the gentlewoman from Pennsylvania, on 
the Committee on the Judiciary. She does not know, as she leaves the 
floor, that a census conducted by the Pennsylvania Medical Professional 
Liability Catastrophe Loss Fund found that between 1990 and 2000, the 
number of doctors in Pennsylvania increased by 13.5 percent, while the 
population increased by only 3.4 percent.
  Mr. Speaker, I include the following citation for the Record:

       In Pennsylvania a census conducted by the Pennsylvania 
     Medical Professional Liability Catastrophe Loss Fund found 
     that between 1990 and 2000, the number of doctors increased 
     by 13.5 percent, while the population increased by only 3.4 
     percent. Not only is Pennsylvania not losing doctors, it had 
     more doctors in 2001 than it did in the preceding

[[Page H1837]]

     five to ten years. Furthermore, the Philadelphia Inquirer 
     notes that in 2000, ``Pennsylvania ranked ninth-highest 
     nationally for physician concentration, a top-10 position it 
     has held since 1992. There were 318 doctors for every 100,000 
     residents in 2000, according to the American Medical 
     Association.

                              {time}  1230

  Mr. Speaker, I yield 2 minutes to the gentleman from Florida (Mr. 
Wexler), a distinguished member on the Committee on the Judiciary.
  Mr. WEXLER. Mr. Speaker, I rise in opposition to H.R. 5. I do so 
because the proponents of this bill would have the country believe that 
the issue before this Congress is whether or not there is a medical 
malpractice crisis in America.
  There is a medical malpractice crisis, but the issue before this 
Congress is how do we resolve that crisis? How do we minimize the 
premiums that doctors have to pay in order to participate in our 
medical society?
  The reason we are in this position, according to a recently released 
report, particularly as it relates to my State, the State of Florida, 
by the group Public Citizen, is that a small number of negligent 
doctors and the cyclical nature of the insurance industry are largely 
to blame.
  The Public Citizen report found that 6 percent of all doctors are 
responsible for one-half, 50 percent, of all medical malpractice cases. 
Six percent of doctors are responsible for 50 percent of malpractice 
cases. Yet the bill before this Congress does not at all address peer 
review of physicians, nor does it address the insurance aspect of the 
medical malpractice crisis, nor, most importantly, does it require 
insurance companies to pass on the savings from the alleged cap that 
would occur, pass that money on to doctors in the form of lower 
premiums.
  In the State of Florida, which amounts to about 16 million people, in 
the last reported year there were 230 cases of awards in excess of 
$250,000, yet the proponents of this bill would argue that we will 
resolve this problem by limiting the excessive number of lawsuits that 
amount to excessive damages. They do not exist, these lawsuits, in the 
excessive number that they claim.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Georgia (Mr. Gingrey).
  Mr. GINGREY. Mr. Speaker, I thank the distinguished chairman of 
Committee on the Judiciary for granting me time to speak on H.R. 5, the 
Medical Justice Act, HEALTH ACT of 2003. As an OB/GYN Member of the 
body, I think I have a unique perspective on this issue, not only as a 
physician who has delivered more than 5,000 babies and seen many of my 
colleagues giving up their practice because of fear of runaway 
lawsuits, but also as a grandparent. Let me explain that to you, 
because this issue is all about access to care for our patients, the 
citizens this country.
  My identical twin granddaughters were born 5 years ago at 26 weeks. 
They each weighed 1 pound 12 ounces. Thank God we were in a community 
where we had access to care. There was an OB/GYN physician willing to 
take care of my daughter in that high risk situation. There was a 
skilled neonatologist. We did have a hospital that still had an 
intensive care nursery.
  Had we not been in that situation, had we been in a more rural part 
of my State or in some of the other States that are in a crisis mode, 
like the testimony that we heard from the mother yesterday from the 
State of Mississippi, my daughters would not have received that care, 
and instead of being healthy, vibrant 5-year-olds today, I am sure that 
both of them would have cerebral palsy, our family would be devastated 
and society would probably bear the brunt of the cost of their care for 
the rest of their lives.
  So this bill is all about access to care. It is not taking away a 
person's right to a redress of grievances in a situation where they 
have been injured by a practice below the standard of care. It is not 
taking away from a trial attorney that works in the area of personal 
injury their right to do business, and most do in a very equitable 
manner and with integrity. No, it is not about that at all. It is about 
access to care.
  I am proud to stand here today and enthusiastically support H.R. 5, 
and I hope the rest of my colleagues in this Chamber will do the same.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, only for the benefit of the gentleman from Georgia, who 
asserts that this bill does not take away anybody's rights, the 
gentleman must be aware, sir, as a Member of Congress and a doctor, 
that there is a $250,000 cap on noneconomic damages, unless he thinks 
that is not taking away anybody's rights.
  Mr. GINGREY. Mr. Speaker, will the gentleman yield?
  Mr. CONYERS. I yield to the gentleman from Georgia.
  Mr. GINGREY. Mr. Speaker, I thank the gentleman for yielding.
  Mr. Speaker, as we know, this bill, of course, is applicable to those 
States that have not addressed this issue. Certainly the State of West 
Virginia and others who have finally tackled this issue, as they did in 
California in 1978, I believe, they can set their own caps. This law, 
H.R. 5, will be applicable to those States who, for one reason or 
another, have not.
  Mr. CONYERS. Mr. Speaker, reclaiming my time, what about the States 
that have no caps?
  Mr. GINGREY. Mr. Speaker, if the gentleman will continue to yield, 
the States that have no caps, of course, for noneconomic damages, this 
cap of $250,000 would be applicable.
  Mr. CONYERS. In other words, the gentleman is sticking to his 
statement that this takes away nobody's economic rights, is that 
correct?
  Mr. GINGREY. If the gentleman will allow me to respond?
  Mr. CONYERS. If the gentleman will just answer yes or no.
  Mr. GINGREY. The answer is no, it takes away no one's economic 
rights.
  What in H.R. 5 is the gentleman pointing out to me or suggesting that 
takes away a person's right to economic recovery?
  Mr. CONYERS. Mr. Speaker, if may I kindly and politely reclaim my 
time, and I would ask the gentleman to seek his own time from this 
point on.
  Mr. Speaker, I yield 3\1/2\ minutes to the gentleman from 
Massachusetts (Mr. Delahunt), who has really worked hard on two 
committees and covered a lot of territory as a Member of Congress.
  Mr. DELAHUNT. Mr. Speaker, I thank the gentleman for yielding me 
time.
  Mr. Speaker, next week we will be considering most likely on the 
floor of the House a bill dealing with bankruptcy. Today we are 
considering a bill that is bankrupt, because it is an act of special 
cruelty that is being perpetrated on the most vulnerable of victims of 
malpractice, stay-at-home mothers and children, children like Steven 
Olson, who was left blind and brain damaged after an HMO refused to 
give him a $800 CAT scan when he was 2 years old. He is going to need 
round-the-clock care for the rest of his life. A jury, a jury, awarded 
him more than $7 million for his pain and suffering. But California has 
a cap on noneconomic damages, so the judge was forced to reduce the 
award to $250,000. That is $12 a day for the rest of his normal life 
expectancy.
  Is that all he is owed for the irreversible damage that was done to 
him? Is that fairness? Is that justice? I think we know the answer.
  Mr. Speaker, the sponsors of this bill have assured the physicians of 
America that this bill will lower their insurance premiums. The doctors 
are being deceived, for it includes none of the provisions that would 
be necessary to bring about such a result.
  The bill does nothing to reduce the staggering number of medical 
errors that kill so many thousands of Americans each year, according to 
some estimates, up to 98,000 deaths per year. That is a real crisis. It 
does nothing to weed out the 5 percent of the medical profession who 
are responsible for 54 percent of the medical claims. So what is going 
to happen is good doctors will continue to subsidize those that ought 
to be out of the profession.
  It does nothing to regulate the rates that insurance companies charge 
their policyholders. That did prove effective in California when it was 
passed in 1988.
  Instead of adopting any of these measures, the Republican majority 
has chosen to blame the victims, capping injury awards at artificially 
low levels that are insufficient to meet their needs and making it 
difficult for them

[[Page H1838]]

to even find a qualified attorney who is willing to take their case.
  It is unconscionable, Mr. Speaker, for Congress to deprive these 
victims of the right to have a jury of their peers decide what their 
pain and suffering is worth. It is rather ironic that rather than 
regulating insurance rates, the apostles of the free markets opt to 
impose a system of wage and price controls. What irony.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2\2/3\ minutes to the 
gentleman from Virginia (Mr. Forbes).
  Mr. FORBES. Mr. Speaker, I first would like to thank the 
distinguished chairman for his hard work on bringing this bill forward.
  Mr. Speaker, we have heard a number of things today, including from 
my good friend from North Carolina who mentioned that he had failed to 
see a situation where a malpractice case crossed State lines. Yet the 
case law in his own State contains many cases just like that.
  As a matter of fact, the Supreme Court in North Carolina has actually 
ruled that if a patient leaves North Carolina, where they have no cap, 
travels to Virginia and are treated by a doctor there who thinks he has 
the protection of a malpractice cap, they can actually be sued in North 
Carolina, and the Supreme Court there said no cap applies.
  Mr. Speaker, I have worked on this crisis, which I believe is indeed 
a crisis in health care and access to health care, for over a decade 
now, and every single time this issue is debated I see the opponents of 
this type of legislation coming in and they try to paint these faces.
  On the one hand, they will show a victim of the most egregious 
scenario, and certainly those victims do exist. On the other side, they 
will show a portrait, mental, if no other way, of a doctor who is the 
most egregious kind of doctor.
  Mr. Speaker, that is not the true face of this legislation, not the 
true face of this problem. Let me give you three of those faces.
  One is the young internist who tries to save the life of a patient 
who can no longer breathe, and is actually getting on a helicopter and 
traveling to a hospital with that patient. At the end, even though they 
have committed no malpractice, they end up in litigation for almost 4 
years. At the end of the process, the doctor looks at you and says, I 
did nothing wrong, but for 4 years I had a cloud of litigation over me, 
worried about whether I was going to lose my home and everything I had.
  It has the face of the emergency room physician who has been working 
for 8 hours, and all of a sudden responds to a code outside of the 
department with a dying patient that he cannot pull one more miracle 
out of the hat on, and that patient dies. He is brought into that 
litigation just as a shotgun approach, and, after 3\1/2\ years, even 
though he has no award against him, his malpractice premium has gone up 
70 percent.
  Mr. Speaker, it also has the face of a family practitioner, an 
African American practitioner who I met with just a few months ago, who 
2 years ago his premium was $30,000. Last year it went up to $100,000. 
This past year it went up to $230,000. Mr. Speaker, he closed his 
doors. The difficulty is not that he is no longer in that office; the 
difficulty is when all of the patients he serves knock on that door, he 
is not there to open it again.
  Mr. Speaker, the difficulty with not passing this bill is the fact 
that all of those patients would no longer have access to health care. 
That is why it is important we get it passed.

                              {time}  1245

  Ms. JACKSON-LEE of Texas. Mr. Speaker, I ask unanimous consent to 
control the time of the gentleman from Michigan (Mr. Conyers).
  The SPEAKER pro tempore (Mr. Simpson). Is there objection to the 
request of the gentlewoman from Texas?
  There was no objection.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, it is my pleasure to yield 3 
minutes to the distinguished gentlewoman from California (Ms. Waters), 
a member of the Committee on the Judiciary and a ranking member on the 
Committee on Financial Services.
  Ms. WATERS. Mr. Speaker, today we are here to debate a bill, H.R. 5, 
written for us by the insurance industry. Supporters of restricting 
jury awards and malpractice lawyers' fees say excessive billion-dollar 
damage awards in medical liability suits is the reason medical 
malpractice insurance premiums have risen so sharply and that nearly 
half the States are experiencing an insurance crisis. However, others 
say, and I agree, that rising malpractice rates are part of the 
cyclical nature of the insurance business, and insurers are raising 
premiums now to recoup recent stock market losses. In addition, I 
believe any crisis that exists is specific to certain medical 
specialties and regions of the country.
  Let us, Mr. Speaker, say it like it is: the insurance industry wants 
this bill because it will increase their profits. Well, forgive me if I 
do not support the insurance industry over injured patients. I do not 
represent insurance industry profiteers. I represent the people in my 
district, the people who will be severely disadvantaged if this bill 
passes in its current form.
  We have gone back and forth on this issue for a long time now. The 
medical malpractice insurers tell us again there is a crisis, there is 
a shortage, there is a stoppage, or whatever else they think will bully 
Congress into doing their bidding. It is truly terrible that good 
doctors are paying the price for the insurance industry's bad business 
decisions. It is truly terrible that the insurance industry has fooled 
doctors into believing that injured patients are to blame for high 
premiums, and it is truly terrible that the insurance industry has this 
control over the health care system.
  I would say to my colleagues, it is time for us to put an end to the 
misrepresentations of the insurance industry. It is time for us to 
stand up for our constituents and for people who have been injured, who 
have been maimed, and even killed, who deserve to be protected.
  I say vote ``no'' on this bad bill. Our citizens deserve to be 
compensated for medical malpractice.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Iowa (Mr. King).
  Mr. KING of Iowa. Mr. Speaker, I thank my distinguished chairman, the 
gentleman from Wisconsin (Mr. Sensenbrenner), for yielding me this time 
and also for his work on this important bill.
  Mr. Speaker, I would like to rise in support of H.R. 5. Many of the 
people I represent in Iowa have to drive a long ways to see a doctor 
and even further to see a specialist. Thankfully, the health care 
access prices in Iowa may not be as severe as they are in some of the 
other States, and we have heard some of that this afternoon. However, I 
know that rural States like Iowa need to do everything they can do to 
improve access to health care.
  Rising medical liability premiums due to lawsuits make it harder for 
doctors to stay in business and continue to see patients. As I said 
before, sometimes it is easier to sue a doctor than it is to see one. 
The health care access crisis hits rural Iowa hard because we have to 
drive further to seek medical attention. The people in my district 
cannot afford to lose a single OB-GYN or ER doctor to the rising 
medical insurance premiums; and if we do, our families will suffer.
  Expectant mothers will have to drive further to see their 
obstetricians, accident victims will spend critical minutes and hours 
in transportation, seniors will have to drive further and sometimes 
will not receive the care that they need. Access is critical. The 
people I represent should not have to spend more time on the road than 
in a doctor's office.
  The health care access crisis is further exaggerated in my district 
because we have the lowest reimbursement rate of the 50 States for 
Medicare reimbursement rates, and that means we have a thinner margin 
to play with.
  I would point out also that, if the folks that are seriously opposing 
this bill were defending just the interests of the patients, we would 
have seen an amendment that would have waived contingency fees on 
noneconomic damages.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, it gives me great pleasure to 
yield 3 minutes to the distinguished gentlewoman from California (Ms. 
Lofgren), a senior member of the House Committee on the Judiciary and 
Committee on Science.

[[Page H1839]]

  Ms. LOFGREN. Mr. Speaker, I am probably one of the few Members who 
have actually operated under MICRA in California. In the 14 years that 
I served on the board of supervisors, we bought malpractice insurance 
for the doctors at the county hospital; we settled lawsuits pursuant to 
MICRA related to the county medical professionals. People have argued 
the pros and cons of MICRA. The point that needs to be made is that 
H.R. 5 is not MICRA.
  MICRA's cap on noneconomic damages applies to medical malpractice 
cases only. H.R. 5 extends liability relief to insurance companies, 
HMOs, nursing homes, medical device manufacturers, and pharmaceutical 
companies. In some cases, injured persons, for example, an elderly 
person abused in a nursing home, will only be able to look to their 
noneconomic damages for relief because they do not have any earnings to 
recover.
  MICRA in California does not limit punitive damages in personal 
injury cases, but H.R. 5 caps punitive damages at two times economic 
loss, or $250,000, whichever is greater.
  H.R. 5 would actually preempt California law by precluding tort 
recovery against nursing homes, HMOs who wrongly make medical 
decisions, and insurance companies. It would undercut California's 
elder abuse statutes, as well as undercut new measures that we have 
fought hard for in California that allow HMOs to be held accountable 
for their decision-making when that decision-making disrupts the 
doctor-patient relationship.
  So whatever one thinks about MICRA in California, examine carefully 
H.R. 5, because it is not MICRA; it is putting the doctors in front of 
the insurance companies. But the big beneficiaries are the HMOs, the 
pharmaceutical companies, and the insurance companies and nursing 
homes.
  I think this is not what our country should be doing to preempt 
California's elder abuse statutes and our new effort to hold HMOs 
accountable for the practice of medicine through insurance.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Indiana (Mr. Chocola).
  Mr. CHOCOLA. Mr. Speaker, I thank the chairman for yielding me this 
time.
  Mr. Speaker, one of the biggest problems facing our health care 
system today does not start in the doctor's office or in the operating 
room; it starts in the courtroom. We have a problem in America. There 
are too many frivolous lawsuits against good doctors, and patients are 
paying the price. It costs money to fight a frivolous lawsuit and 
oftentimes, in order to avoid litigation, doctors and insurance 
companies settle cases, even though they have not committed a medical 
error.
  So it pays to sue. One can file lawsuit after lawsuit and eventually 
the legal system begins to look like a lottery. With the trial lawyers 
taking as much as 40 percent, it is clear who is winning.
  We want our legal system to benefit patients, not trial lawyers. 
Anyone who has been harmed at the hands of a doctor should have their 
day in court. They should be able to recover the full cost of their 
care, and they should be able to recover reasonable noneconomic 
damages.
  But we know the insurance companies raise the cost of medical 
malpractice coverage when faced with the risk of unlimited noneconomic 
damages. Doctors cannot afford to pay their insurance premiums and end 
up raising rates or leaving their homes for States with reformed 
medical litigation systems. That means that the health care is no 
longer affordable and accessible to many of our citizens. When doctors 
cannot pay the premiums and stop practicing medicine, everyone loses.
  Mr. Speaker, this culture of litigation has to end. No one has ever 
been cured by a frivolous lawsuit.
  So I support the reasonable limits on noneconomic damages. I believe 
it is time to pass medical liability reform that benefits patients, not 
trial lawyers. I urge the House to pass H.R. 5, the HEALTH Act of 2003.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, it gives me great pleasure to 
yield 1 minute to the distinguished gentlewoman from the Virgin Islands 
(Mrs. Christensen), a physician and an advocate for good health care 
for all Americans. We thank her very much for her leadership.
  (Mrs. CHRISTENSEN asked and was given permission to revise and extend 
her remarks.)
  Mrs. CHRISTENSEN. Mr. Speaker, H.R. 5 is but another wolf in lamb's 
clothing, pretending to help doctors and patients, but really only 
helping the large health care corporations and doing nothing to help 
lift the malpractice burdens from doctors and other providers, or to 
ensure fair treatment to their patients. Health care professionals need 
to see through this sham.
  I am a family physician. I see my classmates and other doctors, good 
ones, many who have never been sued, struggling to keep malpractice 
coverage and just to keep their offices open under the press of high 
premiums.
  It is truly unfortunate that many of the organizations representing 
us are mistakenly supporting H.R. 5, because I think they think this is 
the best they can get. H.R. 5 is not. As a matter of fact, it is no 
help at all. Doctors are but pawns in what is clearly special interest 
legislation.
  Mr. Speaker, H.R. 5 is an assault on the poor and minorities as well, 
because regardless of their injury and needs, the awards would be 
capped at low levels. For everyone, this bill sets values on human life 
and suffering that none of us can measure.
  I say to my colleagues, defeat this bad bill that does a disservice 
to all of us, and join with our colleagues, the gentleman from Michigan 
(Mr. Conyers) and the gentleman from Michigan (Mr. Dingell) and others, 
to pass a far better bill, a bill that will bring relief to HMOs, 
health professionals, and the patients who depend on their services and 
who need to be made whole.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentlewoman 
from Tennessee (Mrs. Blackburn).
  (Mrs. BLACKBURN asked and was given permission to revise and extend 
her remarks.)
  Mrs. BLACKBURN. Mr. Speaker, I rise today to support the HEALTH Act 
of 2003, because I know what runaway health costs and a broken health 
care system look like.
  In Tennessee we are battling to fix our own system, a statewide, 
nearly-universal health care service run by the government called 
Tenncare.
  H.R. 5 means doctors in your neighborhood, not 50, 100, or 500 miles 
away in a metropolitan area. H.R. 5 means lower insurance premiums for 
working families and for small businesses.
  This bill will not take away anyone's right to compensation. What it 
will do is prevent our community doctors, our community doctors from 
being targeted by profiteering lawyers.
  I encourage all of my colleagues to join in supporting the HEALTH Act 
of 2003.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield myself 25 seconds.
  I beg to differ with the gentlewoman from Tennessee. I wish her 
remarks were accurate, in noting from the American Insurance 
Association a comment that says, ``Insurers never promised that tort 
reform,'' which is what medical malpractice, what H.R. 5 is, ``would 
achieve specific premium savings.'' So in fact, the doctors will not be 
helped from this legislation, H.R. 5. The only persons that will be 
helped will be the insurance companies.
  Mr. Speaker, it gives me great pleasure to yield 1 minute to the 
distinguished gentleman from Missouri (Mr. Clay), a fighter for the 
rights of many and an advocate for good health care for all Americans.
  Mr. CLAY. Mr. Speaker, I thank the gentlewoman for yielding me this 
time.
  Mr. Speaker, I rise in opposition to H.R. 5. The bill does a 
disservice to the medical liability insurance problem. It fails to 
provide the necessary solutions which are needed to have a win/win 
situation for all concerned parties.
  Proposed legislative relief in the form of damage caps such as H.R. 5 
may be construed as only a small portion of the remedy. Caps alone will 
not result in an immediate decrease in premiums. Malpractice suits take 
3 to 8 years to come to trial. Current pending or filed suits will not 
be resolved for years. New caps on damages may not retroactively cover 
current suits. Therefore, premiums will not go down.
  This bill is silent on the issue of the insurance industry and the 
failed investments policies of that industry's

[[Page H1840]]

past. The choice is simple: enact H.R. 5 and have a system that has a 
tremendous overhead and continues to cause a disservice, or have a true 
reform plan that gives an immediate reduction in cost.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Pennsylvania (Mr. Gerlach).
  Mr. GERLACH. Mr. Speaker, physicians in Pennsylvania face 
skyrocketing liability insurance rates. This is forcing them to leave 
their practices, retire early, or stop performing certain procedures.

                              {time}  1300

  That threatens access to care for patients in Pennsylvania and across 
this country. In my district alone, hospital services have been 
curtailed and advanced life support services have been terminated at an 
alarming rate. Without passage of medical liability reform at the 
Federal level, this situation will continue to worsen.
  From 1977 to 2000 the number of practicing OB/GYNs in southeastern 
Pennsylvania has declined by 20 percent, and that is before the 
astronomical increase in doctors' medical liability, doctor insurance 
rates that took place last year. In Pennsylvania more than 75 hospital 
services have been closed or curtailed in the past year alone. The most 
severely affected specialty services are obstetrics, orthopedics, 
general surgery and neurosurgery.
  Mr. Speaker, my constituents need real, meaningful medical liability 
reform and they need it now. We cannot allow the continuation of a 
system that is threatening and has in fact cut off patients' access to 
their doctor or hospital of choice. Let us put the patients above 
litigation and let us pass this bill.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield myself 15 seconds.
  The playbook is being said over and over again. Victor Schwartz on 
tort reform says that many tort reform advocates do not contend that 
restricting litigation will lower insurance rates, and I have never 
said that in 30 years.
  Mr. Speaker, I will not vote for H.R. 5, because as it is, it does 
nothing to decrease the premiums our Nation's physicians are burdened 
with. It does nothing to decrease the number of frivolous lawsuits. It 
does nothing to decrease the amount of malpractice being inflicted upon 
the American people, by bad doctors who are jeopardizing the lives of 
their patients, and driving up the insurance costs of their colleagues. 
And it does nothing to protect the rights of those suffering in the 
wake of an act of medical negligence.
  I have doctors in my district, who are struggling with high 
malpractice insurance premiums. In some regions, for some specialties, 
those premiums can be outrageous. If this bill becomes law, the caps on 
claims from injured patients will put a lot of money into the coffers 
of insurance companies. I offered an amendment yesterday in the Rules 
Committee that would have forced insurance companies to pass at least 
half of that money down to physicians in the form of reduced premiums. 
That just makes sense, if this bill is really intended to decrease 
premiums. But that amendment will not receive a vote today. That fact 
lays bare the claim that this bill is anything more than a gift to the 
insurance industry.
  This bill has many troubling aspects and omissions. For example, 
noneconomic and punitive damages are capped at $250,000 and there is no 
provision to have this arbitrary number rise over time with inflation. 
So, we know that the value of the dollar will go down over time. Do we 
also feel the value of a human life, or of a child's pain and suffering 
will also go down over time? I surely do not. This could have easily 
been changed, but it was not.
  Another aspect of this bill that I feel is morally repugnant, is in 
its valuing of rich people's lives more than poor people's, or 
children's, or stay-at-home mothers'. In the case of truly heinous acts 
of negligence, a judge and jury can award a damaged person with 
punitive damages. Punitive damages, as the name implies, are meant to 
punish egregious wrong-doers. This bill caps punitive damages at 
$250,000 or twice the economic damages, whichever is higher. So if a 
CEO with a high salary is injured and can't go back to work, his 
economic damages could be in the millions, and therefore through 
punitive damages--the perpetrator would be punished severely. On the 
other hand, if the injured is a child or a stay-at-home mother, the 
economic damages would be low, and the punitive damages would be capped 
at $250,000. Why would the U.S. Government, dedicated to the idea that 
every person should be treated as equal, say that doctors who hurt rich 
people should be punished more than those who hurt poor people--that 
the value of a poor person's life is less--that it is OK to take bigger 
risks in treating poor people? This is absolutely morally bankrupt.
  And the bill does nothing to stem the tide of frivolous lawsuits. 
This bill, by definition, cuts awards to those people who a jury 
decided were not frivolous. This is short-circuiting our judicial 
process.
  What in the name of God and country are we doing giving a gift to 
insurance companies, while people are suffering and access to medical 
care is threatened? I will vote against H.R. 5 and urge my colleagues 
to do the same.
  Mr. Speaker, I yield 3 minutes to the gentleman from California (Mr. 
Berman), a distinguished senior member of the Committee on the 
Judiciary who knows about California medical malpractice law firsthand.
  Mr. BERMAN. Mr. Speaker, I thank the gentlewoman for yielding me 
time.
  Mr. Speaker, two points: In California we had much of the same issue 
that the country is now facing, rapidly escalating medical malpractice 
premiums, concerns that the health care system was broken, and we 
weighed the two approaches we had. One is the accountability for bad 
medical practices through the tort system versus a compromise that used 
a combination of tort reform, enhanced regulation of the medical 
profession and hospitals in terms of ensuring that bad practice would 
not be allowed to go unpunished and to continue, and insurance industry 
regulation legislation.
  Now, we have this crisis in many other States of the Nation. Without 
getting into the issue to the extent to which tort reform played a role 
in reducing medical malpractice premiums and without getting into the 
debate about why we would need to federalize the entire system rather 
than letting the States work this through the same way California did, 
I just wanted to draw the attention of the body to the fact that what 
you are being told is not true. This is not an effort to take the 
California law as passed in 1975, known as MICRA, and to pass it and 
federalize it and to have it apply to the country as a whole.
  This is a bald faced effort to cherry-pick certain provisions of that 
law, add many different people to the coverage of that law that were 
never included in that law, add additional tort reform provisions to 
that law that were not included in that law and then claim that we are 
doing MICRA.
  In MICRA we enacted a series of very serious tort reforms, including 
the cap of $250,000, which I opposed vociferously then and do now. But 
we also massively enhanced both the level of insurance industry 
regulation and the authority of the boards of medical quality 
assurance, the disciplinary boards, to discipline those few physicians 
who were truly bad doctors, whose record of malpractice was astounding. 
If there was not going to be the full accountability from the tort 
system for the conduct of those physicians, then their status, their 
licenses would be in jeopardy.
  We provided immunity to other physicians so that they would testify 
about the bad practices of those few doctors. We set up peer review 
committees in every area of this State. We significantly enhanced the 
powers of the boards of medical quality assurance. None of that, 
absolutely none of that appears here. This is a one-sided effort 
appealed to by certain interests, decrying other interests, to pretend 
they are taking the balanced approach of California when they are 
cherry-picking it to only limit its impact on one issue, the ability of 
injured patients to recover because of the negligence of another.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Texas (Mr. Burgess).
  Mr. BURGESS. Mr. Speaker, I thank the gentleman for yielding me time.
  Mr. Speaker, I rise today in support of H.R. 5, the HEALTH Act. 
Before coming to Congress I served as a doctor in north Texas for over 
25 years. Over that time I delivered over 3,000 babies and handled my 
fair share of high-risk births. Because of the nature of my profession, 
I was not immune to being named in a lawsuit. Even though these claims 
were eventually dropped, my patients could not get back my time or the 
benefit of the care that they lost because I was away from my practice 
defending my livelihood.
  The current legal environment reduced the access my patients had to 
my services, and that is a situation

[[Page H1841]]

that I find unconscionable. Thousands of doctors share a similar story 
and millions of patients are affected in the same way by the current 
system.
  The legal environment in which doctors must work is lopsided to favor 
a very narrow special interest group, that of the plaintiffs' bar. 
Because of this patients are losing access to specialized care they 
need because doctors are being driven out of business or taking time 
away from their practices to defend against frivolous claims. I urge 
passage of H.R. 5.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield 1 minute to the 
distinguished gentleman from New Jersey (Mr. Pascrell), one who has 
been a fighter for physicians and first responders.
  Mr. PASCRELL. Mr. Speaker, I thank the gentlewoman for yielding me 
time.
  Mr. Speaker, I read section 12 of this legislation and it says that 
this is going to go into effect on the enactment of this bill, it 
becomes law. There is no grant program to help health care 
professionals. There is no end of frivolous lawsuits that has been 
discussed anywhere in this legislation. There is no attempt to pass on 
the savings to the very doctors who you have conned into believing that 
their rates are going to go down.
  The insurance industry has said time and time again, not to the 
doctors, that there is no guarantee that the premiums will go down if 
this is enacted. And what you are going to do to us in New Jersey and 
10 other States where we have strong legislation dealing with HMOs that 
rule the roost, you are going to let them all off the hook and you are 
going to protect bad doctors, bad hospitals and you are certainly going 
to protect bad insurance companies. And I say to you, you have created 
a great injustice here by putting forth this legislation without even 
allowing us to consider trying to solve the problem. Our bill does 
that.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Illinois (Mr. Kirk).
  Mr. KIRK. Mr. Speaker, I thank the distinguished chairman for 
yielding me time and will answer my colleague that you cannot con 
doctors into anything. Doctors are not only trained professionals who 
can diagnosis what is wrong with you, they can diagnose what is wrong 
with our country.
  I rise in support of H.R. 5. Without this bill health care in my 
State of Illinois will change for the worse. I am standing here 
representing Dr. Gina Wehrmann, who after paying her malpractice bill 
made less than the office manager in her practice and is now a 
pharmacist at Walgreens. I also stand with Dr. Scott Hansfield, head of 
obstetrics at Highland Park Hospital, who recently notified 2,500 of my 
constituents that he is leaving the practice of medicine and moving to 
a tort reform State.
  The AMA has just put Illinois on the crisis list of liability watch 
for their practice. And in testimony before the Committee on Small 
Business, we learned that 85 percent of neurosurgeons have been sued in 
my State. Asked if this is too many, the plaintiffs' association said, 
no, 85 percent of neurosurgeons in Illinois were bad doctors.
  I am worried about the plaintiffs' bar and its unintended war on 
women, forcing OB/GYNs out of my State of Illinois.
  This is needed legislation. We need to pass it now. I commend the 
chairman.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield the gentleman from New 
Jersey (Mr. Pascrell) 10 seconds to respond.
  Mr. PASCRELL. Mr. Speaker, is this gentleman letting us know today 
that he is guaranteeing a reduction in the premiums if this bill is 
passed? Is that what the gentleman is saying? I would like him to say 
for the record.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield 3 minutes to myself.
  (Ms. JACKSON-LEE of Texas asked and was given permission to revise 
and extend her remarks.)
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I want to answer and I thank 
the distinguished speaker.
  Mr. Speaker, I am going to ask the young lady just to come closer. We 
have the personal touch here this afternoon.
  I want to answer the question that has been raised. This is over and 
over again about whose problems we are solving. Can I give my friends 
the real facts?
  Sixty-one percent of the cases are dropped. That means as you go into 
the courthouse, and those of you who have been injured, you have your 
cases dismissed 61 percent. Plaintiffs only get 1 percent of the 
verdicts across the Nation. Defense verdicts. That means they rule on 
behalf of the HMOs, the doctors, the hospitals, 6 percent, and 
settlements are 32 percent.
  H.R. 5 is a bill that does not harm the doctors and the physicians, 
which we do not want to harm, but it literally destroys the victims. 
What it does is when the verdicts come it injures the victims because 
you tell them that they cannot get a recovery.
  There is no crisis in medical malpractice insurance. What the crisis 
is is the insurance companies who refuse to reduce the payments.
  So let me show you who will be hurt by H.R. 5. Nathaniel will be hurt 
by H.R. 5. This is the face of H.R. 5. Why? Because Nathaniel was 6 
weeks old when Nathaniel became brain damaged because he was not 
diagnosed with jaundice. In the Democratic substitute we eliminate 
cutting off Nathaniel's damages. We take the caps off the noneconomic 
damages. Is it not interesting that physicians who want to have their 
rates reduced do not get any relief directly from the insurance payoff 
because this is not access to medical care. This is insurance payoff 
day.
  What we do for Nathaniel in the Democratic substitute is we say to 
the doctors, if you are good doctors, we want the savings that have 
been given to those to be reduced. I had an amendment that said reduce 
it by 50 percent. Put 50 percent of the savings and reduce the premiums 
of the doctors. This is real medical malpractice response. This puts 
the doctors in the rural communities in New Jersey, in Mississippi, in 
Texas and New York in the innercity. This helps the babies like 
Nathaniel.
  And then to my dear friends, what about the States rights? What about 
the States that want to make their own determinations to protect their 
own citizens, to ensure that Nathaniel does not lay languishing with 
brain damage, and because he was only 6 weeks old, the noneconomic 
damages that would provide for him for the rest of his life were cut 
off, the pain and suffering damages were cut off at $250,000 in today's 
time? So besides cutting us off from having amendments, besides denying 
us a substitute--a legitimate way to discuss a reasonable response--
this is what we have today: A false bill that addresses a false issue 
and Nathaniel languishing in brain damage. Our bill would have provided 
Nathaniel for getting his day in court, providing for his mother and 
father the pain and suffering they are experiencing while he languishes 
without hope.
  Payoff day for insurance companies. I stand against it. Vote against 
H.R. 5.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute.
  Mr. Speaker, the gentlewoman from Texas (Ms. Jackson-Lee) displayed a 
chart that indicated that 61 percent of the malpractice cases were 
either settled or dropped, and she insinuated that that was for free. 
It is not for free. It costs money to defend those suits, to go to 
court, to file answers, to do whatever discovery is necessary in order 
to convince the plaintiff that they do not have a case, and those costs 
get folded into the liability premiums that the physicians have to pay.
  Who gets off free? It is the plaintiff that gets off free because the 
plaintiff is on a contingency fee and if there is no recovery then the 
plaintiff does not have any lawyer fees at all.
  Mr. Speaker, I reserve the balance of my time.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield myself 25 seconds to 
respond.
  The Republicans have represented that H.R. 5 is to reduce the 
premiums of physicians. Let it be perfectly clear, and I stand by my 
document, 61 percent are dismissed, but let it be perfectly clear that 
nowhere will the physicians have premiums reduced and more doctors be 
able to practice because we pass H.R. 5, which is a payout to the 
insurance companies. I maintain that position and it is accurate.
  Mr. Speaker, I yield 1\1/2\ minutes to the distinguished gentleman 
from Pennsylvania (Mr. Hoeffel), who experiences firsthand what happens 
with a

[[Page H1842]]

crisis in his State. He is a leader on these issues.

                              {time}  1315

  Mr. HOEFFEL. Mr. Speaker, I thank the gentlewoman for yielding me the 
time.
  I agree with her concern because Pennsylvania doctors have a 
tremendous problem with medical malpractice premiums doubling and 
tripling, but they have been sold a bill of goods. This bill will not 
bring down their premiums. We should try to help those doctors, but not 
by punishing the most severely injured victims of medical malpractice.
  We need insurance reform. The law in California did not work to bring 
down premiums. When they put a $250,000 cap on damages, the premiums 
continued to rise until they passed insurance reform in 1988 and 
mandated a reduction in premiums. That is what we need to be doing 
here.
  At a minimum, we have got to put flexibility into these hard and 
inflexible caps. We ought to allow the trial judge at a minimum to 
allow something above the caps if circumstances on a case-by-case basis 
require that, but this House will not allow that to happen.
  Let us look at the sad case of Linda McDougal, who was diagnosed with 
breast cancer and had both breasts removed because of the lab report. 
It turned out the lab was wrong. The good news for Linda McDougal is 
that she does not have breast cancer. The bad news is she does not have 
breasts anymore.
  What is that worth? The proponents of this legislation would say that 
a woman's breasts are worth no more than $250,000. I do not want my 
colleagues to make that decision. I want a jury to make that decision. 
I want to defeat this bill.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute.
  We have heard an awful lot about the impact on insurance premiums, 
and I just want to read from the CBO estimate, the cost of this bill. 
The CBO estimates that under this bill premiums for medical malpractice 
insurance ultimately would be an average of 25 to 30 percent lower than 
what they would be under the current law. However, other factors noted 
above may affect future premiums, possibly obscuring the anticipated 
effect of the legislation.
  The effect of H.R. 5 would vary substantially across States, 
depending upon the extent to which a State already limits malpractice 
litigation. There would be almost no effect in malpractice premiums at 
about one-fifth of the States, while reductions in premiums would be 
substantially larger than the overall average at about one-third of the 
States.
  What this means is that the reduction in premiums will be much 
greater in the States where there is a crisis, and what this bill does 
is that it provides access to medical care in States where high risk 
specialists are closing their practices because they cannot make enough 
money to support themselves and to pay their liability insurance 
premiums.
  Mr. Speaker, I reserve the balance of my time.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield myself 10 seconds.
  The real point is that the insurance companies have specifically said 
they will not reduce premiums with the passage of H.R. 5.
  Mr. Speaker, I yield 1 minute to the distinguished gentleman from 
Illinois (Mr. Davis), who knows hospitals because they are in his 
district, an advocate for good health care for all Americans.
  (Mr. DAVIS of Illinois asked and was given permission to revise and 
extend his remarks.)
  Mr. DAVIS of Illinois. Mr. Speaker, in Chicago, an electrocardiogram 
is misread and the patient dies of a heart attack. A rare heart 
disorder is mistaken for a back strain and kidney stone. The patient 
dies. Both of these cases are about real people and real pain. In both 
cases, the families were awarded decent sums of money by juries, but I 
can tell my colleagues, no sum of money will ever replace the loss and 
suffering of people's lives. Yes, there is a crisis in health care, but 
this one-size-fits-all $250,000 cap on medical malpractice payoffs will 
not solve the problem.
  I have a profound respect for doctors, nurses, hospitals and other 
health care professionals who provide services, some 25 of them in my 
Congressional district, five medical schools, but I am not prepared to 
leave to chance a $250,000 cap on consumers.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman 
from Texas (Mr. Stenholm).
  (Mr. STENHOLM asked and was given permission to revise and extend his 
remarks.)
  Mr. STENHOLM. Mr. Speaker, I rise in support of H.R. 5, of which I am 
an original cosponsor. I cosponsored this bill because I believe that 
it will help ensure the availability of vital health services for 
patients in this country.
  Listening to the debate today, the average citizen would assume that 
it is necessary to choose sides. Either one is for the docs and other 
health care providers or they are for the patients. I simply reject 
that premise and assert another, which is this. We must have a system 
where good doctors can practice good medicine if we are going to have 
healthy patients.
  Does creating a good system mean that no doctor will ever fail again? 
No patient will ever again be injured through negligence or poor 
practice patterns? Of course not. But when those injuries occur through 
clearly bad behavior on the part of a health care team, I want the 
health care professionals to be responsible for their action.
  I sympathize with the case examples brought to the floor by my 
colleagues on my own side of the aisle. There are a great many 
tragedies which occur when health care is poorly delivered. I have no 
interest in removing appropriate avenues of redress for those injured 
people and their families, but I do not believe these cases have much, 
if anything, to do with the bill before us today because it retains a 
great deal of legal redress for plaintiffs.
  No one can claim that the system we have now is good for the doctors 
or the patients when doctors must pursue expensive defensive medicine 
rather than doing what they think is right. No one can think it is good 
for places to have doctors leaving the profession in droves because of 
the financial and physiological strains of caring for people under 
current malpractice realities.
  The bottom line is that the failure of the medical liability system 
is compromising patient access to care. More than half of Texas 
physicians say that they are considering early retirement due to 
skyrocketing insurance premium, and nearly one-third are reducing the 
kind of services they provide.
  Spiraling medical liability insurance premiums are forcing many 
hospitals to consider difficult decisions from cutting services to 
closing clinics. Some hospitals find it difficult to appropriately 
staff emergency departments, recruit and retain physicians in high-risk 
specialties. Where is the victory for patients in that scenario?
  This situation is further magnified in rural communities where there 
are fewer hospitals and health care professionals. These hospitals and 
clinics already operate on narrow profit margins, and skyrocketing 
medical liability insurance push them closer to the brink of closure.
  Ignoring the litigation problems we have now is a recipe for 
disaster. Many States, like my own, are already on the precipice of 
disaster, especially in fields like obstetrics.
  It is for these reasons I join my fellow colleagues as original 
cosponsor of the HEALTH Act of 2003. The bill is not perfect. It can be 
improved but it will not be improved if it is defeated today.
  I urge my colleagues, especially those who represent rural America, 
to support H.R. 5, which will have a chance of stabilizing our Nation's 
shaky medical liability system.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield 1 minute to the 
distinguished gentleman from Rhode Island (Mr. Langevin), who has faced 
many issues that deal with the needs of hospitals and his own 
constituents and good health care, and I thank him for his leadership.
  (Mr. LANGEVIN asked and was given permission to revise and extend his 
remarks.)
  Mr. LANGEVIN. Mr. Speaker, I thank the gentlewoman for yielding me 
the time.
  Today, I rise in strong opposition to H.R. 5, the HEALTH Act, because 
this unhealthy act would severely limit the ability of patients to 
bring suits and

[[Page H1843]]

seek appropriate damage awards while failing to require insurers to 
lower their rates once the so-called reforms are in place. This 
misguided measure would unfairly impact women, low income families and 
children or have absolutely no impact on the affordability of 
malpractice insurance coverage.
  Proponents of this legislation claim that it contains the right cure 
for the medical malpractice liability crisis. This elixir is nothing 
more than a placebo that will not lead to safer medicine, but rather 
protect egregious medical malpractice behavior.
  Though not a victim of medical malpractice, the $250,000 cap in this 
legislation could never compensate me for what I lost when I became 
paralyzed.
  For these reasons, I would strongly urge my colleagues to oppose the 
underlying bill and to support the Democratic alternative, which would 
allow patients to seek redress while providing relief to physicians and 
hospitals in need while holding insurance companies more accountable.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the 
distinguished gentleman from Georgia (Mr. Scott).
  Mr. SCOTT of Georgia. Mr. Speaker, I thank the gentleman very much 
for yielding that time.
  I am very delighted to stand before a distinguished House of 
Representatives to make this plea.
  I support this measure. I come from Georgia and represent a new 
Congressional district that represents one of the fastest growing areas 
in this country. It is the 13th Congressional District. I am here 
because of that growth, and I am also here to tell my colleagues that 
there is no greater pressing issue facing my district and the people of 
Georgia than this health care crisis that we are faced with today in 
medical liability insurance.
  Our doctors are suffering immensely, not only in terms of having to 
cut back on the quality of services that they have to offer but also in 
our medical schools, where they are preparing our doctors for the 
future. Many of the medical schools in my State are saying now that 
many of the students are having second thoughts about even coming into 
the medical profession; 17.8 of the 2,800 physicians in Georgia are 
already reporting that they are contemplating, contemplating cutting 
back in their critical services for at-risk procedures, and nearly 2 
percent have even indicated that if things do not change they are 
moving out of the State of Georgia.
  I think we all know that Georgia is one of 18 States that has the 
highest, most significant medical malpractice insurance premium costs, 
and it is costing our State dearly. I am here to speak for those 
doctors and the dentists and the hospitals in that 11-county area that 
I represent around the City of Atlanta that is faced with this crisis, 
and I hope that this Congress will hear us as we cry out in Georgia on 
behalf of our physicians, our dentists, all of our health care 
providers, give us some relief.
  I know this H.R. 5 before us is not a perfect bill. Nothing is 
perfect. Who amongst us or what amongst us is perfect? But it is a 
start. It is a beginning, and it is not incumbent upon us to complete 
the task, but neither are we free to desist from doing all we possibly 
can. That is what the American people are expecting of us.
  Take this first step. Let us move this process forward. When it gets 
to the Senate we can work to perfect it even better. I urge my 
colleagues' vote on this very important matter, and let us bring better 
health care to our people of Georgia and the Nation.
  I am here representing the patients, doctors, hospitals, and health 
care providers in the 13th Congressional District in Georgia. This is a 
new district, which encompasses parts of eleven counties due to the 
tremendous growth in this part of the state. It is also a diverse 
district, including county, regional, and private hospitals, several 
health care facilities, and hundreds, if not thousands of physicians 
and dentists, and other health care professionals. Georgia has been 
designated as one of 18 states facing a medical liability crisis and 
since Georgia's health care industry is being threatened by this 
crisis, I have decided to support the patients . . . and the doctors . 
. . and the hospitals . . . by supporting H.R. 5.
  Earlier this year, the Georgia Board for Physician Workforce, the 
state agency responsible for advising the Governor and the Georgia 
General Assembly on physician workforce and medical education policy 
and issues, released a study showing the effects of the medical 
liability crisis on access to health care for Georgia's patients. For 
example, the study shows that 17.8 percent of physicians, more than 
2,800 physicians in Georgia, are expected to limit the scope of their 
practices which is by far the largest effect of the medical liability 
insurance crisis on access to medical care. These physicians are 
expected to stop providing high risk procedures in their practices 
during the next year in order to limit their liability risk. Nearly 1 
in 3 obstetrician/gynecologists and 1 in 5 family practitioners 
reported plans to stop providing high-risk procedures, indicating that 
access to obstetrical care may be significantly reduce during the next 
year as a result of the medical liability insurance crisis.
  In addition, nearly 11 percent or 1,750 physicians reported that they 
have stopped or plan to stop providing emergency room services. 630 
physicians plan to stop practicing medicine altogether or leave the 
state because of high medical malpractice insurance rates. About 13 
percent of doctors reported that they had difficulty finding 
malpractice insurance coverage. In fact, at one particular Georgia 
hospital, the hospital could not give credentials to a surgeon and add 
that physician to its staff because the surgeon could not afford to buy 
medical malpractice insurance. In another instance, an obstetrician-
gynecologist had to close his Georgia practice and work for a health 
care agency because he could not afford to buy medical malpractice 
insurance. What happens to the patients that his hospital could have 
treated but now it cannot because it does not have the surgeons that it 
needs? What happens to the mothers who need a doctor to provide pre- 
and post-natal health care but cannot find one because doctors are 
leaving the profession due to the high cost of medical malpractice 
care?
  I support H.R. 5 because doctors, hospitals, and the health care 
industry are caught in the middle between insurance companies and 
lawyers. Doctors are being squeezed by their medical malpractice 
insurance premiums and by the high amounts being awarded to injured 
patients. Doctors need to see results; they need to know that if this 
bill becomes law that their insurance premiums will go down. The 
message must reach the insurance companies that premiums have to go 
down so that the medical profession can survive and access to health 
care is improved. The health care industry must have relief and this 
bill, although not the final answer is the first step in addressing the 
problems that affect doctors and the health care industry.
  We have to address the issue of medical malpractice insurance and the 
extremely high cost of health care. We have to do something. This bill 
is not the complete answer. It is not the final answer. It is not the 
best answer but it is a start. We do have to do something and we have 
to do it now. In 2000, Georgia physicians paid more than $92 million to 
cover jury awards. That amount was the 11th highest in the nation 
despite the fact that Georgia ranks 38th in total number of physicians 
in the United States. Forty percent of the state's hospitals faced 
premium increases of 50% or more in 2002. St. Paul, the state's second 
largest insurance carrier, stopped selling medical liability insurance 
last year. Remaining insurers have reportedly raised rates for some 
specialties by 70 percent or greater. Some emergency room physicians, 
OB-GYNs and radiologists have not yet found a new carrier.
  In addition, Georgia is heavily dependent on other states to train 
physicians. Approximately 70% of participating physicians in Georgia 
completed training in another state. High costs of medical malpractice 
liability insurance may reduce the attractiveness of Georgia as a 
location for medical practice. High professional liability insurance 
costs are a significant financial problem for teaching hospitals, 
reducing the already limited funding available for faculty, residents, 
and other medical education costs. The high cost of medical malpractice 
insurance for doctors and hospitals harms mostly those communities who 
serve minorities and low income patients. The physicians and hospitals 
who depend on Medicare reimbursements and who serve the 44 million 
uninsured Americans everyday cannot afford to pay higher insurance 
premiums. We need to ensure that these communities have access to 
quality health care and the best physicians or the health disparity 
that currently exists will continue to deepen and create a 2 tier 
health care system. We must do something now. We must support the 
patients who cannot speak for themselves. We must support our doctors 
and hospitals and we must pass relief for them today.
  It is important for the House to pass a bill that can go to the 
Senate for consideration. I hope to perfect the bill even more as it 
moves through the legislative process. It would be a mistaken not to do 
anything. In fact, I have never seen a problem solved by doing nothing.
  We must help doctors, physicians and dentists, hospitals, other 
health care providers,

[[Page H1844]]

and American patients who are suffering in untold ways. Immeasurable 
damage is occurring in our nation's health care delivery system because 
of the high cost of medical malpractice insurance. With the passage of 
this bill, we are sending a clear and salient message to the insurance 
industry, which sets the premium rates for medical malpractice 
insurance and that message is: Bring Down the Cost of Medical 
Malpractice Insurance for Physicians and Hospitals.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield 1 minute to the 
gentleman from Massachusetts (Mr. Tierney), an individual who has stood 
firm on the rights of patients, the rights of victims.
  Mr. TIERNEY. Mr. Speaker, I thank the gentlewoman for the time, and 
with due respect to our colleagues that have spoken on the other side 
of this issue, I want to say that we all understand the issues that are 
here and we understand the impact that premiums have on doctors, but it 
is a shame that we have to choose a vehicle in this bill that pits 
doctors against victims of malpractice.
  The doctors that come into my office understand that if there is an 
error made they want the patient to be compensated. There is no offer 
in this bill to give us a system better than the jury system. There is 
an arbitrary amount set that even doctors, when they look at it, 
understand that there is not nearly enough to fully compensate people.
  This is simply an insurance company bill, an HMO bill, a prescription 
drug manufacturing bill that will limit their liability, and in order 
to try to push it through, pits doctors, well-intended doctors, against 
patients, victims.
  The fact of the matter is this legislation should be looking at ways 
to weed out undeserving suits so that doctors are not exposed to them, 
while making sure that we preserve a way for people that are injured to 
get their full compensation in a fair manner. We have to also add into 
that premium control because the insurance companies simply are not a 
well-run organization, and that is where the answer is for doctors, 
improve that with insurance reform.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Indiana (Mr. Pence).
  Mr. PENCE. Mr. Speaker, I rise in strong support of the Help 
Efficient, Accessible, Low-cost, Timely Healthcare Act of 2003.
  As I rise today, in the midst of a contentious debate, Mr. Speaker, I 
think of my family and my parents. I think of the good health that God 
has so mercifully given our family over the years. I think about this 
great country of ours and the cutting-edge research of universities and 
our hospitals, like those in Muncie and Anderson and Richmond, Indiana, 
that I serve here in Washington.

                              {time}  1330

  We undoubtedly have the best health care system in the world, the 
envy of other nations. Yet, Mr. Speaker, the costs of health care are 
rising so much so, to the point where constituents of mine, like Gary 
Miller of Portland, Indiana, are in fear of losing access to health 
care due to its affordability. Gary Miller just called my office this 
morning as we began the debate on this bill to register his concern 
about the rising cost of health care in America. Well, I am here today, 
Mr. Speaker, to tell people like Gary Miller that help is on the way.
  Physicians in this country are some of the finest people you will 
ever meet. It takes a special heart of compassion to help people that 
are hurting physically day in and day out. And no well-meaning 
compassionate physician, Mr. Speaker, should be forced to close the 
door of his or her practice just because they cannot afford to pay 
health care premiums caused by frivolous litigation. Even the most 
well-meaning trial lawyers in the country are filing litigation that is 
driving health care premiums through the roof.
  The Good Book tells us: ``You shall not muzzle the ox while it treads 
out the grain.'' And today I say to my colleagues, it is time to take 
the muzzle off physicians in this country and allow them to practice 
medicine and continue to heal our land. It is time to free doctors from 
the fear of bankruptcy and potential limitless litigation that 
currently hurts patients by causing doctors to engage in defensive 
medicine.
  Mr. Speaker, I urge my colleagues to vote ``yes'' on this bill so 
people like Gary Miller do not have to live in fear of losing access to 
health care again. I urge a ``yes'' vote so we can get this country 
back on the road to affordable and available health care for all 
Americans.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I yield 1 minute to the 
distinguished gentleman from Washington (Mr. Inslee), who knows what it 
is like to have victims denied economic damages under this legislation.
  (Mr. INSLEE asked and was given permission to revise and extend his 
remarks.)
  Mr. INSLEE. Mr. Speaker, I think it is fair to say that this bill 
itself is a case of legislative malpractice. It is legislative 
malpractice because it will not deliver the goods to doctors in a 
reduction of their premiums because there is an outright total and 
utter failure to deal with insurance reform, which the evidence has 
shown is necessary to get a reduction in premiums.
  We ought to listen to the story of a 23-year-old lady named Jennifer, 
a newlywed in Washington, who went in for a simple medical test and was 
told she had a rare form of cancer. She had an extended period of 
chemotherapy, she had a hysterectomy, and they then took out part of 
her lungs. She went through years of medical procedures and the test 
was faulty. She never had cancer.
  Now, I do not know what the right dollar figure is for a woman's loss 
of the ability to bear children, but I know it is not $250,000. I know 
it is not what Ken Lay earned in about 2\1/2\ weeks, and I know that 
that decision should be made by 12 citizens sitting in a jury box 
rather than people answering to special interests in the United States 
Congress.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute.
  Mr. Speaker, I think there is a little bit of confusion around about 
the noneconomic damage limit. There is a specific provision in H.R. 5 
that says no provision of this act shall be construed to preempt any 
State law whether effective before, on, or after the date of enactment 
of this act that specifies a particular amount of compensatory or 
punitive damages or the total amount of damages in a health care 
lawsuit, regardless of whether or not such monetary amount is greater 
or lesser than that that is provided under this act.
  Now, every one of the 50 States is free to adjust the $250,000 limit 
on noneconomic damages upwards or downwards by enactment of the State 
legislature. My State limits it at $350,000. This is not touched by the 
HEALTH Act whatsoever. So if anybody thinks that this act is a 
straitjacket, the legislature is free to change it.
  Mr. Speaker, I yield 2 minutes to the gentlewoman from Connecticut 
(Mrs. Johnson).
  Mrs. JOHNSON of Connecticut. Mr. Speaker, I thank the gentleman for 
yielding me this time, and I rise in strong support of this 
legislation.
  Yesterday, on this House floor, we passed legislation that will 
reduce medical errors by enabling hospitals and other providers to 
develop systems that identify and present errors. In addition, it will 
enable us to build an interoperable system of technology that will, for 
example, eliminate mistakes in filling prescriptions. So yesterday we 
took a giant step forward toward reforming the very systems that will 
improve the quality of care we deliver to the people of America and, at 
the same time, reduce costs of health care.
  Today, we need to pass this malpractice reform bill because, again, 
it will reduce costs by eliminating millions of defensive practices 
that have developed in our system simply for the purpose of enabling a 
physician to defend himself in court. By eliminating those defensive 
actions, we not only reduce costs but we will improve the quality of 
care patients have available to them.
  It is ironic that when we are in a period of rapid change in 
medicine, where medical science is moving us toward ever-more 
sophisticated ways of diagnosing and treating illness, we are also 
reducing access to care through a liability system that cannot 
distinguish between error in a complex era and malpractice. So we are 
at the same time improving the quality of health people can get and 
denying them access to that care.

[[Page H1845]]

  Ask any woman who has a high-risk pregnancy how hard it is to find an 
obstetrician who will take a woman with a high-risk pregnancy because 
of the cost of malpractice insurance. Talk to those doctors who are 
leaving practice or who are choosing to no longer do certain high-risk 
operations and procedures in order to keep their malpractice costs 
within some kind of reasonable bounds. Talk to those people out there 
in the real world who cannot see enough new patients to pay their 
gigantic malpractice preimum increases, and you cannot help but 
conclude that malpractice costs have gotten so out of control, they are 
now denying access to people in America to advanced health care.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I wish this bill would help 
cure that problem.
  Mr. Speaker, I yield 1 minute to the gentlewoman from California (Ms. 
Linda T. Sanchez), one of our newest Members, and a new member on the 
Committee on the Judiciary, who we are very proud to have because she 
has been a real fighter for patients' rights.
  Mr. Speaker, I ask unanimous consent that the gentleman from 
Massachusetts (Mr. Delahunt) be allowed to manage the balance of the 
time on the minority size.
  The SPEAKER pro tempore (Mr. Simpson). Is there objection to the 
request of the gentlewoman from Texas?
  There was no objection.
  Ms. LINDA T. SANCHEZ of California. Mr. Speaker, I thank the 
gentlewoman from Texas for yielding me this time, and today I rise in 
opposition to H.R. 5.
  There is no doubt that most Americans have real problems accessing 
affordable health care in this country, and we need to find a solution. 
However, H.R. 5 is a deplorable bill. It is the most simplistic method 
for addressing problems that we are experiencing with our medical 
community. It is akin to trying to put out a forest fire with a squirt 
gun.
  Placing a cap on a victim's recovery will not magically keep medical 
malpractice insurance rates from rising. It will not keep trauma 
centers from closing. It will not keep specialists from practicing in 
their areas. H.R. 5 simply restricts injured patients' access to 
justice. It is modeled after a California law affectionately known as 
MICRA.
  As a representative from California, I happen to know a lot about 
MICRA. MICRA's caps on pain and suffering damages have not reduced 
insurance rates for doctors in my State, but rather it took Prop 103, 
an insurance reform initiative, to stabilize the rates there.
  H.R. 5 without insurance reform is meaningless, and I urge a ``no'' 
vote.
  Mr. DELAHUNT. Mr. Speaker, would the Chair indicate how much time is 
remaining?
  The SPEAKER pro tempore. The gentleman from Massachusetts (Mr. 
Delahunt) has 3 minutes remaining, and the gentleman from Wisconsin 
(Mr. Sensenbrenner) has 2 minutes remaining.
  Mr. DELAHUNT. Mr. Speaker, it pleases me to yield 1 minute to the 
gentleman from Ohio (Mr. Ryan), a new Member and someone we are 
particularly proud of.
  Mr. RYAN of Ohio. Mr. Speaker, I thank the gentleman for yielding me 
this time.
  Mr. Speaker, we know that the premiums are high, and we know the 
doctors are suffering; but this bill is not going to address the 
problem. And I would like to just take a minute, Mr. Speaker, to point 
out some of the inconsistencies from the majority party, the party that 
says we need to give all the power to the States. In this bill they are 
taking power away from the States. This is the party that says we are 
for individual responsibility, unless that individual is in the jury 
box, then we do not want to give it to them. This is the party that is 
for less government and less regulation, but at the same time they are 
putting price controls on attorneys. That is not free market.
  Like a leading malpractice insurer in California said, I do not like 
to hear insurance company executives say it is the tort system. It is 
self-inflicted. That, in this bill, is not going to address that 
problem.
  Mr. Speaker, I am afraid that all the faces and the names have turned 
to numbers in Washington, DC. This is not the answer. Real people are 
going to get hurt. We would like to welcome everybody back to the era 
of caveat emptor, or buyer beware.
  Mr. DELAHUNT. Mr. Speaker, I yield 1 minute to the gentleman from 
Texas (Mr. Sandlin), the chief deputy whip of the Democratic Caucus.
  Mr. SANDLIN. Mr. Speaker, somebody in this Chamber needs to stand up 
for the doctors and somebody needs to stand up for the hospitals. 
Malpractice premiums are choking America's physicians, and H.R. 5 is 
nothing but a sham because H.R. 5 does not mention one time, from front 
to back, soup to nuts, does not ever even mention malpractice premiums. 
We need to do something about those premiums for the doctors. We need 
to do it now. We need to do it today. H.R. 5 will not do it.
  And how about frivolous lawsuits? Frivolous lawsuits need to be 
ended. If a suit is filed with no basis in law or in fact, it should be 
dismissed at the cost of the plaintiff and the plaintiff should be 
sanctioned. But what does H.R. 5 says about frivolous lawsuits? It does 
not say one thing. That is a shame. That is outrageous.
  We are only talking about benefits for insurance companies. We are 
talking about caps. The only people protected are insurance carriers. 
The only people celebrating today are executives in tall buildings 
owned by insurance companies.
  This is not good for doctors, it is not good for hospitals, it is not 
good for patients. Let us stand up for them. Let us do the right thing.
  Mr. DELAHUNT. Mr. Speaker, I yield 1 minute, the balance of my time, 
to the gentleman from New York (Mr. Nadler), who serves admirably on 
the Committee on the Judiciary.
  Mr. NADLER. Mr. Speaker, one thing that has not been remarked upon is 
that the cap of $250,000 for pain and suffering, whether a baby is 
killed, a person is paralyzed for life, an old person is killed, 
regardless, aside from economic damages, they can only get $250,000. 
But that cap is not inflated. When that was first written in 1975 in 
California, $250,000 was worth what today is worth $1.6 million. The 
$250,000 now is worth what was then worth less than $39,000.
  If there is no inflater put into this bill, and the Republicans in 
committee voted against it, except a couple of them, and they would not 
let me bring it onto the floor, then what we are really saying is 
people should get no recovery at all for pain and suffering and 
lifelong anguish and death and dismemberment. None. Only for lost 
wages, if they are workers, or for medical bills. Because eventually 
that is what this $250,000 will be worth, next to nothing.
  Finally, on frivolous lawsuits. On contingency fees you cannot bring 
frivolous lawsuits, which is why this bill does not mention it and why 
talking about it is so dishonest.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my 
time.
  Mr. Speaker, I have been listening intently to this debate. Many of 
my friends on the other side of the aisle apparently have not been 
listening at all to the debate, and I just want to rebut a couple of 
their points.
  First, they say this will not reduce insurance premiums. They were 
right in that it will not reduce insurance premiums by law, but the CBO 
says that overall insurance premiums will be reduced by 25 to 30 
percent and more in States where there is a greater problem. That is 
the market working. That is the economics working on it. But those 
premiums are not going to be reduced if the current law stays where it 
is.
  Then we have heard time and time again about $250,000 in noneconomic 
damages. This bill gives each State the right to adjust that amount to 
a greater or a lesser amount. So the State legislatures can make a 
determination on whether $250,000 is proper or not. If they fail to do 
so, then the $250,000 in the HEALTH Act is the law for that State.

                              {time}  1345

  Finally, we have heard ``Physician, heal thyself,'' and that a small 
number of physicians are responsible for the vast majority of 
malpractice claims. Let me say that the current tort liability system 
provides a huge disincentive for doctors to talk about problems

[[Page H1846]]

amongst themselves and to get the collective benefit of a number of 
doctors' opinions on how to treat a patient.
  There has been a study that asked, ``Generally speaking, how much do 
you think the fear of liability discourages medical professionals from 
openly discussing and thinking about ways to reduce medical errors?'' 
Mr. Speaker, 59 percent of the physicians replied, ``A lot.''
  If we pass this law, we will be seeing more collectively doctors' 
brains put together to deal with difficult cases, to talk about 
mistakes and make sure they do not happen again. This bill should be 
passed. I urge an aye vote on the bill.
  The SPEAKER pro tempore (Mr. Simpson). Without objection, the 
gentleman from Ohio (Mr. Brown) will control the time for the gentleman 
from Michigan (Mr. Dingell).
  There was no objection.
  The SPEAKER pro tempore. The Chair recognizes the gentleman from 
Louisiana (Mr. Tauzin).
  Mr. TAUZIN. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise today in strong support of H.R. 5. I am joined by 
every major medical association representing the doctors of America 
across this country and across the very specialty organizations that 
are so deeply affected by the rising cost of medical malpractice 
insurance that many of them are leaving the practice that they were 
trained to do.
  I thank the gentleman from Pennsylvania (Mr. Greenwood) and the 
gentleman from California (Mr. Cox) for drafting this legislation. I 
certainly thank the gentleman from Wisconsin (Mr. Sensenbrenner) and 
the staff of the Committee on the Judiciary for working so closely with 
the staff of the Committee on Energy and Commerce to advance the cause 
of this very important bill.
  We will hear many stories today about the victims and how they are 
harmed in the health care system. And, of course, we cannot dispute the 
fact that many doctors make human errors. In fact, yesterday we 
indicated that the To Err Is Human report encouraged us to pass a 
medical errors bill, which we passed yesterday on the floor, which is 
designed to begin sharing information to reduce the number of those 
errors and to make sure that doctors are not hauled into court every 
time they help one another when trying to reduce the number of errors 
in the system.
  We know there are victims of medical errors, but we do not often hear 
about the victims of the medical malpractice system gone awry. They are 
the victims who get denied access to health care in very critical 
moments because some doctor could not get his insurance renewed because 
premiums were too high, some doctor left the practice, some medical 
clinic, some institute closed down in the community, the stories we 
heard from victims yesterday here in Washington, D.C.
  One wife and children were here talking about how the husband and 
father was in a horrible automobile accident and went to the hospital, 
only to find out the neurosurgeon who should have been there to help 
him had lost coverage 4 days earlier and was no longer at the hospital 
to service them. That gentleman suffers massive brain disabilities as a 
result of not having someone there to serve him.
  Many pregnant women look forward to a natural childbirth, only to 
find out that doctors are increasingly recommending C-sections, and 
doctors who deliver babies are getting out of the business because they 
cannot afford the skyrocketing liability coverage policies that they 
need.
  60 Minutes did a piece on one of those doctors who gave his whole 
life, his career to delivering babies. He cannot do it any more. He is 
doing prenatal work now because he cannot afford the awful cost of 
liability coverage.
  So not only are these doctors harmed because they cannot practice the 
professions they love and worked so hard to learn, but the patients 
that come to them are increasingly being harmed. Doctors are moving 
from one community to another, moving to States that have liability 
protection because they have learned that they cannot afford the 
liability coverage in the community they were raised and educated in. 
They have to move from Mississippi to Louisiana, for example, and 
Mississippi loses the availability of those good physicians.
  Those hidden victims, patients who cannot get care, who suffer from a 
lack of access to health care, are just as real, just as injured as any 
victim who has been injured by medical error or malpractice in this 
country. We have to do something about this. It is a broken system. 
When the health care system breaks down, it is our responsibility to 
make sure that we fix it, and we fix it so it does not just work in 
California or Louisiana, it works across America.
  Our families are spread all over. My children are living in all kinds 
of States. I want them to be able to walk into a hospital and find 
somebody ready to serve them. I do not want them to walk into a 
hospital in Mississippi and find out a needed doctor is not there. That 
is the task we have before us today. As we move this legislation 
forward, we will complete the task we started yesterday, on the one 
hand beginning to cure that awful problem of medical errors within the 
system, errors which produce injury, and recovery is possible under our 
legal laws; and, secondly, to make sure that the legal liability system 
is fixed.
  What are we doing here? We are recommending to the Congress and to 
the Nation nothing more, nothing less than the experience of the great 
State of California, which in 1975 adopted the law upon which H.R. 5 is 
based, a law which has kept liability premiums in California at one-
third the increase level which has been experienced across the country. 
The other side of the aisle have been debating whether this will reduce 
insurance premiums. I tell them, go to CBO. CBO has estimated a 25 to 
30 percent reduction in insurance costs across America if we pass H.R. 
5.
  Mr. Speaker, guess what, my State will not get that benefit. We 
already have the benefit of lower premiums because of reforms like 
this. Those premium reductions will go to States that do not have the 
benefit of a State law like California and Louisiana. Therefore, the 
reductions in premiums are likely to be higher in those States where 
there are no caps on liabilities.
  One final thought. For those Members that are arguing that we are 
somehow capping the entire liability award, we are doing what 
California did with a Democratic governor and a Democratic legislature: 
We are only capping the noneconomic damages. That is the only thing we 
are capping. We are capping it at $250,000, but we are telling 
California and Massachusetts and Louisiana, or any other State in the 
Nation, if they do not like that cap, they can adopt their own cap. 
They can adopt a higher or lower cap. This legislation preserves for 
the States the right to adopt the cap that works for them.
  But this legislation for the first time will say to everyone in this 
country, we are all entitled to have a health care professional 
available to us when we need it who otherwise would not be here because 
of a liability system that is so broken that it drives decent health 
care workers out of business and out of their professions at our loss.
  Mr. Speaker, this legislation has to get passed and has to get passed 
soon. I urge Members to adopt this legislation today.
  Mr. Speaker, I reserve the balance of my time.
  Mr. BROWN of Ohio. Mr. Speaker, I yield myself 3 minutes.
  Mr. Speaker, I want Members on both sides of the aisle to be aware of 
three unanswered questions about H.R. 5. First, if the authors of this 
bill are sure that it will reduce and stabilize medical malpractice 
premiums, why are insurers accountable for producing that result?
  During the medical malpractice debate in Ohio, insurers said they do 
not know whether premiums would come down. During a recent hearing in 
Pennsylvania, the actuary witness said he could not say whether 
premiums would come down. Even Sherman Joyce, President of the American 
Tort Reform Association said, ``We cannot tell you or anyone that the 
reason to pass tort reform would be to reduce insurance rates.''
  We are voting on a bill that overrides State law and undercuts 
compensation for victims of medical malpractice, yet we do not know 
whether medical malpractice premiums will come down. California passed 
tort reform in 1975. Medical malpractice premiums continued to go up. 
Not until California 13

[[Page H1847]]

years later demanded a reduction in premiums with insurance reform did 
the situation improve. Yet insurers have zero, no obligation under this 
bill.
  We are supposed to take it on faith and trust the insurance companies 
that they will pass along the savings. Apparently we cannot trust 
patients, cannot trust juries, cannot trust lawyers, but we can trust 
the insurance industry.
  My second question is: Why is there no single insurance reform in 
this bill? The authors of H.R. 5 refer again and again to MICRA. The 
gentleman from Louisiana (Mr. Tauzin) did, other Members will. MICRA is 
the California law that sets a quarter-million-dollar liability cap. 
Members know it was not MICRA that brought down premiums in California, 
it was insurance reforms 13 years later. Malpractice insurance premiums 
rose 450 percent after MICRA went into effect, and only when California 
established a prereview of rate increases and automatic rollback of 
excessive premiums did the doctors get any relief, yet this bill has no 
insurance reforms, no premium rollback. Why? The insurance industry 
does not like it.
  The third question is if H.R. 5 is a response to spiking medical 
malpractice insurance premiums, something we want to do something about 
and our substitute bill does, why does this bill shield HMOs, shield 
drug companies, shield medical device manufacturers, and shield 
insurance companies from liability? It might have something to do with 
the fact that those industries have given tens and tens and tens of 
millions of dollars to Republican candidates. The majority bristles at 
the notion that the curious omissions from this bill have something to 
do with helping their friends, the drug companies, the insurance 
industry, the HMOs and the medical device industry.
  Mr. Speaker, if the majority wants Democrats and the American public 
to stop accusing them of catering to their corporate friends, then 
maybe the majority should stop catering to their corporate friends. 
Then we could write a bill that will help doctors, then we could write 
a bill that will help patients. This bill simply is not it.
  Mr. Speaker, I reserve the balance of my time.
  Mr. TAUZIN. Mr. Speaker, I yield myself 30 seconds.
  Mr. Speaker, we would not help this debate by arguing that the other 
side is catering to trial lawyers. That is not going to help this 
debate. Let us argue on the facts for a change.
  The gentleman from Ohio (Mr. Brown) may not agree with what happened 
in California, but this is what Senator Feinstein said. ``I believe 
MICRA is the reason rates have gone down.'' That is a California 
Senator talking about her State.
  Mr. Speaker, I yield 2 minutes to the gentleman from Missouri (Mr. 
Blunt).
  Mr. BLUNT. Mr. Speaker, I am pleased to see this bill on the floor 
today. We will hear many reasons today why this is a problem that needs 
to be dealt with but some reason about why is not the time. Now is the 
time to deal with this issue. Now is the time to put patients first, to 
see that our delivery system begins to function again. There are a 
dozen States that are in crisis mode and a dozen others that are about 
to get there.
  The gentleman from Louisiana (Mr. Tauzin) mentioned the people we had 
in town yesterday to talk about the importance of this bill, the two 
families that were here talking about what had happened to their 
families, not because they were in some isolated spot where one would 
assume care would not be available, but care was not available because 
we do not have this situation under control.
  We had one family, a mother, a wife, two teenage children whose 
husband and father is no longer able to care for that family because 
instead of care being available, as it would have been just months ago 
minutes from the accident, care was now available 6 hours later because 
that person had to be moved.
  We had one person talk about her dad in Las Vegas, Nevada, one of the 
fastest growing communities in the country, was in a car accident and 
could not get care because the trauma center had just closed because of 
this problem. That family's father is gone.
  Mr. Speaker, any of us who vote on this legislation today could find 
ourselves, no matter how urban and concentrated the area we are 
traveling to in the next few days would be, in the situation of those 
families.

                              {time}  1400

  Or we can see those we love and care about, no matter how we think 
they would be in imminent contact with health care, find that health 
care was not available because we have not dealt with this problem. 
Today we have a chance to do that. Chairman Greenwood and Chairman 
Tauzin and our friends on the Committee on the Judiciary brought this 
bill to the floor. It is a bill we need to pass today. I am pleased we 
have this opportunity.
  Mr. BROWN of Ohio. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentleman from Michigan (Mr. Stupak), who cares about patients and 
physicians.
  Mr. STUPAK. Mr. Speaker, I thank the gentleman for yielding me this 
time. The majority of our doctors are hardworking and professional and 
serve their patients with the utmost ability. Only a few doctors are 
bad actors who act in negligent or irresponsible ways. But the reality 
is that this bill will do nothing to help doctors. It does not address 
the high insurance rates or the plight of doctors. H.R. 5 is totally 
misguided. It does not address insurance costs for doctors. Instead, it 
caps meritorious lawsuits where a judge or jury has found for the 
victim.
  H.R. 5 puts a cap of $250,000 on noneconomic damages. Many dismiss 
noneconomic damages as pain and suffering and imply that they are less 
important than economic damages. The true definition of noneconomic 
damages are those damages that are real, permanent harms that cannot 
easily be quantified or measured in terms of money, such as blindness, 
physical disfigurement, loss of fertility, loss of a limb, loss of 
mobility, loss of life, or loss of a child. These are horrific losses; 
and under this bill, they are capped at $250,000.
  I offered an amendment to remove the antitrust exemption for 
insurance companies. If this bill is truly designed to address the 
insurance crisis in this country, how is it that it does not contain a 
single provision about insurance? The insurance industry is the last 
industry left in the United States that is not subject to antitrust 
laws. If we really want to bring insurance rates down well, we must 
make insurance companies subject to government regulation and 
competition and subject to our antitrust laws.
  Everyone in this House of Representatives believes that something 
needs to be done about the skyrocketing costs of medical malpractice 
insurance.
  The majority of our Nation's doctors are hard working and 
professional, and serve their patients to the utmost of their ability. 
Only a few--a small minority--of doctors are bad actors, who act in 
negligent or irresponsible ways.
  But the reality is that this bill will not help our nation's 
responsible and hard-working doctors. It does not address the high 
insurance rates or the plight of our doctors. Only the Conyers-Dingell 
motion to recommit will accomplish these goals. I believe that the 
Conyers-Dingell bill is a targeted and positive measure to address 
malpractice insurance in this country.
  H.R. 5, on the other hand, is a boon to HMOs, to drug companies, and 
to medical device manufacturers, who receive the bill's protection from 
damages without any justification. I cannot understand why a bill that 
is supposedly designed to help our Nation's doctors would include these 
other groups--except to provide them with an unjustified windfall.
  H.R. 5 is totally misguided--it does not address insurance costs for 
doctors--instead it caps those meritorious lawsuits where a judge or a 
jury has found for the victim.
  H.R. 5 puts a cap of $250,000 on noneconomic damages. Many dismiss 
noneconomic damages as being pain and suffering, and imply that these 
are less important than economic damages.
  The true definition of noneconomic damages are those real, permanent 
harms that cannot be easily quantified or measured in terms of money.
  Noneconomic damages include blindness, physical disfigurement, loss 
of fertility, loss of a limb, loss of mobility and the loss of a child. 
These are horrific losses--and under this bill they are capped at 
$250,000.
  And not only are they capped at this amount, but because this bill 
does not even allow an annual adjustment for inflation, each year that 
$250,000 will lose more and more of its value, and be worth less and 
less.
  I offered an amendment at the Rules Committee to allow an adjustment 
for the rate of

[[Page H1848]]

inflation, but my amendment was not made in order. I cannot believe 
that even this small and reasonable adjustment to help victims was 
denied.
  I also offered an amendment to remove the antitrust exemption for 
insurance companies--that too was denied. If this bill is truly 
designed to address the insurance crisis in this country, how is it 
that it does not contain one single provision about insurance rates for 
doctors?
  Democrats offered an amendment to require that insurance companies 
should pass on 50 percent of the amounts that they save as a result of 
this bill to doctors in the form of lower premiums. This would be a 
true way to ensure relief to doctors. Of course, this amendment was 
denied.
  Medical insurers are the only industry left in America that is not 
barred from getting together and setting rates. If we really want to 
bring insurance rates down, we must make insurance companies subject to 
government regulation, to competition, and to antitrust law.
  This bill will do nothing to help our doctors. Statistics have shown 
that even where caps exist, premiums are still inflated.
  For example, my own state of Michigan has a cap in medical 
malpractice cases of $280,000 on noneconomic damages, with some limited 
exceptions.
  Neighboring Illinois has no cap on noneconomic damages in these 
cases. Yet, the average liability premium in internal medicine is \1/3\ 
higher in Michigan than the premium is in Illinois.
  I support our Nation's doctors and I want to help them in the crisis 
they are facing. But voting for H.R. 5 and its misdirected caps will 
not provide that help, and I cannot support this bill.
  Mr. TAUZIN. Mr. Speaker, I am pleased to yield 1\1/2\ minutes to the 
gentleman from Florida (Mr. Stearns), chairman of the Subcommittee on 
Commerce, Trade and Consumer Protection of the Committee on Energy and 
Commerce.
  Mr. STEARNS. Mr. Speaker, I am here to give a clear example from my 
home congressional district, a Dr. Joseph Hildner, a board-certified 
family-practice specialist in Belleview, Florida. He had a patient that 
was overweight and smoked too much. He never followed the doctor's 
advice, missed many appointments all the time, and failed to take blood 
pressure prescriptions. Suddenly the patient gets a heart attack, 
right? Then he sues because he was not cared for. The trial attorney 
simply identified anything that could have been done, declaring that no 
standard care was done for this patient by Dr. Hildner.
  Obviously, Dr. Hildner tried to settle this thing because the doctor 
felt that he would go through long litigation. As it turns out, the 
lawyer was suing well above the amount of money that the insurance 
company had for his patient. This is just an example. So what happens 
to Dr. Hildner? His premiums go from $30,000 to $70,000. How does he 
pay? How do the doctors in this country pay? They start to hustle 
through more patients and more patients. They practice what is called 
defensive medicine; they have all these tests, just simply to protect 
themselves. He admits he is hustling through all these patients like 
cattle. He cannot give them the attention they need. So now he is 
giving unnecessary tests.
  In the end, we need this bill. That is why I am an original cosponsor 
of H.R. 5.
  I rise as an original cosponsor of, and in support of H.R. 5. This 
bill would help curb some of explosive noneconomic damage awards in 
medical liability cases, and resultant soaring malpractice insurance 
rates that lawsuits have been spurring.
  Physicians in my home state of Florida, among other states, are 
already in a state of crisis, as evidenced by the ``walk-out'' earlier 
this year.
  Dr. W. Herman Sessions of the Family Practice Associates in Orange 
Park, FL, wrote to me recently that his practice is considering 
exiting. He wrote,

       I am telling my female patients to get their mammograms 
     this year because I feel that we are not going to be having 
     mammograms read in the state of Florida next year. A 
     radiology friend told me that it was at the last minute that 
     they were able to obtain insurance to read mammograms. He 
     told me that he is not certain that when their policy expires 
     in one year that they will be reading mammograms without some 
     sort of resolution to the liability crisis.
       We have had difficulty recruiting physicians to our 
     hospital because nobody wants to practice in the state of 
     Florida with our liability problem. These physicians are 
     surgeons and surgical subspecialists. Our local neurosurgeon 
     obtained liability insurance on the very last day of the year 
     and he is able to practice for the calendar year of 2003. I 
     asked him what his plans are for 2004. He told me that he 
     will either retire, do strictly office consultation and no 
     surgery, or move to another state.

  And my constituent Johnny Beach from Bell, Florida, a young, married 
University of Florida senior worries about his wife's access to OB/
GYNs.
  Importantly, this legislation rightly does not cap economic damages, 
so that the tort system can continue to protect patients from 
malpractice as intended. I am pleased to cosponsor this bill, and urge 
its passage.
  Joseph Hildner, M.D., a board-certified Family Practice specialist in 
Belleview, FL, writes: ``We had a patient who is an obese smoker. Never 
followed our advice, missed many appointments, failed to fill blood 
pressure prescriptions. Patients suffered a heart attack, then sued for 
failure to arrange a stress test.'' The trial attorney simply 
identified anything that might have been done, declared that to be the 
``standard of care'', threatened to sue for higher than the doctor's 
coverage limits, then settled for less. Even with a 90 percent chance 
of winning, a physician can't take the chance of going to trial and 
losing: the ``excess verdict'' would allow for seizure of his own 
personal assets. So the doctor settles. Actual negligence need not 
occur; an attorney only has to do is allege negligence.
  But citizens of Belleview lose. Dr. Hildner is known for excellent 
clinical outcomes at controlled costs. He says,

       I've always enjoyed the art of medicine in which I get to 
     practice clinical judgment. As a primary care physician, I am 
     a shepherd, getting those who need it expensive high tech 
     care, and protecting those who don't from unnecessary 
     interventions. I'm also known for taking time to listen and 
     explain. I don't have my hand on the doorknob while a patient 
     is trying to talk.

  Last year his insurance premium increased from $30,000 to $70,000. 
How does he pay? Now has to see more patients, and spend less time. 
``I'm now having to talk patients into ``defensive medicine'' tests 
they don't need, just so I can protect myself. I am beginning to hustle 
my patients through like cattle, to see enough to pay the bills. So 
this friendly country doctor known for using clinical judgment, and 
providing efficient, cost-contained, appropriate care, and known for 
taking time, is now talking patients into unnecessary tests (which is 
running up costs), and hustling them through.''
  Pass H.R. 5.
  Mr. BROWN of Ohio. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentleman from New Jersey (Mr. Pallone).
  Mr. PALLONE. Mr. Speaker, I just want to explain how this bill helps 
HMOs and hurts those patients that are victims of HMOs. Many of us for 
the last 4 years on a bipartisan basis tried to push a patients' bill 
of rights that basically would say that if you are denied care by your 
HMO, you can go to an outside maybe administrative agency and then 
finally can go to court and sue because of the denial of care and what 
the consequences of that were and actually get damages from a jury or a 
judge. This bill would kill that.
  In many States, as well as in some Federal courts right now, patients 
have been given the right to sue an HMO, which is exactly what we were 
trying to do here in Congress when we supported a patients' bill of 
rights. But this bill says, no, you are not going to be able to do that 
anymore because it limits your ability to recover noneconomic damages 
as well as punitive damages against an HMO or another private insurance 
company.
  I think there is a great deal of hypocrisy here. There are Members on 
the Republican side of the aisle that have said for years that they 
want to expand victims rights if they have been denied care or hurt in 
some way by an HMO, but they turn around today and they pass this bill 
which they are going to pass which basically limits those victims and 
their ability to sue an HMO even though the State courts and even 
though a lot of the Federal courts are now expanding victims' rights to 
sue.
  What we are doing here is preempting the State law. If a State says, 
as mine in New Jersey says, that you can sue an HMO, this bill comes in 
and says, well, you can do it only under very limited circumstances. 
You cannot come here and say that you care about the victims. You do 
not care about the victims not only because you are putting a cap on 
them of $250,000 but you are not even going to let them sue the HMO in 
a fair way.
  Mr. TAUZIN. Mr. Speaker, I am delighted to yield 2 minutes to the 
gentleman from Florida (Mr. Bilirakis), chairman of the Subcommittee on

[[Page H1849]]

Health of the Committee on Energy and Commerce, who has done such great 
work on this bill.
  Mr. BILIRAKIS. Mr. Speaker, I thank the gentleman for yielding me 
this time. I, of course, rise in support of H.R. 5. I believe that the 
sensible reforms contained in this bill will go a long way toward 
alleviating the medical liability insurance crisis many States are 
facing and will also help prevent future crises from occurring.
  On Tuesday of last week, the Energy and Commerce Subcommittee on 
Health, which I chair, approved H.R. 5, which was subsequently approved 
by the full committee on Thursday. In both cases, approval was by voice 
vote. The severity of the current crisis has necessitated that we act 
now. I would note that our committee has held numerous hearings over 
the past year to explore this issue and consider potential solutions.
  That is why I continue to be disappointed with the rhetoric 
surrounding this debate. As chairman, I had wanted to focus a good deal 
of our last subcommittee hearing on how the insurance industry sets 
medical liability insurance premiums. In fact, the majority invited 
both the American Academy of Actuaries and the Physician Insurers 
Association of America to come testify at our hearing. Unfortunately, 
in spite of all the rhetoric on insurance, unfortunately the minority 
did not invite any insurance witnesses. Instead, they once again played 
politics, including inviting a witness to discuss something called 
Proposition 103, which he claimed is the real reason why California has 
been largely insulated from the current crisis. That struck me as 
somewhat odd, considering that the organizations working to defeat H.R. 
5 never mentioned this ballot initiative during our debate on H.R. 4600 
in the last Congress, even though this initiative passed in 1988.
  What this tells me is that many people would rather play politics 
than work towards a real solution. I respect that some Members may feel 
that it is never appropriate to place any limit on subjective, 
unquantifiable, noneconomic damages regardless of the cost to the 
health care system. However, I do not respect those who will do or say 
anything to derail this process. I am voting for this bill because by 
doing so I am moving us one step closer to a solution. The medical 
community and the patients they serve demand it.
  Mr. BROWN of Ohio. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentleman from Pennsylvania (Mr. Doyle), who has stood up for patients 
and doctors alike.
  Mr. DOYLE. Mr. Speaker, I represent Pittsburgh, Pennsylvania; and in 
the great State of Pennsylvania, doctors are paying way, way too much 
for malpractice insurance. It is a crisis, and they need some immediate 
relief. Unfortunately, the bill we have before us today will do nothing 
to give any doctor in my State any immediate relief. It will not do a 
single thing to reduce frivolous lawsuits. There is nothing in this 
bill that will reduce frivolous lawsuits.
  So, Mr. Speaker, what should we do to address this situation? In 
Pennsylvania, we have just recently last year passed three laws that I 
believe are going a long way to address the problem. Number one, 
Pennsylvania has prohibited venue shopping for oversympathetic jury 
pools. We have established tough sanctions against lawyers who filed 
frivolous suits. We have reformed joint and several liability 
provisions to ensure all liable parties are truly responsible for their 
fair share of the judgment. We have established strict new standards 
for expert witnesses. We have allowed courts to reduce verdict amounts 
if the award will adversely impact access to health care. We have 
imposed a 7-year statute of limitations on filing of claims, and we 
have required insurers to offer patients safety discounts to medical 
facilities with good track records.
  These are the types of reforms that will help deal with the 
situation. Putting a $250,000 cap on noneconomic damages 
disproportionately hurts poor people. These damage awards, they are not 
the cause of the problem. Two-thirds of patients who file claims 
receive nothing. Only 7 percent of these cases go to court. Let us not 
cap damages on people who can least afford it. Let us let States like 
Pennsylvania enact meaningful reforms like we have already done.
  Mr. TAUZIN. Mr. Speaker, I am delighted to yield 3 minutes to the 
gentleman from Pennsylvania (Mr. Greenwood), chairman of the 
Subcommittee on Oversight and Investigations of the Committee on Energy 
and Commerce and the author of this legislation.
  Mr. GREENWOOD. Mr. Speaker, I thank the gentleman for yielding me 
this time. I would like to respond to some of the arguments made by the 
opponents. First off, there has been this constant drumbeat of 
accusations that somehow this legislation does not provide the care and 
the coverage for those who are harmed. Let us say it for the 15th time: 
this bill allows anyone who is injured by a doctor or a hospital or any 
other health care entity the ability to recover every single penny of 
economic damages, all their medical care, all their lost wages, 
lifetimes of lost wages. There are cases over and over again in the 
State of California that has this legislation in place where there are 
awards of $50 million, $80 million, et cetera. Plenty of money for the 
victims to cover their needs.
  Secondly, there is this drumbeat that this is really about the 
insurance industry. Why are we not regulating the insurance industry? 
Listen carefully. Sixty percent of the physicians in this country buy 
their medical liability insurance from physician-owned companies. Those 
companies exist for one purpose, and that is to keep the price of 
medical liability insurance low. They do not gouge their customers; 
they do not collude with one another, because they are the doctors. 
They are not doing anything to raise rates or to hold rates up high. 
They are doing everything to push rates down. Guess what? They cannot 
offer lower premium prices than commercial insurers. So if your whole 
thesis here is, oh, those insurance companies, they are overcharging, 
they are gouging, they are colluding, explain to me, I beg you, stand 
up and explain to me why it is that the physician-owned companies are 
in the same boat and are not able to provide affordable coverage?
  The gentleman from New Jersey (Mr. Pallone) talked about shielding 
pharmaceutical companies, shielding HMOs, device companies from 
lawsuits. This bill does nothing of the kind. If a pharmaceutical 
company is guilty of making bad medicine or overcharging medicine, they 
will be liable for millions of dollars, untold millions of dollars for 
economic damages. There is no shield whatsoever.
  Then finally let me say this. We have heard over and over again from 
the opponents of this legislation, it does not really help doctors. Let 
us see who supports it: the American Medical Association, the American 
Association of Neurological Surgeons, the American Association of Nurse 
Anesthetists, the American Association of Orthopedic Surgeons, the 
American Association of Thoracic Surgery, the American Association for 
Vascular Surgery, the American College of Cardiology, the College of 
Chest Physicians, the College of Emergency Physicians, the College of 
Nurse Midwives, the College of Nurse Practitioners, the California 
Medical Association. Every doctors' group in America supports this 
legislation.
  So do not stand up with a straight face, opponents of this 
legislation, and tell us that the doctors are not smart enough to 
figure out that this is exactly the prescription that they need.
  Mr. BROWN of Ohio. Mr. Speaker, understand that physician-owned 
companies are still companies that practice business the way other 
businessmen and women do.
  Mr. Speaker, I yield 2 minutes to the gentleman from Michigan (Mr. 
Dingell), the ranking Democrat on the full Committee on Energy and 
Commerce.
  (Mr. DINGELL asked and was given permission to revise and extend his 
remarks.)
  Mr. DINGELL. I thank the gentleman for yielding me this time.
  Mr. Speaker, we are witnessing a sorry spectacle today. Not only are 
we denied opportunity to properly debate but also to properly amend. 
And the doctors are being herded along in front of the HMOs and the 
insurance companies, because those insurance companies and HMOs are the 
beneficiaries of this legislation, not the doctors.
  The Republican bill does nothing to limit frivolous lawsuits. It 
does, however, limit responsible lawsuits. The

[[Page H1850]]

Republicans would restrict the rights of doctors by protecting HMOs, 
not by assuring that HMOs are subject to the discipline of the court.

                              {time}  1415

  Republicans limit awards for meritorious claims. Republicans impose 
hurdles on aggrieved patients.
  This is an outrageous piece of legislation. It is brought to the 
floor under outrageous proceedings. Thirty-one Members have asked for 
opportunities to offer amendments. They were denied. We are not even 
given a chance to offer a substitute to this legislation.
  I can understand how my Republican colleagues are all looking 
sheepish and why they are thoroughly embarrassed. I would be 
embarrassed if I were engaged in this kind of practice myself, because, 
quite honestly, it is shameful, and it is totally inconsistent with the 
practices, rules and traditions of the House of Representatives. It is, 
indeed, a blow to the heart of the legislative process and responsible 
legislating. It is also a bite on the throat of the right to free 
debate and the right to amend and perfect legislation.
  One of the important responsibilities of this body is to be able to 
amend legislation, for the House to work its will, for us to represent 
our people, for them to hear not only responsible debate, but to know 
that their will is heard and that their concerns are met, not only by 
debate, but by proper use of the amendment process. That is denied to 
us today, and I say to my Republican colleagues, shame on you. You have 
brought shame upon the House of Representatives. You have embarrassed 
me. I hope you have embarrassed yourself.
  Mr. TAUZIN. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I only want to point out to the House that the 
substitute offered by the gentleman from Michigan (Mr. Dingell) in 
subcommittee and full committee was defeated on a bipartisan vote in 
full committee of 30 noes to 20 yeas.
  Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from California 
(Mr. Cox).
  Mr. COX. Mr. Speaker, I thank the gentleman for yielding me time.
  We are here today because patients are losing, many have lost, access 
to care. People are dying as a result of not being able to see doctors 
in emergency rooms. Doctors who have never been sued are quitting the 
practice of medicine, and talented young men and women are not seeking 
careers in medicine because of what is happening.
  Today there are billionaire lawyers. There is no such thing as a 
billionaire doctor. All of these billionaire lawyers have made their 
money in health care lawsuits.
  The opponents of this legislation would have us believe that the 
phenomenon of billionaire lawyers is a reflection of social justice, 
but it is not. This money is coming out of our health care system. It 
is taking doctors out of emergency rooms. It is preventing women who 
are trying to deliver babies from having OB/GYNs available. There are 
not enough neurosurgeons to provide emergency care.
  In Florida, the Orlando Regional Medical Center, which serves 33 
counties, is planning to close its Level 1 trauma unit this month. 
Patients with serious head and neck injuries will have to be diverted 
to other hospitals. But in Florida those other hospitals in Tampa and 
Jacksonville, those trauma units are already overcrowded. The reason 
patients, particularly poor patients in Medicaid and in emergency 
rooms, cannot get care is the liability crisis caused by runaway 
lawsuits.
  Doctors and hospitals now spend more on liability insurance than on 
medical equipment. The Chicago Tribune reports that in Illinois 
liability insurance premiums are rising 100 percent or more for high 
risk specialties. Our intention is that no more patients are denied the 
care that they need because the doctors who wish to serve them cannot 
afford liability insurance.
  The solution, H.R. 5, the HEALTH Act, which I have introduced in this 
Congress since 1993 and am now coauthoring with the gentleman from 
Pennsylvania (Mr. Greenwood), is based on California's law, written by 
a Democratic legislature and signed by Jerry Brown, a Democratic 
Governor.
  We have these reforms in our State, and they work. California's 
medical liability insurance premiums in constant dollars have fallen by 
more than 40 percent, while the rest of the country is in crisis. 
Injured patients in my State of California receive compensation more 
quickly than in the U.S. as a whole. Injured patients receive a greater 
share of the recoveries in lawsuits. California no longer suffers from 
the flight of doctors and needed services that we have seen in so many 
other parts of the country.
  By passing this legislation, we will bring these California reforms 
nationwide, making health care more accessible for patients who are 
today denied care. I urge this House to pass the HEALTH Act, H.R. 5.
  Mr. BROWN of Ohio. Mr. Speaker, I yield such time as she may consume 
to the gentlewoman from Missouri (Ms. McCarthy), a member of the 
committee and an advocate for patients.
  (Ms. McCARTHY of Missouri asked and was given permission to revise 
and extend her remarks.)
  Ms. McCARTHY of Missouri. Mr. Speaker I rise in opposition to H.R. 5 
and in favor of the motion to recommit.
  Mr. Speaker, I rise today in opposition to H.R. 5, a measure which 
restricts the rights of legitimately injured patients harmed by medical 
malpractice, restricts the rights of doctors in favor of insurance 
companies and does nothing to curtail frivolous law suits nor restrains 
insurance rates.
  In addition to trampling on patient rights, this bill tramples on 
state's rights. H.R. 5 takes the constitutional concept of federalism 
to the extreme by severely limiting the traditional rights of 
plaintiffs seeking damages, a matter that should not be decided by 
Congress because it proposes tort reforms that are traditionally, and 
possibly constitutionally, areas to be decided by state legislatures 
and state courts.
  Twenty-five states including Missouri cap non-economic damages to 
victims. The average Missouri award is $81,000 well below the $250,000 
cap presented in H.R. 5, as well as Missouri state law. Twenty states 
courts have ruled that caps on damages are unconstitutional. H.R. 5 
enacts a statute of limitations which 18 state courts have ruled 
unconstitutional. It is inappropriate for Congress to limit the rights 
of individuals when state courts have ruled that their rights are 
protected under state constitutions.
  Missourians Jay and Sue Stratman have a son, Daniel Lee Stratman, who 
is only 11 years old. In July of 1996 Daniel was checked into the 
hospital for ``minor'' outpatient hernia repair surgery. Daniel was set 
to be released that same evening. Daniel was not released until 
November 8 of that year and nothing has been the same for either Daniel 
or his family.
  Daniel is permanently disabled due to severe brain damage, which was 
a result of multiple repeated anesthetic errors during the supposedly 
routine surgery for inguinal hernia repair. As a result of the medical 
errors, Daniel has suffered profound neurological damage including 
severe cognitive deficits, a decreased level of awareness, diminished 
bowel and bladder control, and severe gross and fine motor skill 
injury. He is cortically blind due to the lack of oxygen and perfusion 
to his brain during surgery. His comprehension level and communication 
capability have been severely diminished. Daniel requires 24-hour 
vigilance and this will be true for all of his remaining 70-year life 
expectancy.
  The cap in H.R. 5 unjustly penalizes those individuals without 
income, like Daniel. Others that fall into that category include: stay-
at-home moms and the elderly. 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.
  By capping punitive damages, H.R. 5 limits protection for injured 
patients like Daniel. Instead the bill before us protects HMOs and big 
insurance companies from legal responsibility. HMOs and big health 
insurers, who are also big campaign contributors, should not receive 
special treatment under the law.
  Further, H.R. 5 does nothing to reduce insurance premiums for 
doctors--the very thing Congress needs to address. Currently, medical 
malpractice insurance rates are rising because insurance companies are 
squeezing doctors to make up for investment losses over the last few 
years, investment loses most citizens have also experienced. Instead of 
penalizing doctors, hospitals and patients Congress should make major 
reforms to the insurance industry.
  I support the Conyers-Dingell motion to recommit because it rightly 
focuses on giving Americans quality healthcare and weeding out 
frivolous lawsuits while maintaining the rights of patients with 
legitimate claims, and respect for the humanitarian doctor's perform.
  I urge my colleagues to oppose H.R. 5 and support the motion to 
recommit to include patient's rights and state's rights.

[[Page H1851]]

  Mr. BROWN of Ohio. Mr. Speaker, I yield 2 minutes to the gentleman 
from Maine (Mr. Allen), who has pointed out in USA Today that the 
malpractice premiums are only 3 percent of revenue, actually less than 
the rent that physicians pay.
  Mr. ALLEN. Mr. Speaker, this bill will not reduce health care 
spending significantly. If you add up all the malpractice premiums in 
this country, they represent one-half of 1 percent of the $1.4 trillion 
we spent on health care last year.
  Now, some States have problems. Maine does not impose caps on 
noneconomic damages, yet we have comparatively low insurance premiums. 
Maine has a mandatory pre-litigation screening panel for every medical 
malpractice case. The panel consists of one attorney, one doctor and 
one retired judge. This panel process weeds out the frivolous lawsuits 
and encourages legitimate cases to come to a fairly quick resolution. 
Sixteen other States have similar screening panels.
  States with screening panels should be exempt from the cap on 
noneconomic damages. There is no reason to impose this law on States 
which have figured out how to deal with this problem on their own. But 
this bill imposes a one-size-fits-all Federal rule in a traditional 
area of State jurisdiction.
  And this bill does something else. This bill sticks individual 
plaintiffs, particularly those who are children or unemployed or 
elderly, with perhaps a huge lifetime cost because of severe injuries, 
instead of sharing those costs through our insurance system. So, once 
again, the Republican majority is basically saying it is better to 
stick the loss on those who suffer it than to share that loss broadly 
through insurance.
  A $250,000 cap does not mean $250,000 will ever go to a plaintiff, 
because they always have expenses and attorney's fees and all of that. 
It seems to me that this cap is unbelievably low, it is imposed 
arbitrarily on States which have figured out another way to deal with 
this problem, it is bad policy, and I urge my colleagues to vote down 
H.R. 5.
  Mr. BROWN of Ohio. Mr. Speaker, I yield 2 minutes to the gentlewoman 
from Illinois (Ms. Schakowsky).
  Ms. SCHAKOWSKY. Mr. Speaker, if H.R. 5 passes, we will be committing 
legislative malpractice, in my view. Listen to my constituents. If you 
were on a jury, you just might feel they deserve more than $250,000 for 
the pain and suffering they have suffered and will suffer. H.R. 5 would 
take that right away from you and other citizens.
  ``On May 19, 2000,'' writes my constituent, ``I went for an 
outpatient surgery. During the surgery, the oxygen ignited, unbeknownst 
to the surgeon, the anesthesiologist and three to four other highly-
trained medical personnel in the room. While the surgery continued, my 
entire face was burned.
  ``After a year of failed treatment to deal with the scarring, 
essentially I lost my entire upper lip, the front of my nose, the floor 
of the nose and immediate interior of my nose. I was referred to a 
specialist in Boston for reconstructive treatment. For these past three 
years I have been in a mask covering my face and I have nasal tubes to 
stent open my nose for 23 hours a day. With my mask on, I can only 
drink through a straw. My breathing was entirely cut off for almost 2 
years, and is still not stable due to the scarring inside my nose. I 
have to travel to Boston monthly. I have been through eight surgeries 
and have two to four more pending, plus oral surgery and orthodontics.
  ``My claim is not frivolous, in spite of the rhetoric of the medical 
insurance and political spokespersons favoring legislation to cap 
awards for pain and suffering at $250,000.
  ``Legislation to cap damages fundamentally punishes again the victims 
of these horrendous medical mistakes. It is astonishing that federally 
proposed legislation would first target the victims of these errors 
before addressing the errors themselves.''
  The other one is from a grieving father of Rabbi Josef Yitzchak 
Lefkowitz, 28-years-old, who went into the hospital for an adjustment 
to his bite. In the recovery, the breathing tube fell out of his nose, 
but his jaw was wired shut and they could not find wire cutters to open 
his mouth. He died an agonizing and painful death.
  These are not lottery winners. These are not people who won the 
jackpot. They deserve better than H.R. 5.
  Mr. BROWN of Ohio. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentlewoman from California (Ms. Solis).
  Ms. SOLIS. Mr. Speaker, I believe we can all acknowledge that rising 
medical malpractice premiums are hurting doctors and patients. But I 
heard earlier from the other side that trauma centers are closing, and 
they are closing in Los Angeles. But it is not because of frivolous 
lawsuits, it is because we have not provided adequate reimbursement for 
Medicaid for those poor hospitals. That is why, and we are not even 
addressing that.
  I have to say, with all due respect, that the bill will not lower 
insurance premiums. Caps in California did not lower premiums. 
Insurance reform did, Proposition 103, and only slightly, because we 
are still above many other States in the country.
  We need to bring insurance providers to the table and we need to have 
that kind of discussion, not one that talks back and forth here on the 
floor.
  Caps on noneconomic damages unfairly penalize children, retirees and 
stay-at-home moms. And you know why? Because they do not make an 
income.
  Mr. Ed Whiddon, a retired lieutenant colonel in the Air Force, was a 
victim of malpractice at the hands of an anesthesiologist who left him 
a paraplegic. His compensation was almost entirely for pain and 
suffering damages because he was retired, no income, did not qualify 
for lost wages.
  The bill would unfairly limit damages for retirees like this former 
member of our Armed Forces and others who earn no wages, like poor moms 
and children.
  Let us protect patients' rights. Let us help those poor people. Let 
us open up those trauma centers by really addressing the issue 
adequately. This way is the wrong way. I urge my colleagues to oppose 
H.R. 5 and to support the Conyers-Dingell alternative.
  Mr. BROWN of Ohio. Mr. Speaker, I yield 1\1/2\ minutes to the 
gentleman from Houston (Mr. Green).
  Mr. GREEN of Texas. Mr. Speaker, my Ohio colleague could not say 
Texas. He just wanted to say Houston.
  Mr. Speaker, I rise in opposition to H.R. 5, and I am frustrated like 
a lot of Members, one because we do not have an opportunity to have 
additional amendments. I thank our chairman for allowing us to let 
democracy work its will in our committee. We had a long hearing all 
day. But here on the floor we do not have that option. The same thing 
happened last year on prescription drugs. It is frustrating.
  We are fighting for democracy all over the world, but we do not get 
to have a voice here on the floor of the House with an alternative.
  I have a district in Texas, and we have a medical malpractice crisis. 
Of course, we have gone in and out of this for the last 30 years, but 
it has been dealt with by our State legislature in Texas, and literally 
as we stand here today, there is legislation that is out of the 
committee on the floor of the House for consideration that will solve 
our problem in Texas where it should be dealt with.
  Thirty-seven States, including my home State of Texas, are 
considering legislation that would address the malpractice situation. 
We do not need Congress to tell us what to do. We can deal with it.
  If Congress makes a mistake with H.R. 5, and I consider it a mistake, 
it is one-size-fits-all, Washington-knows-best for all 50 States, 
instead of letting the States deal with it.
  The California experience that my colleagues on the Republican side 
talk about so successful, it was California, as hard as it is for a 
Texan to say they did something good, but it works. We do not need to 
tell California or Texas or any other State what they can do. They can 
deal with it, instead of us dealing with it here.
  But let me talk about H.R. 5 just a little bit. It does not deal with 
medical errors, we have separate legislation on that; it does not stem 
the tide of frivolous lawsuits; and it does not help us deal with 
physician shortages. That is why it should be voted down.
  Mr. BROWN of Ohio. Mr. Speaker, I yield 1 minute to the gentleman 
from California (Mr. Waxman).

[[Page H1852]]

  (Mr. WAXMAN asked and was given permission to revise and extend his 
remarks.)
  Mr. WAXMAN. Mr. Speaker, I am going to put a longer statement in the 
Record, but I want to say this, that this bill is a flawed approach. It 
has a one-size-fits-all approach to every State, and it ought to be up 
to the States to decide how to deal with these issues.
  California has a law that California's legislature adopted. But 
California and other States have jurisdiction over liability laws and 
licensure of medical professionals and disciplining those who are 
conducting malpractice. We ought not to take this whole thing over here 
in Washington. States ought to be able to adopt their own laws.
  Secondly, the tort laws are to serve two purposes. First, to make 
people whole who are injured. By putting a cap on damages, it denies 
individuals the ability to be made whole through the court system.
  Secondly, the idea of the tort law is to deter future malpractice, 
and I am afraid we are not going to deter future malpractice by this 
legislation.
  I want to lastly point out, this bill goes beyond California law. It 
gives special treatment to HMOs, to pharmaceutical manufacturers and 
medical device manufacturers in a way that is completely inappropriate 
through an FDA approval process that then insulates them from liability 
for punitive damages, which I think is way out of line and wrong.
  Mr. Speaker, I rise in opposition to this bill because it is 
fundamentally flawed and will do far more harm than good. It imposes a 
one-size fits all solution on every state. It imposes arbitrary caps on 
liability that defeat the purpose of compensatory and punitive damages. 
It gives legal protections that go far beyond the legitimate needs of 
doctors, benefiting profitable pharmaceuticals, HMOs, and insurance 
companies. And to add insult to injury, all of this comes at the 
expense of the injured victims of medical malpractice.
  States have traditionally handled every aspect of the medical 
malpractice insurance problem, and are better equipped than the federal 
government to respond to skyrocketing insurance premiums in some areas 
of the country. States establish the applicable standards of care for 
health care professionals and are responsible for their licensure. 
States are responsible for boards of discipline and criminal laws to 
deter and punish professional misconduct. States are responsible for 
the rules governing lawsuits and the functioning of their civil justice 
system. And states are responsible for the regulation of the insurance 
industry. Like the State of California, which the supporters of this 
legislation hold up as a model for the country, other states are 
perfectly capable of enacting appropriate liability and insurance 
reform.
  This bill, however, establishes a one-size-fits-all solution on the 
entire country and overrides state laws. For example, if this bill is 
enacted, states cannot elect to have a longer statute of limitations. 
States cannot opt out of liability caps. States cannot choose to inform 
juries of caps on liability or impose the traditional rule of joint and 
several liability. States cannot allow punitive damages in cases 
involving drugs and medical devices approved by the FDA.
  H.R. 5 also takes the wrong approach to tort damages, which are 
designed to make victims of medical malpractice whole and punish those 
who have engaged in egregious misconduct. H.R. 5 allows unlimited 
recovery for objectively quantifiable damages, such as lost wages or 
medical bills, but it caps non-economic damages at $250,000. Non-
economic damages are difficult to quantify, but they nonetheless 
compensate victims for real injuries such pain and suffering, the loss 
of the child, the loss of a limb, or permanent disfigurement. This 
bill's cap of $250,000 is clearly not enough to make victims whole in 
every case. H.R. 5 also takes the wrong approach to punitive damages, 
which are capped at two times the amount of economic damages or 
$250,000. Many wrongdoers protected by this bill--including HMOs, 
insurance companies, and pharmaceuticals--could absorb such a penalty 
with absolutely no impact on their bottom line. This defeats the very 
purpose of punitive damages in our system of justice, which is to 
punish wrongdoers and deter future misconduct.
  In addition to these problems, this bill is a blatant give-away to 
special interests. It conspicuously ignores the business practices of 
insurance companies, which are certainly a cause--if not the primary 
cause--of the medical malpractice insurance crisis. And the bill gives 
special liability protection to large, profitable corporations such as 
MHOs and the manufacturers, suppliers, and distributors of drugs and 
medical devices. While these corporations have been major contributors 
to the Republican party, they have done little else to make a case for 
the protections they've won in H.R. 5.
  I urge my colleagues to oppose the bill.

                              {time}  1430

  The SPEAKER pro tempore (Mr. Simpson). The gentleman from Ohio (Mr. 
Brown) has 2\1/2\ minutes remaining; the gentleman from Louisiana (Mr. 
Tauzin) has 1\1/2\ minutes remaining.
  Mr. TAUZIN. Mr. Speaker, I have only one additional speaker to close, 
so I would urge my friend to use up the balance of his time.
  Mr. BROWN of Ohio. Mr. Speaker, I thank the gentleman. We have two 
more speakers.
  Mr. Speaker, I yield 1 minute to the gentleman from New York (Mr. 
Engel).
  (Mr. ENGEL asked and was given permission to revise and extend his 
remarks.)
  Mr. ENGEL. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  Mr. Speaker, let me say up front that I think we need to help doctors 
with unconscionable medical malpractice rates. I mean this most 
sincerely, and I pledge to do everything I can to help them; but this 
bill is not the way to go. It will adversely impact patients who are 
injured. These are people whose lives are irreparably harmed and this 
legislation, in my opinion, punishes them even further.
  We can find a balance, but the majority is ramming this legislation 
through the House without regard to how it will hurt victims of 
negligent practices.
  A $250,000 cap on economic damages disproportionately affects those 
who do not earn a lot of money. Someone with a minimum-wage job or a 
stay-at-home mom or dad cannot place a value on their work, but a 
corporate executive will walk away with millions in economic damages. 
This is not what we should be advocating in the House.
  Further, the legislation limits the statute of limitations to 3 years 
from the day the injury occurred or 1 year from the day the injury is 
discovered. This is not fair. I had an amendment which I tried to put 
forward in the Committee on Rules in the hope that they would allow us 
an up-or-down vote on the floor. It was turned down. There are some 
injuries, for instance, HIV/AIDS or blood transfusions, where people do 
not find out about their injuries for more than 3 years.
  So I believe this bill is not the way to go. It should be voted down, 
and I hope we can come back with good compromise legislation that helps 
doctors with malpractice rates.
  Mr. BROWN of Ohio. Mr. Speaker, I would point out that we will have a 
motion to recommit, since the majority would not allow us any other 
amendments of the 31 requested.
  Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from 
Massachusetts (Mr. Markey).
  Mr. MARKEY. Mr. Speaker, this bill has one huge flaw that even its 
proponents concede: that the benefits, if any, flow directly to the 
insurance companies, not to the doctors. Therefore, I tried to perfect 
this bill. During the Committee on Energy and Commerce markup, I 
offered an amendment to ensure that the savings from the bill's caps on 
damages for patients' pain and suffering would be passed along to the 
doctors in the form of reductions in their liability insurance 
premiums. Every Republican voted no. They each voted with the insurance 
industry.
  This bill deserves to be defeated, as long as there is no effective 
guarantee that savings from the bill's caps on damage will go not to 
doctors, but to the insurance industry.
  This bill claims to be a cure for the high cost of insurance premiums 
paid by doctors, but it is really just insurance for insurance 
companies. It is a public policy placebo that only offers the illusion 
of relief from sky-high insurance premiums, while pumping cash into the 
bottom line of insurance companies.
  Capping damages may save insurance companies money when their 
policyholders are sued, but the bill does not require insurers to pass 
along one cent of savings to the doctors so that they can stay 
practicing in local communities across this country.
  We can all agree that health care liability insurance is a critical 
issue that has significant impact on patients, on doctors, on 
insurance; but

[[Page H1853]]

this bill leaves out one critical link: the doctors who will not 
receive the benefits of the lower premiums that have been promised.
  Vote ``no'' on this gag bill that does not allow for a full debate on 
the House floor.
  Mr. TAUZIN. Mr. Speaker, I want to quickly point out, our own 
Congressional Budget Office estimates a 25 to 30 percent reduction in 
malpractice insurance costs and a savings to the U.S. Government alone 
of $18.1 billion if this bill passes.
  Mr. Speaker, I yield the balance of our time for closing to the 
gentleman from New Jersey (Mr. Ferguson).
  Mr. FERGUSON. Mr. Speaker, congratulations to the chairman for all of 
his good work on this bill.
  I rise in strong support of this legislation. I am proud to be a 
cosponsor, and I am pleased that today we finally move forward with 
meaningful, structural reforms that will have a tremendous impact on 
the medical liability crisis looming before our country.
  Over the past few months I have seen health care providers, doctors, 
hospitals, nursing homes, all of our care-givers, curtail services to 
the community and to people in need. Why? They have done so because of 
the fear of frivolous lawsuits and these lawsuits which have caused 
insurance costs to skyrocket.
  What amazes me is the misinformation that is out there on this issue 
and that has recklessly entered this debate. In fact, there is so much 
misinformation that some individuals in this body, I think, have 
forgotten what it is that we are trying to accomplish here.
  Just the other day, I read an article claiming that medical liability 
reforms that we are going to pass with this bill will make it more 
difficult for patients to find lawyers. That is right. Is that the 
crisis that we are facing today? Not enough lawyers? Of course not. 
That is not what we are here for.
  We are here because of patients, because we want to preserve patient 
access to care. All patients, whether a senior or a newborn baby, 
deserve the highest quality of care. But at the current rate, we cannot 
keep this promise.
  My family has personally experienced the effects of this liability 
crisis in New Jersey with the recent birth of our third child. My 
wife's doctor lost her partner. The other OB whom she practices with 
had to leave the State because her insurance costs were too high. Our 
doctor was there for us, but I fear for other moms and dads, fathers 
and mothers, and loved ones in the future.
  Frivolous lawsuits have never healed anyone. I have never met a trial 
lawyer who was developing a new treatment for AIDS. I have never seen a 
frivolous lawsuit treat someone with diabetes. I have never heard of a 
multimillion dollar jackpot reward that served a disabled veteran in a 
wheelchair. What they have done is driven patients away from their 
doctors.
  Mr. Speaker, these are reasonable reforms. It is time that we ensure 
that our health care system serves patients and not trial lawyers. Vote 
``yes'' on the HEALTH Act.
  Ms. LEE. Mr. Speaker, for a nation that boasts about being the 
wealthiest in the world, claiming liberty and justice for all, the fact 
that there are over 40 million people without health insurance is a 
contradiction and a shame. And instead of addressing this crisis head 
on, this Administration and House Republican leadership continues to 
talk about health care and do nothing.
  The bulk of the uninsured are low-income and minorities. These are 
the Americans who too often are ignored. The uninsured have lived a 
campaign of survival, and deserve a voice today and every day on this 
floor.
  As I stand before you on this floor, I would like to introduce you to 
these voiceless constituents. They are the men and women who have jobs 
in our stagnant economy. Most Americans receive health insurance 
through their employers, but millions lack coverage because their 
employers do not offer insurance or simply cannot afford to pay for it.
  Many of these working Americans qualify for Medicaid. Medicaid covers 
40 million low-income people and their families, but millions more do 
not meet its limiting income and eligibility requirements because of 
savage welfare reform restrictions crafted by the Republicans, leaving 
the most vulnerable uninsured.
  The numbers speak volumes. Fifty-six percent of the uninsured 
population are low-income and nearly one in five of the uninsured are 
low-income children. Although minorities comprise only 34 percent of 
the population, over half of the nation's uninsured are minorities. 
Twenty percent of these uninsured are African American and 34 percent 
are Hispanic.
  Minorities and the underserved bear a disproportionate burden of 
mortality and morbidity across a wide range of health conditions. 
Mortality is a crude indicator of health status and demonstrates how 
critical these disparities are for minorities. For African Americans 
and Latinos, these disparities begin early in life and persist. African 
American infant mortality rates are more than double those of whites, 
14 percent vs 16 percent, and the rate for Latinos is 9 percent 
compared to 6 percent for whites. The death rate for African Americans 
is 55 percent higher than for whites, with AIDS being the 6th leading 
cause of death for African American males. I could go on with a 
multitude of statistics that clearly illustrate the stark disparities 
in health care that exist for minorities. Yet the point remains that 
these disparities are a result of lack of insurance and lack of access 
to health care.
  Health insurance is important because it impacts health outcomes. 
Nearly 40 percent of the uninsured have no regular source of health 
care and use emergency care more due to avoiding high cost regular 
visits. This situation creates an ongoing cycle of adults and children 
skipping routine check-ups for common conditions, recommended tests, 
and treatments because of the financial burden, resulting in serious 
illnesses that are more costly. The uninsured are more likely than 
those with insurance to be hospitalized for conditions that could have 
been avoided.
  The message we must send is that universal health care that provides 
high quality health care should be provided without discrimination. 
That is why today I am introducing H.R. 3000, the U.S. Universal Health 
Service Act (U.S. UHSA). This proposal challenges us as Americans to 
take another look at the fundamental role government will have to play 
if we are ever to achieve an equitable and rational health care system.
  Universal health care is the only way we can provide equal access and 
fairness to our health care system. The uninsured are suffering; if we 
don't acknowledge health care as a basic human right soon, it will be 
too late for some, and our society's most vulnerable will continue to 
suffer. Our nation is the only industrialized nation that does not have 
a health insurance program for everyone, and our health care system is 
failing. Make health care accessible! Make health care affordable! Make 
health care a guarantee! I encourage all of my colleagues to cosponsor 
H.R. 3000 and support health care for all.
  Mr. UDALL of New Mexico. Mr. Speaker, I rise today in strong 
opposition to H.R. 5, the ``Medical Malpractice and Insurance Reform 
Act of 2003.'' Furthermore, I fervently object to the House Rules 
Committee's prohibition of amendments to this controversial measure, a 
decision that does not allow for open objective debate or consideration 
of any worthy alternatives. The rule governing this measure smacks of 
partisan politics, favors the corporate insurance industry over the 
health and well-being of the American population, and effectively 
subverts our great nation's democratic process. Denying us the 
opportunity to discuss this openly is absolutely unacceptable and 
exposes what this legislation is all about.
  H.R. 5 is purportedly designed to lower the high costs of physicians' 
medical malpractice insurance rates. We all agree that skyrocketing 
insurance premiums for medical malpractice are spiraling out of control 
and demand immediate attention. This bill, however, will not guarantee 
lower rates for doctors. Instead, it will severely limit victims' 
ability to recover compensation for damages caused by medical 
negligence, defective products and irresponsible insurance providers. 
In other words, H.R. 5 does not fix the problems plaguing the nation's 
health care system: it rewards insurance companies for bad investment 
decisions, offers minimal deterrence to doctors practicing bad 
medicine, and seriously restricts the rights of injured patients to be 
compensated for their injuries caused by such practices.
  It is clear that the House leadership is not really trying to help 
doctors, but rather their friends in the insurance industry. H.R. 5 
would usurp the role of the jury by empowering the Congress to 
determine the rate of compensation due to malpractice victims. The 
insurance industry often ridicules the rare million-dollar ``windfall'' 
jury awards given, asserting that the victim must feel like they have 
won the lottery. Do you suppose the parents of the 17-year-old 
transplant patient who died after being given the wrong blood type, or 
the Wisconsin woman who had a double mastectomy, only to discover after 
the operation that the lab had made a mistake and she did not have 
cancer after all, feel as if the jury-awarded compensation has enriched 
their lives? I think not. It is doubtful that any person or family that 
loses a loved one, or suffers years of pain and suffering because of a 
medicinal mistake or oversight, feels like celebrating, especially 
after fighting their way through the court system and finally receiving 
compensation.

[[Page H1854]]

  The insurance industry continually asserts that recent hikes in 
malpractice premiums are caused by excessive jury awards, and that the 
only remedy is to cap damage awards in malpractice lawsuits at 
$250,000--no matter how egregious or irresponsible the case. Capping 
damage awards will not lower insurance rates nor address the real 
problems in the medical liability system primarily for two reasons--
First, the cyclical nature of the insurance industry, that is, raising 
premiums to recoup losses due to bad investments in the stock market, 
and second, the number of medical errors made by the medical 
profession.
  Instead of enabling insurers, we should reject the one-size-fits-all 
cap that will restrict the ability of those most severely affected by a 
medical mistake--Americans who struggle daily to make ends meet--to be 
properly compensated.
  I am sympathetic to those good doctors and care givers who must pay 
soaring insurance bills or be forced to shut down their practices 
because of the exorbitant cost of liability insurance. Currently, 
malpractice premiums in my state of New Mexico are relatively low in 
comparison to those in some other states. However, due to increased 
concern over other economic and health related issues, we are already 
feeling the effect of our best physicians leaving the area to work 
elsewhere. Accordingly, I am extremely sensitive to the impact that 
increased premiums would present to this already delicate situation.
  The vast majority of doctors serve the public well. Instead of a real 
solution for these reputable doctors, the Leadership's plan punishes 
the innocent victims of medical malpractice, and does not reduce the 
premiums for good doctors. To reduce the malpractice premiums 
physicians pay, reforming the insurance industry and implementing 
programs to reduce medical errors and cracking down on negligent 
doctors would be a better solution than the liability caps and tort 
reform initiatives the Leadership supports today, legislation that 
directly and adversely affects the victims of medical malpractice and 
their loved ones.
  As our nation's lawmakers, I firmly believe that we must pledge to 
continue to work with doctors and patients to find equitable solutions 
for the numerous problems that plague access to quality health care in 
this country. We must act now to ensure that our good doctors are not 
unjustly punished for the malfeasance of others, and that everyone who 
deserves just compensation for wrongful acts or omissions receives 
adequate remedy.
  Regrettably, the Leadership denies us today the opportunity to openly 
debate the issue or offer alternatives to H.R. 5 on the House floor. 
Accordingly, I reiterate my opposition to H.R. 5, and state my intent 
to support a motion to recommit the issue for further consideration.
  Mr. FLAKE. Mr. Speaker, today I voted ``no'' on final passage of H.R. 
5, the Help Efficient, Accessible, Low-cost, and Timely Healthcare 
(HEALTH) Act. My vote was a difficult one, but I am not convinced that 
the federal government should preempt state law in this area.
  Those supporting this bill have made some compelling arguments as to 
why Congress should step in and institute these reforms. They cite the 
national nature of insurance plans, whereby a doctor in Arizona might 
have to pay more for malpractice insurance due to an over-the-top jury 
award in Texas. They also note that, as doctors close up shop or stop 
providing high-risk care in specialties such as emergency medicine and 
obstetrics and gynecology, patients are forced to cross state lines in 
order to seek out treatment. We have all watched with dismay as 
hospitals have been forced to shut their doors and doctors have opted 
to treat patients without malpractice insurance due to the high costs 
of premiums. Certainly, the trial attorneys who line their pockets with 
egregious fees aren't suffering as a result of the mess they've made 
with unscrupulous lawsuits. These arguments only underscore an already 
evident need for the states to pursue medical malpractice reforms. 
However, as one who believes firmly in federalism, I am unwilling to 
support legislation that would, in effect, preempt the constitution of 
the state of Arizona,which prohibits caps on damages.
  The natural evolution of health care delivery suggests that a federal 
solution such as H.R. 5 may one day be necessary. Even today, we need 
tort reform badly. It's up to the states to begin that process, and I 
plan to be part of those efforts. The states should follow California's 
example, which has been an undeniable success over the past 25 years.
  Mr. CUMMINGS. Mr. Speaker, I rise today in opposition to the Help 
Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act.
  Each year tens of thousands of people die or suffer needless pain and 
deformity from preventable medical errors. I believe, as I am sure many 
of my colleagues believe that these Americans, whose families suffer 
tremendously as a result of these injuries and deaths are entitled to 
compensation. This compensation should not be decided by Congress but 
rather by a jury or judge in the prevailing jurisdiction which has made 
a decision based on the merits and facts of those cases.
  Mr. Speaker, I think we need to focus on what's at stake here. We are 
talking about limiting meritorious claims. Claims of those like the 
little girl in North Carolina who received the improper blood type 
during her transplant and died shortly thereafter. Claims from innocent 
victims in my district and districts around the country who have 
received improper treatment or care and will suffer immeasurably as a 
result.
  Mr. Speaker, for every $100 spent on health care in America, only 
$.66 has been spent on malpractice insurance. As patients are most 
often victimized by repeat offending doctors, this bill does nothing to 
reduce negligence by doctors and hospitals, but decreases incentive to 
improve patient safety.
  Mr. Speaker, we are not talking about frivolous claims as the 
Republicans would have us believe. In fact, this bill will not limit 
any frivolous claims nor will it lower insurance premiums. Instead it 
is a band-aid approach to a huge problem. The Conyers-Dingell bill 
would have implemented the type of reform necessary to lower medical 
liability premiums for doctors through imposing anti-trust regulations 
on the insurance industry, but unfortunately the American people will 
not ever hear of this comprehensive plan. Again, the Republican-led 
House Rules Committee has muzzled the voice of the people.
  Mr. Speaker, I have heard many members speak of the California plan--
also known as MICRA plan. However, the results of California are mixed 
at best. It is reported that in fact after passing MICRA, the actual 
premiums of California doctors are 8 percent higher than in states 
without caps and health care costs continue to rise. In fact the state 
of California subsequent to MICRA had to pass insurance reform to stop 
skyrocketing premiums that helped only fatten the pockets of the 
insurance companies. That is exactly what H.R. 5 will do, fatten the 
pockets of the insurance companies, who are trying to compensate for 
the investment losses made in the stock market.
  Finally Mr. Speaker, H.R. 5 will also preempt state law--which sets 
its caps or sets no caps based on the input of its people. I would like 
to point out that in my own State of Maryland which as a cap on non-
economic damages, over three times higher than that in H.R. 5 I might 
add, that the medical insurance premiums are still higher than those in 
the adjacent District of Columbia which has no caps. This is the shell 
game that the insurance companies are playing--and the American people 
are the losers.
  It is for these reasons that I will vote against H.R. 5, and I urge 
my colleagues to vote against H.R. 5.
  Ms. HARMAN. Mr. Speaker, I support California's MICRA, but H.R. 5 is 
not MICRA and I rise with some reluctance to oppose it.
  As the daughter and sister of medical doctors, I understand better 
than most the chilling effect unlimited medical liability awards have 
on the practice of medicine.
  Indeed, my father, who had a practice in Culver City, California, 
retired from practicing medicine in the mid-1970s because of the 
alarming increase in premiums. Only after his retirement did California 
enact its Medical Injury Compensation Reform Act--or MICRA.
  MICRA is an experiment in limiting non-economic and punitive medical 
liability damage awards--and it has succeeded. For medical doctors, 
MICRA has provided stability in insurance premiums. For patients, it 
reduced meritless claims and accelerated the time in which settlements 
can be reached.
  I strongly support MICRA, although before extending it to the entire 
nation, I would proposed adjusting the $250,000 cap on punitive and 
non-economic awards, first enacted in 1975, to reflect its current 
value.
  Though H.R. 5 adopts the structure of MICRA, it is weighted down by 
dubious procedural and substantive roadblocks for a variety of causes 
of action against HMO's, nursing homes, and insurance companies--areas 
where the California legislature has enacted significant protections 
for patients. California's medical professionals oppose the inclusion 
of these provisions under H.R. 5's MICRA-like caps and procedures.
  Last year, I voted for H.R. 5--with the hope and expectation that 
improvements would be made in conference with the Senate to narrow its 
egregious provisions. This did not happen, and constructive amendments 
offered in the Energy and Commerce Committee were opposed on near-party 
line votes.
  The closed process by which we are considering this important bill 
today belies any desire by the majority to make the improvements I 
believe are necessary.
  I cannot support the bill again in its present form. Hopefully, 
changes will be made in the Senate to align it more closely with 
California's MICRA, with the modification of the caps I noted earlier. 
If this happens, I will support the conference report.
  Medical professionals should be able to practice in a climate of 
certainty, and patients

[[Page H1855]]

should be charged reasonable rates for quality care. This is what I 
support for every community in the country. This is not what H.R. 5, in 
its present form, delivers.
  Mr. OXLEY. Mr. Speaker, medical malpractice lawsuits are increasingly 
being used to enrich lawyers at the expense of patients and doctors. We 
would never close the doors of our legal system to people who have 
legitimately suffered. But the abuse of the system is threatening the 
quality of care delivered by our doctors and hospitals. According to 
the Ohio State Medical Association, 76 percent of Ohio doctors say 
insurance costs have affected their willingness to perform high-risk 
procedures. I've met with doctors in my district who say these high 
costs might force them to retire. My rural district cannot afford to 
lose quality physicians.
  This is clearly an issue of tort reform, not insurance regulation. 
State insurance commissioners strictly regulate liability insurers. 
Companies are not permitted to raise their premiums to make up for past 
losses. Malpractice insurance premiums are skyrocketing because over 
the last decade there has been an explosion in the number of lawsuits 
and particularly large awards, some reaching lottery proportions. 
That's something the market will reflect.
  Reasonable limits on non-economic damages are a sensible way to make 
sure that malpractice lawsuit awards address actual damages. They work, 
without compromising legal rights or physician vigilance. Ohio is a 
case in point. When my state placed caps on these awards in 1975, 
insurance premiums dropped. When this cap was overturned, lawsuits . . 
. and therefore, costs . . . went up almost immediately. What changed 
was the behavior of lawyers, not doctors.
  H.R. 5, the HEALTH Act, is a surgical solution to a crisis that spans 
from the operating room to the court room. I urge its adoption.
  Mrs. BIGGERT. Mr. Speaker, I rise in support of H.R. 5, the HEALTH 
Act.
  Frivolous malpractice lawsuits are spiraling out of control. Too many 
doctors are settling cases even though they have not committed a 
medical error. And good doctors are ordering excessive tests, 
procedures and treatments out of fear.
  Those were the primary issues a panel of experts highlighted at a 
medical malpractice forum I hosted last summer in my congressional 
district.
  At this forum, the doctors, hospital administrators, and other 
medical personnel that deal with these issues on a daily basis said 
these cracks in our medical system are driving physicians and hospitals 
out of business. They simply cannot afford the exorbitant malpractice 
insurance rates that result from these frivolous lawsuits. As a result, 
they are forced to close their doors, limiting patients' access to 
care.
  Even if doctors can afford to stay in business, they cannot make 
decisions based solely on their patient's best interest. With the 
threat of malpractice suits constantly hanging over their heads, they 
must act in ways to protect themselves from being sued.
  Take for example, the case of a five-year-old boy in my district who 
was hit by a car and sustained a broken leg, along with a minor skull 
fracture. Usually, in these sorts of cases, a neurosurgeon would 
monitor the patient, to make sure his brain injury remained stable. 
Because of malpractice concerns and excessive insurance premiums, no 
neurosurgeons at that hospital or in the area could afford to treat 
patients under the age of 18. In Illinois, a staggering 85 percent of 
neurosurgeons are sued for malpractice at least once in their careers.
  Without a neurosurgeon to follow the patient, the child had to be 
transferred to another hospital and undergo an ambulance ride with a 
broken leg. Once he reached the other hospital, there was no pediatric 
neurosurgeon available, so the orthodpedic trauma surgeon had the child 
placed in traction. This involved inserting a pin into the patient's 
leg just above his knee to hang the weights that pulled on the leg, and 
keeping him in traction for a few weeks.
  After two days, his parents wanted their child to be transferred back 
to the original hospital closer to home. This meant that the child had 
to endure another ambulance ride in vulnerable condition.
  My point here is not that frivolous lawsuits hurt doctors; it's that 
they end up hurting patients--in this case, a five-year-old.
  Are some malpractice lawsuits necessary? Absolutely. Patients must 
have access to justice and restitution. But it is wrong when trial 
lawyers can exploit the system through frivolous or unlimited suits. 
And it is wrong to jeopardize patients' access to healthcare.
  Mr. Speaker, Congress has twice before had the opportunity to fix the 
malpractice system and I have supported these attempts. The good news 
is that we have another chance today to take a big step toward 
preserving the long-term viability of the medical system in Illinois 
and around the country.
  I urge my colleagues to join me in supporting H.R. 5. It is time for 
Congress to enact common sense liability reforms that safeguard 
patients' access to care.
  Mr. STARK. Mr. Speaker, I rise in strong opposition to H.R. 5, 
legislation that would undermine the right of patients and their 
families to seek appropriate compensation and penalties when they, or a 
loved one, are harmed or even killed by an incompetent health care 
provider.
  At best, this bill is a wrong-headed approach to the problem of 
rising malpractice health insurance costs. At worst, it is designed to 
protect bad doctors, HMOs, and other health care providers from being 
held accountable for their actions. Either way, this bill is harmful to 
consumers and should be defeated.
  The Republican Leadership has once again brought forth a bill that 
favors their special interests at the expense of patients and quality 
health care. Doctors, hospitals, HMOs, health insurance companies, 
nursing homes, and other health care providers would all love to see 
their liability risk reduced. Unfortunately, this bill attempts to 
achieve that goal solely on the backs of American's patients. I said, 
``attempts to achieve that goal'' intentionally.
  Despite the rhetoric from the other side, there is absolutely nothing 
in H.R. 5 that guarantees a reduction in medical malpractice premiums. 
There is not one line to require that the medical malpractice insurance 
industry--in exchange for capping their liability--return those savings 
to doctors and other providers they insure through lower malpractice 
premiums. To quote one of many economists on this matter, Frank A. 
Sloan, an economics professor from Duke, recently said, ``If anyone 
thinks caps on pain and suffering are going to work miracles overnight, 
they're wrong.'' In fact, the outcome of this bill could have zero 
impact on lowering malpractice premiums and instead go into the 
pocketbooks of the for-profit medical malpractice industry. Of course, 
the bill's proponents avoid mentioning that very real possibility.
  Proponents of this bill like to say that they are taking California's 
successful medical malpractice laws and putting them into effect for 
the nation. This is also hyperbole. California did not simply institute 
a $250,000 cap on medical malpractice awards. The much more important 
thing that California did was to institute unprecedented regulation of 
the medical malpractice insurance industry. This regulation limits 
annual increases in premiums and provides the Insurance Commissioner 
with the power and the tools to disapprove increases proposed by the 
insurance industry. It is this insurance regulation that has maintained 
lower medical malpractice premiums. Yet the bill before us does 
absolutely nothing to regulate the insurance industry at all.
  Supporters of this bill would have you believe that medical 
malpractice lawsuits are driving health care costs through the roof. In 
fact, for every $100 spent on medical care in 2000, only 56 cents can 
be attributed to medical malpractice costs--that's one half of one 
percent. So, supporters are spreading false hope that capping medical 
malpractice awards will reduce the cost of health care in our country 
by any measurable amount. It won't.

  What supporters of this bill really do not want you to understand is 
how bad this bill would be for consumers. The provisions of this bill 
would prohibit juries and courts from providing awards they believe 
reasonably compensate victims for the harm that has been done to them.
  H.R. 5 caps non-economic damages. By setting an arbitrary $250,000 
cap on this portion of an award, the table is titled against seniors, 
women, children, and people with disabilities. Medical malpractice 
awards break down into several categories. Economic damages are awarded 
based on how one's future income is impacted by the harm caused by 
medical malpractice. There are no caps on this part of the award. But, 
by capping non-economic damages, this bill would artificially and 
arbitrarily lower awards for those without tremendous earning 
potential. This means that a housewife or a senior would get less than 
a young, successful businessman for identical injuries. Is that fair? I 
don't think so.
  The limits on punitive damages are severe. Punitive damages are 
seldom awarded in malpractice cases, but their threat is an important 
deterrent. And, in cases of reckless conduct that cause severe harm, it 
is irresponsible to forbid such awards.
  Republicans claim to be advocates for states rights. Yet, this bill 
directly overrides the abilities of states to create and enforce 
medical malpractice laws that meet the needs of their residents.
  This Congress has been unable to pass a Patients' Bill of Rights to 
protect the rights of patients enrolled in managed care plans. 
Thankfully states have not been similarly immobile. They have moved 
ahead and enacted numerous laws to hold HMOs and other health plans 
accountable for the care they provide to patients--and any harm they 
may cause in that process. My home state of California has enacted 
strong legislation in this regard. If H.R. 5 becomes law, those laws 
will be overridden. It is not just consumer advocates who

[[Page H1856]]

are concerned about this. Steven Thompson, lobbyist for the California 
Medical Association, was recently quoted in the Sacramento Bee as 
saying, ``The California law we supported was intended to protect 
doctors and hospitals--people who deliver care, but the health plans 
would benefit from the way the House bill is laid out.'' In other 
words, this bill is anti-Patients' Bill of Rights. Despite years of 
fighting in Congress to hold health plans accountable for their abuses, 
this bill actually protects them! I will not support any bill that 
precludes states from moving ahead to protect consumers--especially 
when Congress has proved incapable of addressing their needs.
  The issue of rising malpractice insurance costs is a real concern. I 
support efforts by Congress to address that problem. That's why I would 
have voted for the Democratic alternative legislation that 
Representatives Conyers and Dingell brought to the Rules Committee last 
night. Unlike H.R. 5, the Dingell-Conyers alternative would not benefit 
the malpractice insurance industry at the expense of America's 
patients. Instead, it addresses the need for medical malpractice 
insurance reform--learning from the experience of California--to rein 
in increasing medical malpractice premiums. Rather than enforcing an 
arbitrary $250,000 cap, the bill makes reasonable tort reforms that 
address the problems in the malpractice arena--penalties for frivolous 
lawsuits and enacting mandatory mediation to attempt to resolve cases 
before they go to court. It also requires the insurance industry to 
project the savings from these reforms and to dedicate these savings to 
reduced medical malpractice premiums for providers. The Dingell-Conyers 
bill (H.R. 1219) is a real medical malpractice reform bill that works 
for doctors and patients alike.

  The Democratic alternative bill is such a good bill that the 
Republican leadership refused to let it be considered on the House 
floor today. They were afraid that if Members were given a choice 
between these two bills, they would have voted for the Democratic bill. 
Once again the House Republican leadership has used their power to 
control the rules to stymie democratic debate.
  Medical malpractice costs are an easy target. My Republican 
colleagues like to simplify it as a fight between America's doctors and 
our nation's trial lawyers. That is a false portrayal. Our medical 
malpractice system provides vital patient protection.
  The bill before us drastically weakens the effectiveness of our 
nation's medical malpractice laws. I urge my colleagues to join me in 
voting against this wrong-headed and harmful approach to reducing the 
cost of malpractice premiums. It's the wrong solution for America's 
patients and their families.
  Mr. LANGEVIN. Mr. Speaker, I rise today in strong opposition to H.R. 
5, the Help Efficient, Accessible, Low Cost, Timely Health Care 
(HEALTH) Act, because this unhealthy act would severely limit patients' 
rights to sue for medical injuries while having virtually no impact on 
the affordability of malpractice insurance coverage. Because there is 
no provision in this measure requiring insurers to lower their rates 
once these so-called reforms are in place, it would leave countless 
patients deprived of relief while failing completely to help our 
struggling health providers.
  Like many of my colleagues, I am deeply troubled by the rising cost 
of malpractice insurance. Doctors across the country are being 
adversely affected by an increase in medical liability insurance 
premiums. These increases are making it more costly for physicians to 
practice, and rising insurance rates could eventually mean that 
patients no longer will have easy access to medical care. Doctors 
completing residencies in expensive areas are seeking better rates 
elsewhere, and physicians already in the market are leaving.
  There is wide agreement that something must be done to ensure 
reasonable rates and protect access to health care. Unfortunately, 
nothing in this legislation would decrease premium costs or increase 
the availability of medical malpractice insurance. Instead, it would 
make detrimental changes to the health care liability system that would 
extend beyond malpractice and compromise the ability of patients and 
other health care consumers to hold pharmaceutical companies, HMO's and 
health care and medical products providers accountable.
  For example, the three-year statute of limitations on malpractice 
suits contained in this legislation is more restrictive than most state 
laws, and could cut off legitimate claims involving diseases with long 
incubation periods. Thus, a person who contracted HIV through a 
negligent transfusion but learned of the disease more than three years 
after the procedure would be barred from filing a claim.
  In addition, H.R. 5 would arbitrarily limit non-economic damages to 
$250,000 in the aggregate, regardless of the number of parties against 
whom the action is brought. This cap would hurt patients like Linda 
McDougal, whose breasts were needlessly amputated due to a doctor's 
carelessness, and Jesica Santillan, who died after her doctor 
transplanted organs with an incorrect blood type into her body. It 
would disproportionately impact women, children, elderly and disabled 
individuals and others who may not have significant economic losses 
from lost wages or other factors but are still suffering very real 
injuries, such as the loss of a limb, pain and disfigurement, the loss 
of hearing or sight, or the loss of mobility or fertility. Surely, the 
impact of these injuries on their lives cannot be quantified at less 
than $250,000.
  As an individual who was paralyzed at the age of sixteen when a 
police officer's gun accidentally discharged and severed my spine, I 
find this provision particularly offensive and callous. After my 
accident, my medical expenses were outrageously high, and amounted to 
more than most people make in a year. Although there is no amount of 
money that can ever return what was taken from me, I was awarded non-
economic damages in the lawsuit my family filed shortly after my 
accident. Granted, my condition was not the result of medical 
malpractice, but had the non-economic damages in my case been capped, 
my life would have been profoundly affected because I would not have 
been fully compensated for my future health care needs. Likewise, I 
would not have been afforded the opportunity to attend college or had 
the hope of beginning a new life. While our civil justice system has 
determined that it is the injured party who deserves the greatest 
measure of protection, I find it a great disappointment that attempts 
to limit remuneration to victims of malpractice still persist.
  In 1976, California enacted the Medical Injury Compensation Reform 
Act, MICRA, which limits non-economic damages to $250,000, and is 
similar to the cap being proposed in this legislation. However, in the 
twelve years following the enactment of MICRA, California's medical 
malpractice liability premiums actually increased by 190 percent. It 
took enactment of insurance reform in 1988 that mandated a 20 percent 
rate rollback to finally lower and stabilize malpractice premium rates. 
It is important to note, however, that California's rates are no lower 
than the national average. Moreover, California's 1976 cap on non-
economic damages is now worth only $40,389, in 2002 dollars. As a 
result, a patient would need to recover $1,547,461 in 2002 for the 
equivalent medical purchasing power of $250,000 in 1976.
  Further, H.R. 5 would completely eliminate joint liability for 
economic and non-economic loss, preventing many injured patients from 
being compensated fully. Joint liability enables an individual to bring 
one lawsuit against multiple entities responsible for practicing unsafe 
medicine or manufacturing a dangerous, defective product and have the 
defendants apportion fault among them, if the jury finds for the 
plaintiff.
  Rather, our 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--the equivalent of 
three fatal plane crashes every two days. In fact, only five percent of 
doctors account for 54 percent of malpractice payments. Earlier this 
year, the New England Journal of Medicine reported that surgical teams 
leave clamps, sponges and other tools inside about 1,500 patients 
nationwide each year. Making it more difficult for these victims to 
seek compensation will not lead to safer medicine; it will only protect 
egregious medical malpractice behavior.
  Moreover, there is no evidence that the tort reforms proposed in H.R. 
5 would guarantee a decrease in insurance rates. In fact, the average 
liability premium for both internal medicine and general surgery in 
2001 was actually higher in states with caps on damages than in states 
without caps. The proponents of this measure claim that limiting 
``frivolous lawsuits'' will lower premiums. However, a study that 
appeared in the New England Journal of Medicine in 1991 concluded that 
only about 2 percent of those injured by physicians' negligence ever 
seek compensation through a lawsuit. Recent studies show that this 
figure remains unchanged. That means that even completely eliminating 
medical liability would have virtually no impact on the cost of health 
care. Do we need to find a way to lower insurance and health care 
costs? Absolutely. Is H.R. 5 the way to do it? Absolutely not.
  Instead, I plan to support the Democratic motion to recommit, which 
would allow patients to seek redress and provide assistance to 
physicians and hospitals in need. Specifically, this alternative would 
end frivolous lawsuits by requiring affidavits to be filed by qualified 
specialists certifying that the case is meritorious. It would also 
establish an independent advisory commission to explore the impact of 
malpractice insurance rates, particularly in areas where health care 
providers are lacking. Again, I would urge my colleagues to oppose the 
underlying bill, and to support the Democratic alternative.
  Mr. EVANS. Mr. Speaker, in my tenure in Congress, I have been 
dedicated to reforming many aspects of the health care system to

[[Page H1857]]

promote the highest quality health care benefiting the greatest number 
of Americans. Mr. Speaker, I do not believe that the HEALTH Act would 
contribute to this goal.
  This legislation blatantly advances the political agenda of the 
insurance companies. It does nothing to address the looming health care 
crisis we face where over 40 million Americans are without health 
insurance, access to quality care, or an ability to afford even basic 
screenings and medicines. This legislation would place a $250,000 limit 
on non-economic damages in malpractice suites brought against medical 
professionals. I cannot support limiting non-economic damages awards 
because I do not believe we have the authority to place an arbitrary 
dollar amount on the value of a person's health or life.
  These payments compensate patients for very egregious injuries, such 
as the loss of a limb, vision impairment, and infertility. The loss of 
a child or spouse can also fall under the limiting category of non-
economic damages. These damages are so wide and varying that a one-
size-fits-all approach just will not suffice. Further, limiting 
payments would disproportionately affect women, children, the elderly, 
the disabled and others that may have endured indescribable suffering, 
yet cannot claim a loss of wages or salary. To limit payments on 
meritorious cases involving legitimately injured patients is a step in 
the wrong direction for both the best interests of patients and for the 
discussion on truly lowering malpractice insurance costs.
  I do not believe that this legislation is particularly effective. 
These severe limitations would do little to lower insurance rates. For 
example, California, which has an equivalent cap on non-economic 
damages, has medical malpractice rates that are 19 percent higher than 
the countrywide average. It is crucial that a number of factors must be 
addressed to find an acceptable, working solution to this problem.
  I support the alternative bill on which the Republican Congress 
refused to allow us to deliberate. That we are not allowed to debate on 
the Democratic alternative erodes the democratic process of which our 
government was founded and of which rules this House.
  The Conyers-Dingell substitute would repeal the federal anti-trust 
exemption for medical malpractice insurance. This would increase 
competition and lower premium costs. The bill I support reduces the 
amount of frivolous lawsuits filed by providing severe penalties to 
lawyers who submit cases either without certification of merit or with 
a false certification of merit. I find the mandatory mediation 
provision in the Democratic substitute to be especially pertinent and 
of tantamount importance in approaching a viable solution to this 
complex problem. Mediation and the establishment of an alternative 
dispute resolution system will allow both defendants to reduce their 
litigation costs and victims to gain fair compensation.
  I urge my colleagues to vote down H.R. 5 and demonstrate their 
support for a Democratic alternative which will truly begin to curtail 
ghastly expensive medical malpractice insurance costs.
  Mrs. CHRISTENSEN. Mr. Speaker, H.R. 5 is but another wolf in lamb's 
clothing pretending to help doctors and patients, but really only 
helping the large healthcare corporations while doing nothing to help 
lift the malpractice burden from doctors and other providers or to 
ensure fair treatment to their patients. Health care professionals need 
to see through this sham.
  I am a family physician. I see my classmates and other doctors, 
excellent ones, many who have never been sued, struggling to keep their 
offices open under the pressure of outrageously high malpractice 
insurance premiums. Physicians are desperate for relief from their 
premiums. Unfortunately, the organizations representing physicians have 
been strongly supporting H.R. 5 possibly thinking that it is the best 
they can get, but it is not.
  It is truly a disservice to all of us that the Conyers-Dingell bill 
was not allowed consideration and debate. H.R. 5 does not even compare 
and is a poor attempt at a solution to this complicated problem.
  In fact, H.R. 5 is not of any help at all as has been proven in 
several states. This is politics and special interest legislation pure 
and simple, and our patients and us should not be the pawns in this 
game.
  This bill is another assault on the poor and minorities as well 
because regardless of their needs their awards will be capped at low 
levels. The cornerstone of H.R. 5 is a $250,000 cap on non-economic 
damages modeled after the arbitrary $250,000 cap instituted in MICRA. 
Compensation for economic damages for minorities is often much less 
than those awarded to white males, and $250,000 in 1975 is the 
equivalent of $855,018 in 2003. H.R. 5 puts values on human life and 
suffering that none of us can measure. H.R. 5's severely restricted the 
statute of limitations would further hurt minorities because they often 
have less exposure or access to medical care which causes them to often 
discover their injuries later.
  What my physician colleagues and all health providers need is real 
reform. We need to address all of the factors that cause the rise in 
premiums. We need to create legislation that includes the measures 
which have worked in the states that have successfully addressed this 
issue and brought relief to their health providers. H.R. 5 doesn't do 
any of this.
  I call on my colleagues to defeat this bill, and then join with our 
colleagues John Conyers and John Dingell to pass a bill that 
incorporates the measures that will most effectively reduce premiums, 
and bring relief not to HMO's, but to those who really need it, the 
health professionals and the patients who depend on their services.
  Mr. BLUMENAUER. Mr. Speaker, I am convinced action is needed to 
stabilize the delivery of health care, particularly for small 
communities and for medical specialties plagued by extraordinarily high 
premium rates. It is unacceptable to have prices spiraling so out of 
control that care is prohibitive for many doctors and patients. I am 
open to a range of alternatives to provide a long-term solution. This 
bill focuses only on capping damages to lower premiums, siting 
California's MICRA legislation as its model. Unfortunately, it ignores 
the other methods used in California, which may have had more impact 
over the long-term. The cap is eroding patients' rights by failing to 
provide for inflation and H.R. 5 suffers the same flaw.
  The Republican alternative is simply an attempt to provide a partisan 
political response, rather than a serious effort at bipartisan 
legislative action. This bill is being rushed through the legislative 
process without an opportunity for amendment and with little 
relationship to the proposal that is likely to emerge from the Senate. 
Last fall, I voted against the same bill when it came to the floor. 
Unfortunately, the Republican proposal is still just a bargaining 
position, not a legislative solution.
  It's very unlikely that this bill will be enacted into law, and if it 
was, it would be highly unfair to the people that I represent. I will 
continue to work with physicians and others in the health care 
community, and those who are involved and interested in patients' 
rights. We've missed an opportunity to advance more carefully crafted 
bipartisan solutions at this juncture, but there will be a time to do 
so in the future, and I look forward to participating in that fashion.
  Mrs. BONO. Mr. Speaker, I rise today in support of H.R. 5 and the 
physicians that work tirelessly to care for the sick and injured.
  I have witnessed first-hand the crux of the issue about which we 
debate today. My father worked as an ENT surgeon for 19 years in 
Southern California, both before and after California's MICRA law was 
enacted. He has also helped me to better understand the issues that 
those in private practice face and we both have an appreciation for the 
problems our doctors face. Living in Southern California my entire life 
has also allowed me to witness the changes that have taken place with 
regard to medical liability reform.
  Numerous doctors from Southern California have contacted me about the 
benefit that they have seen from the liability laws that exist in our 
state and realize how much it has affected their ability to treat more 
patients effectively. Still, other states are witnessing a serious 
reduction in care, particularly in vital specialities including those 
that affect expectant mothers.
  We face a vote today on an issue that centers on the ability of our 
doctors to practice the science that saves lives daily in our country. 
Currently physicians in many states face the reality of not being able 
to keep their practice running. Our problems cannot be solved by the 
trend of defensive medicine, as they can only lead to higher costs to 
the patient, the insurer, and the doctor. The ultimate price is paid 
when a defensive procedure costs not only money but the life of a 
patient.
  It is unfortunate that many frame this debate in terms of political 
ideology. How can we continue to demoralize our doctors from working in 
the field that they love and providing care for those who are 
suffering? H.R. 5 is about tempering skyrocketing insurance premiums 
across the country. H.R. 5 is about providing real access to care and 
the continued ability for our health care system to run effectively in 
times of state and national budget deficits.
  But, most importantly, Mr. Speaker, H.R. 5 is about allowing our 
doctors to help millions of people every year in the practice that they 
know better than any trial lawyer or bureaucrat in Washington, DC.
  Mr. Speaker, I encourage my colleagues to support H.R. 5.
  Mr. TOM DAVIS of Virginia. Mr. Speaker, I rise in strong support of 
H.R. 5, the Help Efficient, Accessible, Low-Cost, Timely Healthcare 
(HEALTH) Act. I would also like to thank Chairman Tauzin for his 
excellent work on this vital subject.
  Mr. Speaker, it is unfortunate that we have to take this action 
today. I am a firm believer that everyone should have their day in 
court if they feel they have been wronged. However,

[[Page H1858]]

inherent in this right is the assumption, if not the obligation, that 
this course of action will be used judiciously. However, that is not 
what has occurred. Medical malpractice litigation has become an 
industry in and of itself, with trial lawyers seeking out sympathetic 
courtrooms and juries where frivolous claims will be given undue 
credence. The courts should be forums to redress wrongs, not lotteries.
  We are now reaping the results of this litigious behavior, and the 
main result is that patients no longer have access to the healthcare 
they always assumed would be there. Doctors are leaving the communities 
they have served for decades. Try to get pre-natal care in Las Vegas. 
Try to see a neurosurgeon in Mississippi. They aren't there anymore. We 
have seen the doctors in West Virginia and New Jersey actually go on 
strike to protest the absurd rise in malpractice premiums due to 
frivolous lawsuits. I have spoken to doctors in my district that simply 
cannot afford their malpractice premiums anymore, and they are looking 
to us for help. We can have it one way or the other--we can continue on 
the current path, where every visit to the doctor is seen as a 
potential windfall, or we can take these necessary actions to return an 
element of sanity to the malpractice equation.
  I support H.R. 5 because I believe it will ultimately allow many 
doctors to continue practicing medicine, and thus ensure our 
constituents continue to have access to the care they need. This 
legislation does not let anybody off the hook--bad doctors will still 
be held accountable for their actions and patients injured through 
negligence will still have fair recourse. It simply prevents the trial 
bar from completely ruining our health care system. I urge my 
colleagues to give H.R. 5 their support.
  Mr. BACHUS, Mr. Speaker, under Alabama law, punitive damages are the 
only damages available in wrongful death actions. Therefore, under H.R. 
5, absence action by the Alabama Legislature, the maximum recovery for 
wrongful death (of, say, a 30-year-old father of three) resulting from 
medical malpractice would be limited to (no more than) $250,000. In 
good faith, I could not support such a result.
  Mrs. JONES of Ohio. Mr. Speaker, this past December in West Virginia, 
doctors at four hospitals went on a 30-day strike to protest climbing 
malpractice insurance rates. Following, in January 2003, Pennsylvania 
narrowly averted a strike only after a last-minute deal was made 
between the doctors and then governor-elect Ed Rendell. Similar 
occurrences in other states have made me shudder about the 
possibilities of similar events occurring in Northeast Ohio. The 
Cleveland Clinic, University Hospitals, and their affiliates serve as 
Ohio's premier medical facilities and I recognize the value that 
professionals working at those institutions provide to the Greater 
Cleveland community. Recent editorials in newspapers across the country 
have highlighted the frustrations experienced by medical professionals. 
These serve as a sounding call to Congress to readdress tort reform and 
medical malpractice.
  Although I am greatly concerned about the rising costs of insurance 
premiums, especially for certain high-risk medical procedures, and the 
subsequent decline in the availability of health care that results from 
doctors retiring or moving their practices, I am not convinced that 
tort reform is the panacea to the spiraling increase in medical 
malpractice premiums. Studies and anecdotal evidence clearly show an 
absence of correlation.
  In 1995, Texas passed a series of tort law restrictions that 
advocates claimed would lower the cost of insurance in Texas by $864 
million a year. Legislation was also passed mandating that any savings 
from such tort law restrictions be passed on to consumers. Despite 
claims made by proponents of the legislation, overall insurance premium 
savings in Texas, including any that might be attributed to changes in 
tort law, have been minimal. Yet since that legislation was passed, 
insurance company profits have skyrocketed in Texas. This pattern has 
been evident in several other states that have initiated tort reform 
legislation.
  In March 2002, the American Insurance Association (AIA) commented 
that lawmakers who enact tort reform should not expect insurance rates 
to drop further. The AIA is a major trade group of the insurance 
industry and their comment strengthens my belief that tort reform is 
not the solution to higher insurance premiums. Furthermore, in a 
response to a study by the Center for Justice & Democracy, the AIA 
stated, ``the insurance industry never promised that tort reform would 
achieve specific premium savings.''
  Although I am troubled by the possibility of insurers not issuing 
policies to medical practitioners in Ohio, it would be a mistake to 
simply credit lack of tort reform as the reason. For example, Missouri 
found itself in a similar situation several years ago and instituted 
tort reform legislation in the form of caps on non-economic damages for 
medical malpractice suits. Yet Missouri continues to have fewer 
insurers offering services to doctors. In addition, insurance companies 
that issue policies have not lowered premiums and have continued to 
enjoy hefty profits.
  Differences in the price of identical policies between different 
states can be attributed to factors other than whether that state has 
enacted tort reform measures. For example, comparable premiums in Ohio 
are lower in California primarily due to the fact that California has 
one of the strictest sets of insurance regulations in the nation as a 
result of Proposition 103.
  Tort reform advocates often call for caps on punitive damages and 
pain and suffering awards as one of their top priorities. These calls 
are usually accompanied by citing some of the outrageously high 
verdicts awarded to plaintiffs. But they neglect to cite the fact that 
judges often exercise their authority to reduce these verdicts or that 
they are reduced in the appeals process. Further, calls for tort reform 
are often just a form of scorn toward trial lawyers who may receive 
fees of between 30 and 40 percent of verdict amounts. But those 
advocates fail to note that trial lawyers typically take cases knowing 
that they could lose--and not receive any compensation for their work.
  Finally, the tort reform argument often neglects to mention an 
important party in any malpractice suit--the injured plaintiffs or 
their families. A recent report by the Institute of Medicine estimates 
that as many as 98,000 hospitalized Americans die each year as a result 
of medical errors. This is more than the number of deaths attributable 
to breast cancer or car accidents. Tort reform advocates, in their zeal 
to denounce trial lawyers and boost insurance company premiums, are 
tacitly saying that grievously injured victims of medical errors or 
their families deserve only minimal compensation for their injuries. 
Passage HR 5 will have an arbitrary and cruel effect on legitimate 
victims of medical malpractice.
  Since 1994, the House of Representatives have passed bills limiting 
malpractice awards. Some of these bills take the further step of 
removing state malpractice claims into the Federal courts. Each time, 
however, these bills have failed to get the 60 Senate votes necessary 
for passage. As expected this issue has arisen with full force in the 
108th Congress. Yet the facts remain the same: This legislation 
neglects plaintiffs' rights, limits state trial court judges' 
discretion, and fails to show any tangible net benefit to doctors who 
purchase premiums while simultaneously result in higher profits for 
insurance companies.
  Rather than focusing on implementing malpractice caps legislation 
that will not solve the problem of rising premium rates, Congress (and 
doctors and their regulatory boards) should be more vigilant in 
enforcing laws that cap the numbers of hours worked by residents 
(fatigue is often cited as a major contributor to medical errors), 
adopting a uniform system for reporting and analyzing errors 
nationwide, and coordinating patients records (while taking care to 
protect privacy) so that doctors can easily gain access to a patient's 
complete medical history.
  But while I cast my vote against H.R. 5, I remain committed to 
ensuring that the medical practitioners and facilities in this country 
remain a viable part of their communities' health care system. My alarm 
at the possibility of a medical practitioner talent drain caused by 
ever increasing medical malpractice premiums is real but I am committed 
to the conclusion that federal tort reform is not the solution.
  Ms. LINDA SACHEZ of California. Mr. Speaker, I rise in opposition to 
H.R. 5 and to the rule that cut off any debate on a highly 
controversial bill with far-reaching consequences. The Majority has 
refused to permit consideration of any amendments whatsoever, going so 
far as to deny Democrats the opportunity to offer a substitute to the 
underlying bill.
  There is no doubt that most Americans have a real problem accessing 
affordable health care. And it is true that we have some serious 
problems keeping specialists in practice and keeping trauma centers 
open. However, in seeking to address these problems, my Republican 
colleagues have come up with H.R. 5, a bill that caps a medical 
malpractice victim's recovery.
  H.R. 5 is a deplorable bill. It is the most simplistic and useless 
method for addressing very real problems with our medical community. It 
is a ridiculous piece of legislation that is akin to trying to put out 
a forest fire with a squirt gun.
  Supposedly, the goal of H.R. 5 is to stabilize medical malpractice 
insurance rates. But contrary to my colleagues' assertions, placing a 
cap on victim's recovery will not magically keep medical malpractice 
insurance rates from rising. It will not keep trauma centers from 
closing. It will keep specialists practicing medicine.
  H.R. 5 only focuses on restricting injured patients' access to 
justice. H.R. 5 is modeled after California's Medical Injury 
Compensation Reform Act, known as ``MICRA''. My Republican colleagues 
love to sing the praises of MICRA.
  However, as a Representative from California, I happen to know a lot 
about MICRA.

[[Page H1859]]

MICRA's caps on pain and suffering damages have not reduced insurance 
rates for doctors in my state. MICRA was signed into law in 1975, but 
stability in medical malpractice insurance rates did not occur after 
MICRA was passed. Between 1975 and 1993, in fact, health care costs in 
California rose 343 percent, nearly twice the rate of inflation. Not 
only that, but the California costs exceeded the national average each 
year during that period by an average of 9 percent per year.
  Any rate stabilization that has occurred in California is not due to 
caps, but to Proposition 103, which went into effect in 1990. 
Proposition 103 was an insurance reform initiative that changed 
California's insurance laws from a so-called ``open competition'' to a 
``prior approval'' regulatory system. Prop. 103 requires insurers to 
obtain approval of rate increases. But even with enactment of 
Proposition 103, rates in California have stayed close to national 
premium trends.
  Medical malpractice insurance rate hikes are cyclical. They tend to 
be at their highest when insurance companies' investment income is at 
its lowest. Tort caps have not and do not eliminate this cyclical 
pattern.
  I'm not the only one who has said that tort caps alone will not lower 
insurance rates. I would like to quote just a few other individuals who 
have made similar statements:

       ``Insurers never promised that tort reform would achieve 
     specific savings.''--American Insurance Association
       ``We wouldn't tell you or anyone that the reason to pass 
     tort reform would be to reduce insurance rates.''--Sherman 
     Joyce, president of the American Tort Reform Association
       ``Many tort reform advocates do not contend that 
     restricting litigation will lower insurance rates, and I've 
     never said that in 30 years.''--Victor Schwartz, general 
     counsel to the American Tort Reform Association

  Insurance companies are reluctant to look at any role they may play 
in the increasing liability insurance rates. Yet, their investment 
practices have made it nearly impossible for them to balance paid 
claims with premiums. Capping damages for plaintiffs is only one part 
of the stabilization equation. In order to bring about true 
stabilization, we must reform the insurance industry.
  H.R. 5, without insurance reform is meaningless. H.R. 5 simply re-
injures the legitimate victims of medical malpractice.
  Had we been given the opportunity, Democrats would have offered a 
substitute crafted by Representative Dingell and Conyers. That 
substitute takes concrete steps to eliminating frivolous lawsuits. It 
requires insurance companies to share their savings with doctors and 
patients. It evaluates the causes of insurance rate increases and 
proposes solutions. In short, it seeks to deal with the problem of 
rising medical malpractice insurance rates by addressing all aspects of 
the problem--insurance companies, doctors, patients, and the tort 
system. It would have been the comprehensive and fair way of fighting 
the real problem. This legislation would have prevented the forest fire 
before it began.
  The Members of this House--and the general American public--deserve 
the opportunity to consider a real proposal to address the medical 
malpractice insurance rate crisis. I urge a no vote on this rule.
  Mr. UDALL of Colorado. Mr. Speaker, I regret that I cannot support 
this legislation.
  I do think that high premiums for malpractice insurance are a serious 
problem for doctors in many states. And I agree with the bill's 
supporters that this is a problem for those who need medical services, 
because it tends to make health care less available.
  I would like to do something about that problem--but I think that if 
Congress is going to act, it should do so in a way that is both better 
balanced and better focused than the bill the House is debating today.
  The need for balance and focus is all the greater when Congress 
considers legislation that would apply everywhere and would override a 
number of different State laws, including laws related to the relations 
between Health Maintenance Organizations (HMOs) and individual 
patients.
  Over the years, many of our colleagues--particularly those on the 
other side of the aisle--have been outspoken about the problems 
associated with that kind of top-down, one-size fits-all approach to a 
problem that can be addressed by State legislators who are in a better 
position to respond to the particular circumstances of their 
constituents.
  I haven't always agreed with those criticisms, but in this case I 
think they are appropriate.
  For example, Colorado law places limits on the amounts that can be 
awarded in some lawsuits against doctors. I do not think the Colorado 
law is perfect, but I do think that our legislature is in a better 
position to judge such matters than the Congress--especially when we 
are forced to act under the kind of restrictive rules the one that 
applies to this bill.
  I hoped the Republican leadership would let the House consider 
amendments that could have made this bill more effective and better 
balanced. However, that did not happen, and now we are forced with a 
take-it-or-leave it choice--a ``my way or the highway'' approach to 
legislating that is unworthy of this House.
  Under those circumstances, and after careful consideration, I have 
decided I cannot support the bill. I am not persuaded that it will have 
a significant effect on the premiums doctors have to pay for 
malpractice insurance--or at least an effect great enough to warrant 
the reduction in the ability of injured people to win redress of their 
damages.
  We have heard much about ``frivolous'' lawsuits--and I think there 
really are some. But not every lawsuit is frivolous--some are well-
founded, because sometimes people really are hurt by negligence or 
other improper conduct. If I were persuaded that this bill struck the 
right balance, reducing the risks of frivolous lawsuits without unduly 
affecting the others--and if I were persuaded that as a result 
escalating insurance premiums would be effectively restrained--I would 
support it.
  But as it is, I am not persuaded of those things and so, given the 
sole choice of a yes or no vote, I must regretfully vote no.
  Mr. PAUL. Mr. Speaker, as an OB-GYN with over 30 years in private 
practice, I understand better than perhaps any other member of Congress 
the burden imposed on both medical practitioners and patients by 
excessive malpractice judgments and the corresponding explosion in 
malpractice insurance premiums. Malpractice insurance has skyrocketed 
to the point where doctors are unable to practice in some areas or see 
certain types of patients because they cannot afford the insurance 
premiums. This crisis has particularly hit my area of practice, leaving 
some pregnant women unable to find a qualified obstetrician in their 
city. Therefore, I am pleased to see Congress address this problem.
  However this bill raises several questions of constitutionality, as 
well as whether it treats those victimized by large corporations and 
medical devices fairly. In addition, it places de facto price controls 
on the amounts injured parties can receive in a lawsuit and rewrites 
every contingency fee contract in the country. Yet, among all the new 
assumptions of federal power, this bill does nothing to address the 
power of insurance companies over the medical profession. Thus, even if 
the reforms of H.R. 5 become law, there will be nothing to stop the 
insurance companies from continuing to charge exorbitant rates.
  Of course, I am not suggesting Congress place price controls on the 
insurance industry. Instead, Congress should reexamine those federal 
laws such as ERISA and the HMO Act of 1973, which have allowed insurers 
to achieve such a prominent role in the medical profession. As I will 
detail below, Congress should also take steps to encourage contractual 
means of resolving malpractice disputes. Such an approach may not be 
beneficial to the insurance companies or the trial lawyers, buy will 
certainly benefit the patients and physicians, which both sides in this 
debate claim to represent.
  H.R. 5 does contain some positive elements. For example, the language 
limiting joint and several liabilities to the percentage of damage 
someone actually caused, is a reform I have long championed. However, 
Mr. Speaker, H.R. 5 exceeds Congress' constitutional authority by 
preempting state law. Congressional dissatisfaction with the 
malpractice laws in some states provides no justification for Congress 
to impose uniform standards on all 50 states. The 10th amendment does 
not authorize federal action in areas otherwise reserved to the states 
simply because some members of Congress are unhappy with the way the 
states have handled the problem. Ironically, H.R. 5 actually increases 
the risk of frivolous litigation in some states by lengthening the 
statue of limitations and changing the definition of comparative 
negligence!
  I am also disturbed by the language that limits liability for those 
harmed by FDA-approved products. This language, in effect, establishes 
FDA approval as the gold standard for measuring the safety and 
soundness of medical devices. However, if FDA approval guaranteed 
safety, then the FDA would not regularly issue recalls of approved 
products later found to endanger human health and/or safety.
  Mr. Speaker, H.R. 5 also punishes victims of government mandates by 
limiting the ability of those who have suffered adverse reactions from 
vaccines to collect damages. Many of those affected by these provisions 
are children forced by federal mandates to receive vaccines. 
Oftentimes, parents reluctantly submit to these mandates in order to 
ensure their children can attend public school. H.R. 5 rubs salt in the 
wounds of those parents whose children may have been harmed by 
government policies forcing children to receive unsafe vaccines.
  Rather than further expanding unconstitutional mandates and harming 
those with a legitimate claim to collect compensation, Congress should 
be looking for ways to encourage

[[Page H1860]]

physicians and patients to resolve questions of liability via private, 
binding contracts. The root cause of the malpractice crisis (and all of 
the problems with the health care system) is the shift away from 
treating the doctor-patient relationship as a contractual one to 
viewing it as one governed by regulations imposed by insurance company 
functionaries, politicians, government bureaucrats, and trial lawyers. 
There is no reason why questions of the assessment of liability and 
compensation cannot be determined by a private contractual agreement 
between physicians and patients.
  I have introduced the Freedom from Unnecessary Litigation Act (H.R. 
1249). H.R. 1249 provides tax incentives to individuals who agree to 
purchase malpractice insurance, which will automatically provide 
coverage for any injuries sustained in treatment. This will insure that 
those harmed by spiraling medical errors receive timely and full 
compensation. My plan spares both patients and doctors the costs of a 
lengthy, drawn-out trial and respects Congress' constitutional 
limitations.
  Congress could also help physicians lower insurance rates by passing 
legislation, such as my Quality Health Care Coalition Act (H.R. 1247), 
that removes the antitrust restrictions preventing physicians from 
forming professional organizations for the purpose of negotiating 
contracts with insurance companies and HMOs. These laws give insurance 
companies and HMOs, who are often protected from excessive malpractice 
claims by ERISA, the ability to force doctors to sign contracts 
exposing them to excessive insurance premiums and limiting their 
exercise of professional judgment. The lack of a level playing field 
also enables insurance companies to raise premiums at will. In fact, it 
seems odd that malpractice premiums have skyrocketed at a time when 
insurance companies need to find other sources of revenue to compensate 
for their losses in the stock market.
  In conclusion, Mr. Speaker, while I support the efforts of the 
sponsors of H.R. 5 to address the crisis in health care caused by 
excessive malpractice litigation and insurance premiums, I cannot 
support this bill. H.R. 5 exceeds Congress' constitutional limitations 
and denies full compensation to those harmed by the unintentional 
effects of federal vaccine mandates. Instead of furthering 
unconstitutional authority, my colleagues should focus on addressing 
the root causes of the malpractice crisis by supporting efforts to 
restore the primacy of contract to the doctor-patient relationships.
  Mr. STRICKLAND. Mr. Speaker, I speak on the floor today in opposition 
to H.R. 5 and in opposition to the closed rule under which we are 
debating the bill.
  I have heard from doctors and hospitals throughout my district that 
they are struggling with high malpractice rates. I think we all 
recognize that this is a big problem in many regions of the country, 
and I believe we must take action to ensure patients can continue to 
access quality and timely health care. In my rural Ohio district, 
access to care is a constant problem for many of my constituents. I 
hear the voices of the family practice physicians who tell me they no 
longer may be able to afford to deliver babies. In some cases in Ohio, 
pregnant women must travel long distances for prenatal care and 
delivery services because there is only one doctor providing these 
services throughout a county. Something must be done, but I do not 
think H.R. 5 gets it done.
  These are the reasons I have cosponsored H.R. 1124, which has been 
introduced by Rep. Dingell. H.R. 1124 would address high malpractice 
rates through moderate tort reforms, requiring attorneys to submit a 
certificate of merit declaring a case to be meritorious, and requiring 
medical malpractice insurance companies to dedicate at least 50 percent 
of the savings from these tort reforms to reducing the insurance 
premiums paid by physicians and other health professionals. In 
addition, H.R. 1124 attempts to look at the broad issues that may have 
contributed to the high malpractice rates doctors across the country 
are facing by establishing an independent advisory commission on 
medical malpractice insurance. I wish Congress had acted quickly and in 
a bipartisan fashion last year--had we done so, we may already have 
more answers about why rates are now as high as they are. And finally, 
H.R. 1124 would create a grants program through the Department of 
Health and Human Services to ensure that areas affected by high 
malpractice rates do not suffer a shortage of providers. However, we 
will not even hear debate about these provisions or others because the 
Leadership passed a closed rule that limits debate to the base bill. 
This does a disservice to the American people, to the House, and to the 
health care providers we want to help.
  I believe H.R. 5 will not address the high malpractice rates our 
doctors are confronting. H.R. 5 fails to address or even acknowledge 
the complicated nature of this problem: my colleagues who have 
introduced H.R. 5 haven't considered how the insurance industry may 
have contributed to the high rates or considered how individual states' 
systems have affected malpractice rates.
  Throughout the Energy and Commerce Committee's consideration of H.R. 
5, I spoke about two provisions in H.R. 5 that I strongly oppose.
  First, H.R. 5 would limit the liability of HMO's, drug companies, and 
nursing homes. These companies have never come to me to explain why 
their liability should be limited; in fact, I strongly believe 
consumers should have the right to use every tool possible to collect 
damages if they are injured by a drug or device company whose product 
is defective. My constituents have access to prescription drugs--the 
drugs are there in the pharmacy, ready to be purchased, and the drug 
companies aren't going out of business. Unfortunately, many of my 
constituents, especially seniors, can't afford to pay the prices these 
companies are charging. Since the drug companies are doing quite well, 
I think it's safe to say that they don't need the further protections 
H.R. 5 would afford them.
  Second, I cannot support H.R. 5 because of its $250,000 limit on 
noneconomic damages. Noneconomic damages are awarded by a jury to 
compensate a victim for intangible pain and suffering. These 
noneconomic damages compensate for real, permanent harms that are not 
easily measured in terms of money, including blindness, physical 
disfigurement, loss of fertility, loss of limb, loss of mobility, and 
the loss of a child.
  Noneconomic damages are often very important to low income adults, 
women, and children who often would not recover a large economic damage 
award when they are injured. In addition, someone whose injury is 
purely cosmetic may not have economic damages because the injury 
doesn't directly affect his or her ability to work. For example, the 
facial disfiguration 17-year-old Heather Lewinski has had to live with 
for the past 9 years because when she was 8 years old a plastic surgeon 
committed clear malpractice and scarred her for life. The years of pain 
and suffering Heather has lived with and testified to before the Energy 
and Commerce Committee two weeks ago are real. Heather's lawsuit 
against the plastic surgeon who injured her resulted in zero economic 
damages, but she did receive compensation in the form of noneconomic 
damages. H.R. 5 would have limited her award to $250,000. I cannot vote 
for legislation that would arbitrarily limit the damages that might be 
so important to the average American who finds themselves injured 
through medical malpractice. Although proponents of H.R. 5 contend that 
the bill will limit frivolous lawsuits, I believe it will not do so; 
instead, this provision would arbitrarily cap meritorious claims of 
malpractice.
  I ask my colleagues: if we trust our jury system to make decisions 
about life and death, I believe we must be able to trust that jury 
system to make decisions about money.
  The increase in malpractice rates is a huge problem for doctors and 
hospitals, and that is why I wish this bill had been crafted with input 
from the leaders of both parties. At the least, I wish we had the 
benefit of an open rule that would allow real debate here on the floor. 
I will not support this bill because I think it fails to prevent 
frivolous lawsuits, fails to address the problems with the insurance 
industry, and fails to provide direct relief to communities that are 
struggling with access problems resulting from high malpractice rates.
  Mr. SHAYS. Mr. Speaker, I rise in support of the medical malpractice 
reforms contained in H.R. 5, the HEALTH Act. This legislation will help 
prevent frivolous litigation and significantly limit the practice of 
``defensive medicine,'' which has contributed to spiraling health care 
costs.
  H.R. 5 caps noneconomic at $250,000, but doesn't place any limit on 
the economic damages which plaintiffs can recover. Excessive jury 
awards have driven the cost of health care up for everyone, so in my 
mind, there has to be a limit on how much juries can award victims in 
non-economic and punitive damages. The HEALTH Act is critical to 
retarding the explosion in health costs and making insurance more 
affordable to the 41 million Americans who lack it.
  The dramatic increases in insurance rates which many physicians have 
experienced over the past year also prevent them from actually 
practicing medicine. Many physicians I have spoken to are at wits' end 
trying to figure out how to maintain their practice and pay these 
exorbitant costs.
  On March 4, the American Medical Association added Connecticut to the 
list of states facing crises in their medical malpractice insurance 
rates. The organization also cited Connecticut as a state where a large 
number of physicians have ended their practices because of the high 
medical malpractice insurance rates.
  These malpractice reforms, which are based on a proven California 
law, will make much-needed changes to the federal civil justice system 
without denying the legal rights of legitimate plaintiffs. It is 
imperative we move forward on this reform to discourage abuse of

[[Page H1861]]

our legal system and curb the unsustainable growth of medical costs in 
our country.
  Mr. Speaker, I strongly support the HEALTH Act because it will bring 
meaningful reform to a flawed system. I urge my colleagues to vote for 
this legislation.
  Ms. KILPATRICK. Mr. Speaker, H.R. 5 is the Republican's quick fix to 
the health care crisis across the nation. They address the problem of 
increased insurance cost for medical malpractice, but have proposed a 
contorted theory for fixing it. An in-depth look at H.R. 5 shows that 
it does absolutely nothing to implement ways to decrease insurance 
premium costs, and furthermore, it does initiate means to increase the 
availability of medical malpractice insurance. For the foregoing 
reasons, I voted ``no'' on this passage.
  H.R. 5 will limit the amount of non-economic damages that a patient 
can recover in a malpractice suit and it sets a bar for punitive damage 
recovery that is nearly impossible to reach. Overall, this bill limits 
the amount of recovery for all patients by providing a one-size-fits-
all solution. How can we limit what a jury can award to an individual 
who has lost her/his right to reproduce because of a doctor's or 
medical manufacturer's negligence? How can we limit damage awards to an 
individual who has been paralyzed as a result of their negligence? How 
can we set a standard that is so difficult to meet that it will reduce 
the opportunity that plaintiffs will have to punish these defendants 
for their malicious acts? H.R. 5 is moving away from fixing the crisis 
in our health care industry and leaning towards making it worse by 
essentially punishing the victims.
  Mr. Speaker, we need a bill that acts fast to help doctors and the 
medical industry sustain themselves financially. Right now, as we 
debate H.R. 5, thousands of doctors are leaving their respective states 
because they cannot afford the high insurance premiums. Doctors are now 
taking on much heavier loads of patients, much more than some of them 
can handle. To such as extent, some say that their situation is ripe 
for potential negligence cases, as they are not able to devote the 
attention necessary for the patient. They need our help now, Mr. 
Speaker, and we cannot change their situation by selling unfounded 
limits on non-economic damages.
  Additionally, we must work to curb rogues from bringing fraudulent 
malpractice claims that flood our courtrooms, which are factored into 
the issue of high insurance premiums. For example, we should not 
prohibit a justified victim from receiving $750,000 in non-economic 
damages, but rather, we should aim to deter those rogues from each 
bringing fraudulent claims for non-economic damages worth $250,000. 
H.R. 5 does not provide for any differentiation between legitimate 
claims and the many unwarranted claims that bring a halt to judicial 
economy every day.
  The Democratic substitute is superior because it would have sought 
and punished rogues for bringing fraudulent cases. It would not have 
capped non-economic damages or punitive damages. The substitute 
commissioned a study to assess the medical malpractice issue and 
determine how we can better address and then eliminate the problem. As 
for the current crisis, the substitute would authorize the Department 
of Health and Human Services (HHS) to provide grants to geographic 
areas that experienced extreme shortages of health providers due to the 
high premiums.
  Although the Democratic substitute was superior for this crisis 
situation, the Republicans used their control of the House to prevent 
the substitute from being brought to the floor for a debate, along with 
any amendments that Democrats would have offered. This is undemocratic 
and an irresponsible use of leadership. The House floor is where all 
members should have the opportunity to discuss various ideas, views or 
bills from both sides of the aisle. To preclude that possibility is 
undemocratic. Mr. Speaker, I do not agree with the Republicans 
regulation of this very important issue and I also vehemently disagree 
with H.R. 5.
  Mr. COSTELLO. Mr. Speaker, I rise today in opposition to H.R. 5, the 
HEALTH Act. There is no question that medical liability insurance rates 
are out of control. These high insurance costs are threatening to put 
many doctors and other health care professionals out of business and 
limit access to health care. However, I cannot in good faith support 
legislation that limits the rights of patients, victims, and their 
families while protecting the health insurance industry. HMOs and big 
health insurers should not receive special treatment; they are not 
above the law and should not be exempt from responsibility through this 
legislation.
  Under H.R. 5, insurance carriers can still raise rates any amount, at 
anytime. The Republican Leadership refused to allow free and fair 
debate by not allowing a substitute or any amendments to be debated and 
voted upon by the House of Representatives. The substitute would reform 
malpractice insurance carriers, which is essential in solving the 
medical liability crisis. It would also weed out frivolous lawsuits 
without restricting the rights of legitimate claims.
  H.R. 5 is a one-size-fits-all approach that places caps on non-
economic and punitive damages and does not address the issue of 
frivolous lawsuits. When a stay-at-home mother, child, or senior 
citizen dies or suffers irreversible harm, there is no economic loss 
because it is impossible to prove damages from loss of income. H.R. 5 
takes away the rights of parents who lose children, husbands who lose 
wives, children who lose parents, and patients who have very real 
losses that are not easily measured in terms of money. These caps 
imposed in H.R. 5 unfairly take away the rights of victims of medical 
malpractice to receive compensation for their injuries.
  H.R. 5 is modeled after the state of California's 1975 reform laws; 
however, my Republican colleagues give a false impression of the 
ramifications of that law. For more than a decade after California 
passed the 1975 law limiting damages in medical malpractice lawsuits, 
doctors' premiums continued to rise faster, overall, than the national 
rate of inflation. Once voters enacted Proposition 103, a measure to 
cap all insurance rates in California, premiums leveled off. The ballot 
initiative curbed the premiums, not the law implementing caps.
  Physicians in Illinois and across the country are facing skyrocketing 
medical liability premiums, and for many providers, medical liability 
insurance is either unaffordable or completely unavailable. I believe 
something needs to be done to derail frivolous lawsuits and reform the 
insurance industry. Insurers' business practices for accounting and 
pricing have contributed sharply to the current problem. H.R. 5 does 
not reform the insurance industry, places unfair, restrictive caps on 
victims, and does not address frivolous lawsuits. For these reasons, I 
oppose H.R. 5.
  Mr. GARRETT of New Jersey. Mr. Speaker, it's always easier to fix 
blame than to find a solution. That's certainly true when it comes to 
the health care accessibility crisis we have right now in America.
  In state after state, including my home state of New Jersey, doctors 
are closing down or limiting their practices. Trauma centers are 
shutting their doors, and overall health care costs are rising 
dramatically because of medical liability problems. Who suffers? 
Thousands upon thousands of individual patients who need care--some who 
need critical care.
  Rather than solve this problem, some people want to distort the facts 
and point fingers to serve a large political agenda. They'd sacrifice 
access to medical care as part of their effort to prevent tort reform 
of any kind.
  Today, I have heard allegations that the real culprit is the lack of 
regulation over insurance company investment practices and pricing. As 
the former chairman of the New Jersey Assembly Insurance Committee, I 
can assure you that this is simply not the case. Insurance is a highly-
regulated industry, where state insurance departments oversee nearly 
every aspect of the marketplace, including product pricing and insurer 
investment practices.
  To be more specific, state insurance laws do not allow insurance 
companies to raise rates to make up for past investment losses. As 
Steve Roddenberry, a top Florida insurance official, said recently, and 
I quote, ``We cannot permit it.'' Furthermore, the stock market has 
very little influence on companies who write medical malpractice 
insurance. In 2001, stock market investments made up just 9 percent of 
the industry's portfolio. Just 9 percent.
  So it's simply not true that the lack of insurance regulation is 
causing premium increases. But what is causing those increases?
  In large part, it's because the insurers are paying out more than 
they're taking in. That's right--insurance is an income-and-expense 
business just like any other. And in today's medical malpractice 
marketplace, companies are being forced to spend more on claims than 
they can collect in premiums.
  The bottom line? The average medical malpractice insurance company is 
paying out $1.50 for every dollar it collects. That's not a recipe for 
success in the business world.
  And that's why we have this crisis.
  As long as insurance companies, many of which, by the way, are owned 
directly by their insured doctors, are faced with these losing 
scenarios, pressures on rates will continue unless something is done 
about what causes those companies to lose money.
  This leads me back to my original point. If the doctors and nurses 
and hospitals who care for our children, our seniors, and the neediest 
among us cannot afford to deliver that care, we have a much bigger 
problem than who's making some money in the stock market. And rather 
than point fingers, it's time we address the real issue of lawsuit 
abuse, so we can solve the problem and let the health care system start 
working again.
  Mr. Speaker, patient access to care in jeopardized. Physicians are 
being forced to limit services and practice defensive medicine and 
patients are bearing the burden, often being

[[Page H1862]]

forced to travel hundreds of miles to the next available doctor in 
order to receive life-saving care.
  I strongly encourage my follow members to pass the HEALTH Act, 
providing a much-needed, common sense solution toward reforming 
America's medical justice crisis. Together, let's ensure that patients 
get quality care first rather than gong to court.
  Mr. DeFAZIO. Mr. Speaker, I attempted to offer three of the thirty-
one amendments to H.R. 5, the HEALTH Act, last night. Inexplicably, 
these were disallowed out of hand.
  This rule is an abuse of the process. Yes, it might be payback to the 
Democrats based on some revisionist history, but more importantly, it's 
a payoff to the Republicans' generous benefactors in the insurance 
industry, and through this bill, a payoff to the pharmaceutical 
industry.
  The Republicans claim that the underlying bill, H.R. 5, will control 
insurance costs through so-called ``tort reform.'' This bill won't do 
that. In fact, in 1999, a senior executive at the American Tort Reform 
Association conceded that ``We wouldn't tell you or anyone that the 
reason to pass tort reform would be to reduce insurance rates.''
  This is the third crisis in medical malpractice in 25 years. Each of 
these ``crises'' happens to coincide with recessions, stock market 
downturns, and insurance industry investment losses.
  The insurance industry is an equal opportunity market abuser. They 
legally can and regularly do collude to raise rates and limit 
availability of all lines of insurance. If this ``crisis'' in medical 
malpractice insurance is due to a malpractice crisis then why also is 
there a crisis in health insurance, homeowners' insurance, auto 
insurance, and general liability insurance? Health insurance costs are 
up 13 percent, homeowners insurance, 8 percent, and auto insurance, 8.5 
percent. Maybe it's time the insurance industry was subject to the same 
laws as other industries.
  Mr. Speaker, the solution that will bring relief and improve access 
to our nation's physicians will start with a repeal of the antitrust 
exemption of the insurance industry. Legislation like H.R. 5 simply 
allows the insurance industry to profit off the backs of both doctors 
and patients.
  Mr. KIND. Mr. Speaker, I rise today in opposition to the HEALTH Act, 
H.R. 5. Although I support the concept of sensible medical malpractice 
laws, this bill goes too far in defending negligence and not far enough 
in protecting patients.
  In my home state of Wisconsin, we have medical malpractice laws that 
work. The components of this successful law include a cap on non-
economic damages of $442,000, which is indexed annually for inflation; 
a requirement that all providers carry malpractice insurance; and a 
victims' compensation fund.
  The victims' compensation fund is a unique entity that has served 
both patients and health care providers well. The fund operates by 
collecting contributions from Wisconsin health care providers and 
paying the victims once an award has been determined. The physicians 
are liable only for the first $1 million in an award. If the award 
exceeds $1 million, the compensation fund will pay the remainder of the 
award.
  A major problem with H.R. 5 is that it goes beyond medical 
malpractice law by including the provisions regarding pharmaceutical 
and medical devices. The bill completely exempts from liability medical 
device makers and distributors as well as pharmaceutical companies, as 
long as the product complies with FDA standards. These provisions would 
have no effect on medical malpractice insurance rates. Instead, they 
would leave victims with little recourse and render them unable to hold 
pharmaceutical companies and the makers of defective medical products 
accountable for faulty or unsafe products.
  Another problem with H.R. 5 is that it overrides some state laws. 
While the bill would not override Wisconsin's own cap on non-economic 
damages, it would supersede our state laws regarding statute of 
limitations, attorneys' fees, and the criteria for punitive damages. 
This bill is a one-size fits all solution that is not right for 
Wisconsin.
  Although I oppose H.R. 5, I agree that medical malpractice issues 
must be addressed. Unfortunately, H.R. 5 is modeled after California's 
law, not Wisconsin's statutes. The successful components of Wisconsin's 
medical malpractice laws could be the basis for a much better bill. I 
urge my colleagues to go back to the drawing board to craft a consensus 
piece of legislation that both protects patients and keeps physicians 
in business. In Wisconsin, we are proud to have laws that effectively 
accomplish both of these goals. These laws are threatened, however, by 
the current proposal. Therefore, I oppose H.R. 5.
  Mr. SHAW. Mr. Speaker, I rise today in strong support of H.R. 5, the 
HEALTH Act. America's doctors are facing a full blown crisis. What's at 
stake is nothing less than the survival of the profession. What's to 
blame is astronomical medical liability insurance rates.
  Patients have watched helplessly as physicians have had to limit 
services or close their doors altogether and flee the state in search 
of more business friendly environments. Even worse, many young people 
who dreamed of studying medicine are choosing not to, realizing they 
won't be able to reconcile their dream with the reality of making a 
living.
  In my state of Florida, the situation is among the worst in the 
nation. The American Medical Association has labeled Florida as one of 
19 ``in crisis'' regarding medical liability which can reach sums of 
over $200,000 annually. When it's easier to sue a doctor than to see a 
doctor, something has to be done.
  We know that the reforms in the HEALTH Act will actually lower the 
overall cost of healthcare. Doctors, laboring under a constant fear of 
being sued, have a natural tendency to practice defensive medicine--
ordering tests that may not be needed or refusing to perform more risky 
procedures. The direct cost of malpractice insurance and the indirect 
cost from defensive medicine raise the federal government's health care 
cost by at least $28 billion a year.
  It is clear that the current system of dispute resolution is not 
working. The entire industry suffers for the few bad eggs out there. 
Only 5% of doctors account for more than half of all the money paid out 
in malpractice suits, but all doctors pay the costs in their premiums. 
I believe it will take reform on the federal level to get the country's 
health system back on course and out of the courtroom and I therefore, 
support the HEALTH Act. I urge a ``yes'' vote on H.R. 5.
  Mr. BISHOP. Mr. Speaker, I rise today to oppose H.R. 5.
  Mr. Speaker, this bill is dangerous because it proposes a one-size-
fits-all limit, regardless of the circumstances. It supersedes the laws 
of all fifty states and will not solve the problem of high insurance 
costs.
  The real culprit is the insurance industry. All insurance premiums--
including medical malpractice, automobile and homeowner policies--have 
seen a drastic increase in the past few years. These increases are not 
unique to medical malpractice. When the stock market returns and 
interest rates are high, malpractice premiums go down. When investment 
income goes down insurance companies increase premiums and reduce 
coverage. This is a fabricated ``liability insurance crisis.'' What we 
actually have is an ``insurance malpractice crisis.''
  Those who support restrictions on medical malpractice awards must 
explain these arbitrary limits to the parents of Jessica Santillan, the 
young girl who died after receiving the wrong organs from a heart and 
lung transplant operation at Duke University Hospital.
  Because of cases like this, Congress must expand, not limit patient's 
rights.
  This bill does not address the high cost of insurance. Instead it 
limits meritorious cases and valid judgments. An exhaustive study of 
the court system by the University of Georgia concluded that ``there is 
no evidence of an explosion in tort filings, and there are few signs of 
run-a-way juries.'' In contrast, this bill will hurt real people with 
real losses. I urge my colleagues to vote against this bill and defeat 
this fraud on the public.
  Mr. CROWLEY. Mr. Speaker, a lot of people on the other side have one 
crucial fact wrong--capping medical malpractice awards does not mean 
insurance rates will fall.
  I have charts here that compare the average insurance premium for 
states with damage caps versus the average insurance premium for states 
with no caps.
  For OB/GYN doctors, supposedly a group especially hard hit by medical 
malpractice awards--we find that OB/GYNs in states without caps on 
damages pay $44,485 in insurance. OB/GYNs in states with caps on 
damages pay $43,010--a ``whopping'' 3.4 percent difference.
  For general surgery doctors, they pay $26,144 in premiums if they are 
in a state with no caps on damages. They pay $602 more--not less--if 
their state caps malpractice awards.
  Look, if we want to decrease medical malpractice insurance costs for 
doctors, then let's talk about that.
  Let's talk about investigating insurance company pricing practices.
  Or, if we want to cap something, then let's cap the actual problem, 
insurance rates.
  But to put the blame for rising insurance costs on victims--that's 
not only cruel, it's completely false.
  Mrs. McCARTHY of New York. Mr. Speaker, I rise today in strong 
opposition to H.R. 5, the HEALTH Act. As a nurse, I understand all too 
well the high cost of malpractice insurance and I recognize the crisis 
this is creating in our healthcare system, particularly in areas of 
high-risk procedures. I want a solution to fix this problem, but H.R. 5 
is not the solution to helping this crisis.
  H.R. 5 will only make this crisis worse. H.R. 5 exempts HMOs, 
pharmaceutical companies, and the FDA from punitive damage awards.

[[Page H1863]]

This means that HMOs will continue to make medical decisions for 
patients based on what's best for their bottom line and not what is 
best medicine for the patients they serve. Under this legislation, a 
pharmaceutical company manufactures a drug or the FDA approves a 
product that proves to be harmful or deadly, a patient's family is 
limited in their recourse. After last year's Congressional debate, on 
the need to hold HMOs accountable for their actions I am shocked that 
anyone who supported the Patient's Bill of Rights can vote for this 
legislation.
  In addition, by capping the punitive damages to $250,000, this bill 
unfairly penalizes children, the elderly, and mothers who stay at home 
since it is impossible to prove economic damages from lost wages. The 
only compensation these patients have is non-economic or punitive 
damages.
  Mr. Speaker, I am appalled at the arrogance of the Republican 
leadership, for prohibiting Members from offering any amendments to 
improve this legislation in any way shape or form.
  Mr. Speaker, had I been allowed to offer an amendment, I would have 
offered the following to improve this legislation:
  Reducing frivolous lawsuits.--We need to limit the amount of time 
during which a patient can file a medical malpractice action to no 
later than three years from the date of injury, or three years from the 
date the patient discovers the injury. And require an affidavit by a 
qualified specialist before any medical malpractice action may be 
filed. This ``Qualified Specialist'' would be 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.
  Reducing premiums.--We should require medical malpractice insurance 
companies to annually project the savings that will result from the 
anti-price fixing mechanisms required by the Democrat substitute. 
Insurance companies must also develop and implement a plan to annually 
dedicate at least 50 percent of those savings to reduce the insurance 
premiums that medical professionals pay.
  Solving healthcare professionals shortage.--We need to provide 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 providers as a result of dramatic increases in malpractice 
insurance premiums.
  Mr. Speaker, I urge all my colleagues to vote against H.R. 5.
  Mr. WYNN. Mr. Speaker, the issue of high premiums for medical 
malpractice insurance is an important issue to doctors and patients. It 
is important that we lower insurance premiums, giving patients greater 
access to care. However, I am opposed to H.R. 5, the HEALTH Act.
  First, tort reform has historically been the province of the States. 
All but 14 States, have some form of caps on medical malpractice suits. 
Thus, there is no need for Federal intervention.
  However, I am not convinced that medical malpractice litigation alone 
has caused the increase in medical malpractice premiums. There is 
convincing evidence that suggests that the rise in medical malpractice 
liability premiums stems from poor business practices by many insurance 
companies. Insurance carriers in several cases appear to have relied on 
the investments in the booming stock market of the 1990s to price 
premiums at levels below the market price. Today's premiums seem 
designed to offset losses suffered when the market soured.
  Meanwhile, it is unclear that even capping noneconomic damages in 
medical malpractice cases would lower premiums. Since California passed 
MICRA and capped noneconomic damages in the 1970s, their premiums have 
risen at rates above inflation.
  Lastly, it took the 1985 passage of Proposition 103, which imposed 
price controls on premiums, to control the rising costs of premiums in 
California. Even with caps, California premiums are eight percent 
higher than in States without caps.
  When considering this issue, we should not just consider tort reform, 
but examine the business and accounting practices of medical 
malpractice insurance carriers.
  In committee, I introduced a substitute amendment to the underlying 
bill. The amendment would have created a medical malpractice commission 
to study the rising costs of medical malpractice insurance.
  Last year, the Health Subcommittee held a hearing on the rising 
premiums. However, the committee never adequately considered the impact 
of the business practices employed by carriers on the rising cost of 
medical malpractice insurance. That is the real issue.
  To date, the government has not fully examined all of the possible 
root causes for the rise in medical malpractice insurance.
  My amendment in committee would have stripped the underlying bill and 
created a Federal bipartisan commission of eight members to study the 
cause of rising medical malpractice premiums during the last 20 years.
  Specfically, the commission would look at the investment, accounting, 
and pricing practices of carriers, as well as jury awards in medical 
malpractice cases to determine what is causing the rise in premiums.
  We all deserve our day in court; the case for caps on noneconomic 
damages has not yet been made. Before placing an unreasonably low cap 
on noneconomic damages in medical malpractice suits, let's sufficiently 
study the issue and determine the root cause for the rising premiums.
  Mr. PITTS. Mr. Speaker, I rise today in support of H.R. 5.
  Medical liability reform is one issue on which we cannot afford to 
waste time. In my home State of Pennsylvania, medical liability is not 
just a problem; it's a crisis. Medical liability rates are up 81 
percent in Pennsylvania, and higher for some specialties. Every year, 
$22 billion is sucked out of the American economy due to excessive 
medical liability claims. In Pennsylvania alone, there are $1.2 billion 
in payouts each year. That's $1,000 for every man, woman, and child in 
the Commonwealth. As a result, insurance companies are fleeing and many 
doctors cannot afford--financially nor professionally--to continue to 
practice medicine in the State.
  Last year, Chester County Hospital, in my district, came very close 
to taking the drastic step of closing its maternity ward when insurance 
for the obstetricians skyrocketed. The doctors reported that they would 
have to discontinue offering care at that hospital. Thankfully, the 
hospital stepped in at the last minute with a temporary solution and 
actually put these independent physicians on their payroll in order to 
provide coverage for them through the hospital captive insurance 
company. Since Chester County Hospital does twenty-one hundred or so 
deliveries a year, this load was too big for other providers in the 
area to pick up. Women would have had to leave Chester County to have 
their babies.
  Lancaster General Hospital, also in my district, had to abandon plans 
to open a new clinic to serve the poor in Lancaster City when it 
learned that it would have to pay $1.5 million more for malpractice 
insurance. This is unacceptable. We cannot wait any longer to address 
this crisis.
  Pennsylvania is not alone. In fact, most States face this same 
crisis. Patient access to health care is on the decline. It is 
alarming. Unless we can reign in the costs of medical liability, men, 
women, and children across the country will suffer from lack of access 
to health care. Our health care system cannot support nor afford the 
big payouts of medical liability lawsuits.
  H.R. 5 is not simply an important bill, but a critical one. It will 
inject predictability and fairness into the medical liability process.
  The bottom line is this: If you care about patient access to health 
care and are concerned about the rampant increase in the cost of health 
care, vote for this bill that is before us today.
  Vote for H.R. 5.
  Mr. NEY. Mr. Speaker, I rise today to express my support for H.R. 5, 
the Help Efficient, Accessible, Low-Cost, Timely Healthcare Act of 
2003. Our healthcare system is currently in a crisis. Medical 
malpractice insurance rates have risen to epidemic levels in many areas 
of the country--so much so that it is a national problem, not just a 
state or local issue. For many physicians, their rates have risen at 
factors of over four times the level that they experienced when they 
began practicing medicine.
  Mr. Speaker, imagine having to pay upwards of $130,000 to $150,000 
out of your own pocket to do business. This is what our doctors are 
experiencing.
  Statistics such as these have far reaching implications and effects 
on our Nation's healthcare system. As insurance rates rise, the costs 
to do business rise, and the costs to consumers and patients rise. The 
end result is that hardworking Americans are paying the tab for 
unwieldy lawsuits. The HEALTH Act will help to lessen the medical 
liability of healthcare professionals and will thus lower the costs of 
healthcare to all Americans. It will reduce these lottery style 
lawsuits and will improve the protections for victims of malpractice.
  This bill allocates damages fairly by holding a party liable only for 
his or her degree of fault. It also requires that a jury be informed of 
any payments already made, allowing for consideration of payment by 
other tortfeasors. The act does provide for full compensation of 
economic damages, such as future medical expenses and loss of future 
earnings, and it does not limit damages recoverable for physical 
injuries resulting from a provider's care nor does it cap punitive 
damages.
  Instead, it places reasonable limits on punitive damages. They would 
be limited to the greater of: Two times a patient's economic damages, 
or $250,000. The HEALTH Act does limit unquantifiable, noneconomic 
damages,

[[Page H1864]]

such as pain and suffering, to $250,000. Patients will also be ensured 
that there will be funds to cover future medical expenses, and that a 
damage award will not risk bankrupting the defendants. The bill 
achieves this by allowing payments for future medical expenses to be 
made periodically, rather than in a single lump sum.
  In conclusion, Mr. Speaker, for the sake of America's patients and 
healthcare system, I urge my colleagues to put partisanship aside and 
to pass this important piece of legislation.
  Mr. Baca. Mr. Speaker, I come to the floor today in opposition to 
H.R. 5. I oppose this legislation because it will do nothing to change 
the current liability rates for doctors and it will punish America's 
senior, children, and poor people.
  People must realize that if this bill is passed, patients will be 
limited to actual damages only. That means a child or senior citizen 
who doesn't have income would receive only $250,000 for their injuries 
but a CEO with the same injury could be compensated millions simply 
because his income is higher.
  I just don't see the difference. Under this bill if a homemaker or a 
waitress from my district who works just as hard as a CEO goes into the 
hospital and is permanently disabled, she would receive $250,000. But 
if Bill Gates or Donald Trump goes into the hospital and experiences 
the same injury, a jury can award them millions.
  Why don't the Republicans believe that the waitress or the homemaker 
deserve just compensation? Why do Republican's believe that a CEO's 
injury is worth more than our daughter's, son's, parent's, or 
grandparent's? Once again, we are seeing legislation from the 
Republicans that benefits only the wealthy.
  Insurances companies are currently gouging our Nation's doctors and 
it needs to stop. But, capping punitive damages at $250,000 will not 
help doctors--it will only hurt patients.
  I am horrified that my colleagues on the other side of the aisle want 
to trump the decisions made by juries and tell an injured patient who 
has just lost their eyesight or a limb due to gross negligence that 
their injury is worth only $250,000.
  The patient could be in pain for the rest of their life. The 
Republicans want to take the power to decide away from the jury and 
tell everyone that their pain and suffering is only worth a mere 
$250,000--no matter how painful the injury, no matter how permanent the 
damage.
  And the Republicans think that once medical malpractice claims are 
capped at $250,000 that insurances rates will drop. I hate to break it 
to the Republicans, but we tried that system in California. Over a 12-
year-period rates rose 190 percent. It wasn't until we passed sensible 
insurance reform that doctors experienced relief from staggering 
insurances rates.
  We need to get a grip on insurance rates to help the doctors, but not 
at the expense of injured patients. H.R. 5 does not make sense, we need 
to stop further punishing injured patients and pass sensible 
legislation that really helps doctors.
  Mr. MOORE of Kansas. Mr. Speaker, I rise in opposition to H.R. 5.
  Last year, when the House approved legislation virtually identical to 
H.R. 5, I expressed my strong belief that Congress should address the 
medical malpractice insurance system as a whole. My calls went 
unheeded.
  I believed last year, as I believe now, that a solution to the 
problem of rapidly rising medical malpractice insurance premiums must 
address all of the factors that contribute to premium cost. I have 
spoken with many physicians in my congressional district about this 
problem, and almost to a person, they agree with my assessment that 
Congress should look at the entire health care system for a solution to 
this very complex problem. Neither this legislation nor the hearings 
held in House committees addressed the pricing and accounting practices 
of medical malpractice insurance companies. The legislation before us 
addresses neither the responsibilities of the medical profession, 
through state medical boards, to police itself, nor the barriers that 
exist in some states to keep the profession from doing so. This 
legislation does not provide solutions to address the problem of 
medical errors nor does it provide one dollar to help hospitals and 
physicians purchase existing technology that could dramatically reduce 
those errors. It is also clear that Congress has not clearly thought 
through the consequences of preempting the traditionally state-
regulated and state-monitored field of health care professions.
  I truly share the concern of many of my colleagues and those in the 
medical profession about the rising rate of medial malpractice 
premiums. Last week, in my office, representatives of the Kansas 
Medical Society expressed their concern that this legislation is 
overreaching and a threat to state laws in states like Kansas, where 
they believe that a delicate balance has been achieved between the 
interests of injured patients and the medical profession. Notably, many 
States, including those considered to be in ``crisis,'' have acted or 
are now acting to get their own houses in order.
  Mr. Speaker, I call on my colleagues to reject spurious, ill-
conceived and overtly political solutions, and join with me in an 
effort to attain a comprehensive understanding of our Nation's health 
care system. Then we can truly find a solution to this very real 
crisis.
  Mr. DELAHUNT. Mr. Speaker, the sponsors of this bill have assured the 
physicians of America that the bill will lower their insurance 
premiums. Yet it includes none of the provisions that would be 
necessary to bring about such a result.
  The bill does nothing to reduce the staggering number of medical 
errors that kill so many thousands of Americans each year.
  It does nothing to weed out the five percent of the medical 
profession who are responsible for 54 percent of the claims.
  It does nothing to regulate the rates that insurance companies charge 
for their policies.
  Instead of adopting any of these measures, the Republican majority 
has chosen to blame the victims--capping jury awards at artificially 
low levels that are insufficient to meet their needs, and that makes it 
difficult for them to find a qualified attorney who is willing to take 
their case.
  The cap on non-economic damages is cruelest to the most vulnerable: 
children and mothers who stay at home. They have no econimic damages. 
No loss of employment. No loss of past and future earnings. No loss of 
business opportunities. Apart from their medical bills, all of their 
losses are noneconomic--for pain and suffering. Physical impairment. 
Disfigurement.
  It's unconscionable for Congress to deprive these victims of the 
right to have a jury decide what their pain and suffering is worth.
  Stephen Olson was left blind and brain-damaged after an HMO refused 
to give him an $800 CAT scan when he was two years old. He'll need 
round-the-clock supervision for the rest of his life. The jury awarded 
him $7.1 million for his pain and suffering. But California has a cap 
of non-economic damages, so the judge was forced to reduce the award to 
$250,000. Is that really all he is owed for the irreversible damage 
that was done to him?
  Linda McDougal receive an unnecessary double mastectomy after doctors 
mixed up her lab results and erroneously told her that she had breast 
cancer. Under this bill, would receive a maximum of $250,000 for her 
lifetime of pain and disfigurement. Is that really all she is owed? Is 
that really all the compensation we would wish for our own mothers, 
sisters, and wives?
  The irony is that despite the claims of the bill's supporters, there 
is no reason to believe that the cap on non-economic damages will have 
a serious impact on insurance premiums. A report by the New Jersey 
Medical Society estimated that a state cap of $250,000 on non-economic 
damages might result in reductions of, at most, five-to-seven percent. 
Other studies suggest that insurance rates are affected less by the 
level of non-economic damages than by the amounts paid out for economic 
losses.
  And in California, whose 1975 Medical Injury Compensation Reform Act, 
known as MICRA, was the model for many of the provisions of this bill, 
there is little persuasive evidence that the law has brought about any 
reduction in premiums. Indeed, a 1995 study concluded that premiums 
increased dramatically during the decade following enactment of MICRA, 
and only stabilized once the voters imposed rate regulation under a 
1988 ballot measure known as Proposition 103.
  The sponsors of the bill are unwilling to take that step. Far be it 
from them to impose regulation on the insurance industry! Yet when it 
comes to litigation, these apostles of free markets opt for wage and 
price controls. They are horrified at the though that Congress would 
cap the amount of assets that wealthy bankrupts can shelter from their 
creditors, but have no compunction about capping the amount that 
malpractice victims can recover from their injuries.
  I suppose it's all a question of priorities. If medical care were 
really a priority for the majority, we'd be talking about increasing 
reimbursement rates. Improving the quality of medical training. 
Providing incentives for doctors to practice in underserved 
communities. Reducing the paperwork burden that drives dedicated 
physicians out of the profession. But we can't talk about any of these 
things. They cost money. And with new tax cuts promised and deficits 
mounting, investments in the health care system are simply not a 
priority.
  That's why we're debating a bill like this one instead. A bill that 
does nothing to address the legitimate concerns of physicians, while 
inflicting further harm on patients who have suffered enough.
  Mr. SHUSTER. Mr. Speaker, the rising costs of medical liability 
insurance in Pennsylvania are among the worst in the country. In fact, 
Pennsylvania physicians faced a 50 percent increase in insurance costs 
in 2002, with

[[Page H1865]]

an additional 50 percent hike expected this year. Physicians have moved 
from my district to other States to continue practicing medicine. 
Recently, one of the most efficient hospitals in my district was 
literally within an hour of closing its doors when its pathology 
department could not secure medical liability insurance the 11th hour. 
The threat of rising medical liability costs to quality patient care in 
central Pennsylvania is beyond a crisis situation. The time for the 
House to act is now.
  H.R. 5 is common-sense legislation aimed at reducing the skyrocketing 
medical liability costs that are threatening the availability of 
quality patient care in Pennsylvania and throughout the country. In 
addition, H.R. 5 protects the rights of patients with legitimate claims 
to receive compensation for economic losses, medicals costs, and lost 
wages.
  Mr. Speaker, the threat of frivolous medical liability litigation is 
endangering the ability of physicians in my district to provide quality 
patient care. Congress must do its part to ensure access to care is not 
jeopardized at the expense of lining the pockets of trial lawyers.
  I urge my colleagues to vote in favor of H.R. 5.
  Ms. MALONEY. Mr. Speaker, I rise today in opposition to H.R. 5, the 
Medical Liability Limitation Act.
  I represent many of the nation's premier health care and biomedical 
research institutions in the nation. As such, I have worked diligently 
to represent the interests of my district on health matters.
  On this issue in particular, I have met with numerous doctors and I 
agree, they need relief from the high cost of insurance premiums. 
Rising health costs are not just impacting doctors. High health costs 
are hurting consumers, hospitals, employers and the economy, in 
general.
  But H.R. 5 is not the right prescription!
  Because of the strict caps for pain and suffering, H.R. 5 will 
especially harm women, children, the elderly and disabled individuals 
who may not have significant economic losses to recover. Stay-at-home 
moms and caregivers for children or the elderly, in particular, will be 
denied the ability to seek adequate compensation for damages inflicted 
upon them. H.R. 5 also will be especially punitive to women because 
many kinds of injuries that happen mostly to females--like those that 
affect the reproductive system, that cause a loss of fertility, or that 
are inflicted through sexual assault--are largely compensated through 
pain-and-suffering awards and other non-economic loss damages.
  I met recently with a constituent who was a victim both of medical 
malpractice and pharmaceutical negligence. When she was in her mother's 
womb, her mother was prescribed DES at a time when reports about its 
ineffectiveness and its potential harmful effects on the fetus had 
already been circulated. Almost two decades later, she developed an 
adenocarcinoma, an aggressive cancer affecting her reproductive organs. 
Not only was she then misdiagnosed, her doctor prescribed treatments 
that were contraindicated and that hastened the growth of her cancer. 
The misdiagnosis resulted in extensive surgery and reconstruction 
resulting in her infertility and a lifetime of intense emotional and 
physical suffering. The pharmaceutical negligence, which was not 
accurately diagnosed for years--long after the statute of limitations 
would have expired under the terms of H.R. 5--has resulted in a 
lifetime of pain and a mountain of bills for follow-up medical care. If 
H.R. 5 had been the law when her mother had been prescribed DES, she 
would never have been awarded enough even to pay her extensive medical 
bills, let alone compensate her for years of pain and suffering.
  For several Congresses, we have worked to pass a patient's bill of 
rights, to make sure that doctors and patients make medical decisions, 
not bureaucrats. H.R. 5 is an anti-patient's bill of rights.
  H.R. 5 is too broad. Beyond the issue of medical malpractice, H.R. 5 
includes severe liability limitations for pharmaceutical companies, 
medical device manufacturers, nursing homes and assisted living 
facilities, and insurance companies.
  Unlike the Conyers/Dingell alternative which I strongly support, H.R. 
5 promises no relief from the high malpractice insurance rates paid by 
doctors and hospitals and serves as nothing more than a bailout for 
insurance companies who are passing on their investment losses to 
doctors.
  Vote ``no'' on H.R. 5.
  Ms. DeGETTE. Mr. Speaker, I think we all agree that there is a crisis 
in medical malpractice insurance rates. Unfortunately, this bill does 
not mention insurance rates or offer solutions for the doctors who are 
feeling the burden of high premiums.
  H.R. 5 relies on the misconception that savings from malpractice 
litigation reforms will relieve high insurance premiums. However, 
litigation is not the cause of high malpractice insurance rates. There 
has been no increase in the rate of malpractice claims filed in recent 
years and the average payout has remained steady over the past decade. 
In fact, the one state that proponents of malpractice litigation reform 
continually cite as a success is California. What they don't say is 
that California's malpractice insurance rates only stabilized after the 
state reformed its insurance system.
  Despite this evidence, proponents of H.R. 5 have continued to 
represent this bill as a relief for physicians, rather than what it 
really is--a bill that will add additional injury to patients who have 
suffered from medical malpractice.
  H.R. 5 would cap non-economic damages at an arbitrary amount of 
$250,000 for people who have been injured by malpractice. Non-economic 
damages compensate people for injuries that are very real, like 
permanent disfigurement, loss of sight or a limb, loss of fertility, 
and wrongful death. The cap on non-economic damages is unfair and 
should not become law.
  This bill tells people like Heather Lewinski, a 17 year old girl who 
suffered permanent facial disfigurement at the hands of a plastic 
surgeon who lied to her and her family, that the severe pain, trauma, 
and suffering that she went through is worth $250,000. The bill tells 
people like Linda McDougal, whose breasts were amputated after she had 
been misdiagnosed with cancer, that the loss of her breasts and dignity 
is only worth $250,000. And it tells the family of Jesica Santillan, 
the little girl who died because the hospital failed to ensure that the 
heart and lungs she was about to receive would be compatible with her 
blood type, that their little girl's life was only worth $250,000.
  Some advocates of H.R. 5 say that the bill only caps non-economic 
damages, not economic damages and that a person can receive full 
economic compensation for their injuries. Yet, this is unfair to the 
millions of Americans who do not work--retirees, stay-at-home moms, 
children, and seniors because they do not have economic damages. For 
example, Heather Lewinski, who underwent surgery when she was only 8 
years old, did not have any economic damages. Linda McDougal's medical 
bills were already paid for and her loss would not directly affect her 
future earning potential. Yet, she suffered emotional trauma and a loss 
of dignity. Is her loss worth an arbitrary amount that was determined 
by a group of politicians? I certainly don't think so.
  By adopting strict monetary caps on damages, Congress is creating a 
solution for a problem that does not exist. Medical malpractice claims 
are not increasing and juries are not making outrageous awards. 
According to the National Center for State Courts, there was no 
increase in the volume of medical malpractice claims between 1997 and 
2001. Additionally, of the 16,676 medical malpractice cases with awards 
in 2001, only 5 percent were for $1 million or more. Clearly, this 
represents an extraordinarily small number of cases. I do not believe 
we should be restricting the rights of patients to receive fair and 
adequate compensation for their losses because of this very small 
number of large awards.
  If we truly want to fix the real crisis that is plaguing our nation's 
doctors, we need to take a good look at the insurance industry. 
According to a study using the insurance industry's own data and 
conducted by Americans for Insurance Reform, while the total amount 
paid out over the past decade by malpractice insurers directly tracks 
the rate of medical inflation, the premiums that insurance companies 
charge doctors increase or decrease depending on the economy. In my 
state of Colorado, which has certain caps on damages, insurance 
companies took in over $119 million in premiums in 2001. Yet, they only 
paid out $36 million.
  We should be taking a comprehensive approach to this crisis instead 
of placing unfair burdens on patients. We should be looking at the 
insurance cycle, how insurers manage investments and reserves, and 
financial pressures that health care payers place on providers and how 
that affects the way care is delivered.
  Instead, we are considering a bill that is akin to curing a headache 
by amputating an arm. Arbitrarily limiting patients' rights is not fair 
and it will not solve the problem.
  Stand up for the rights of patients and oppose this bill.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I rise today in 
opposition to the Help Efficient, Accessible, Low-Cost, Timely 
Healthcare (HEALTH) Act. Tens of thousands of people die each year from 
preventable medical errors. But rather than reform the medical system 
to prevent needless deaths and injuries, doctors and big insurance 
companies are lobbying to limit the rights of injured patients to seek 
full recovery in the courts. This measure unfairly impacts women and 
low income patients.
  The HEALTH Act (H.R. 5) attempts to address the problem of high 
insurance costs for doctors by limiting punitive damages in medical 
malpractice cases to $250,000 and caps attorneys' fees under the guise 
of addressing

[[Page H1866]]

the rising cost of medical malpractice insurance. H.R. 5 caps non-
economic damages in the aggregate--regardless of the number of parties 
involved in the dispute.
  Despite its claim, H.R. 5 does nothing to directly address the 
problem of rising medical malpractice insurance rates for doctors. 
Malpractice insurance companies can expect a huge windfall from this 
legislation because it limits how much they have to pay out in claims, 
but does not address how much these insurance companies charge in 
premiums to doctors. The insurance industry has said that there is no 
guarantee of any specific savings from passage of this type of 
legislation.
  The major malpractice problem facing Texans is the unreliable quality 
of medical care being delivered, which is a result of frequent medical 
mistakes and a lack of doctor oversight by the state medical board.
  Government data show that ``repeat offender'' doctors are responsible 
for the bulk of malpractice payments. Between September 1990 and 
September 2002, 6.5 percent of Texas' doctors made two or more 
malpractice payouts worth a total of more than $1 billion. These 
represented 51.3 percent of all payments, according to information 
obtained from the federal government's National Practitioner Data Bank. 
Just 2.2 percent of the doctors made three or more payments, 
representing about a quarter of all payouts.
  For every $100 spent on health care in America, only $.66 has been 
spent on malpractice insurance. As patients are most often victimized 
by repeat offending doctors (a mere six percent of doctors in Texas are 
responsible for 46 percent of all malpractice), this bill does nothing 
to reduce negligence by doctors and hospitals, but decreases incentive 
to improve patient safety.
  Medical errors cause 3,260 to 7,261 preventable deaths in Texas each 
year. These errors cost families and communities $1.3 billion to $2.2 
billion annually in lost wages, lost productivity and increased health 
care costs. In contrast, medical malpractice insurance costs Texas's 
doctors less than $421.2 million annually.
  One more time the patient (consumer) gets the lump for being 
victimized. Vote against this rule and this bill under consideration..
  It is for these reasons that I will vote against the rule and the 
bill, H.R. 5, and I urge my Colleagues to vote against H.R. 5.
  The SPEAKER pro tempore. All time for debate has expired.
  Pursuant to House Resolution 139, the previous question is ordered.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.


               Motion to Recommit Offered by Mr. Conyers

  Mr. CONYERS. Mr. Speaker, I offer a motion to recommit.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. CONYERS. I am, Mr. Speaker.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:

       Mr. Conyers moves to recommit the bill H.R. 5 to the 
     Committee on the Judiciary and the Committee on Energy and 
     Commerce with instructions to report the same back to the 
     House forthwith with the following amendments:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Medical 
     Malpractice and Insurance Reform Act of 2003''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.

        TITLE I--LIMITING FRIVOLOUS MEDICAL MALPRACTICE LAWSUITS

Sec. 101. Statute of limitations.
Sec. 102. Health care specialist affidavit.
Sec. 103. Sanctions for frivolous actions and pleadings.
Sec. 104. Mandatory mediation.
Sec. 105. Limitation on punitive damages.
Sec. 106. Use of savings to benefit providers through reduced premiums.
Sec. 107. Definitions.
Sec. 108. Applicability.

   TITLE II--INDEPENDENT ADVISORY COMMISSION ON MEDICAL MALPRACTICE 
                               INSURANCE

Sec. 201. Establishment.
Sec. 202. Duties.
Sec. 203. Report.
Sec. 204. Membership.
Sec. 205. Director and staff; experts and consultants.
Sec. 206. Powers.
Sec. 207. Authorization of appropriations.

        TITLE I--LIMITING FRIVOLOUS MEDICAL MALPRACTICE LAWSUITS

     SEC. 101. STATUTE OF LIMITATIONS.

       (a) In General.--A medical malpractice action shall be 
     barred unless the complaint is filed within 3 years after the 
     right of action accrues.
       (b) Accrual.--A right of action referred to in subsection 
     (a) accrues upon the last to occur of the following dates:
       (1) The date of the injury.
       (2) The date on which the claimant discovers, or through 
     the use of reasonable diligence should have discovered, the 
     injury.
       (3) The date on which the claimant becomes 18 years of age.
       (c) Applicability.--This section shall apply to any injury 
     occurring after the date of the enactment of this Act.

     SEC. 102. HEALTH CARE SPECIALIST AFFIDAVIT.

       (a) Requiring Submission With Complaint.--No medical 
     malpractice action may be brought by any individual unless, 
     at the time the individual brings the action (except as 
     provided in subsection (b)(1)), it is accompanied by the 
     affidavit of a qualified specialist that includes the 
     specialist's statement of belief that, based on a review of 
     the available medical record and other relevant material, 
     there is a reasonable and meritorious cause for the filing of 
     the action against the defendant.
       (b) Extension in Certain Instances.--
       (1) In general.--Subject to paragraph (2), subsection (a) 
     shall not apply with respect to an individual who brings a 
     medical malpractice action without submitting an affidavit 
     described in such subsection if, as of the time the 
     individual brings the action, the individual has been unable 
     to obtain adequate medical records or other information 
     necessary to prepare the affidavit.
       (2) Deadline for submission where extension applies.--In 
     the case of an individual who brings an action for which 
     paragraph (1) applies, the action shall be dismissed unless 
     the individual (or the individual's attorney) submits the 
     affidavit described in subsection (a) not later than 90 days 
     after obtaining the information described in such paragraph.
       (c) Qualified Specialist Defined.--In subsection (a), a 
     ``qualified specialist'' means, with respect to a medical 
     malpractice action, a health care professional who is 
     reasonably believed by the individual bringing the action (or 
     the individual's attorney)--
       (1) to be knowledgeable in the relevant issues involved in 
     the action;
       (2) to practice (or to have practiced) or to teach (or to 
     have taught) in the same area of health care or medicine that 
     is at issue in the action; and
       (3) in the case of an action against a physician, to be 
     board certified in a specialty relating to that area of 
     medicine.
       (d) Confidentiality of Specialist.--Upon a showing of good 
     cause by a defendant, the court may ascertain the identity of 
     a specialist referred to in subsection (a) while preserving 
     confidentiality.

     SEC. 103. SANCTIONS FOR FRIVOLOUS ACTIONS AND PLEADINGS.

       (a) Signature Required.--Every pleading, written motion, 
     and other paper in any medical malpractice action shall be 
     signed by at least 1 attorney of record in the attorney's 
     individual name, or, if the party is not represented by an 
     attorney, shall be signed by the party. Each paper shall 
     state the signer's address and telephone number, if any. An 
     unsigned paper shall be stricken unless omission of the 
     signature is corrected promptly after being called to the 
     attention of the attorney or party.
       (b) Certificate of Merit.--(1) A medical malpractice action 
     shall be dismissed unless the attorney or unrepresented party 
     presenting the complaint certifies that, to the best of the 
     person's knowledge, information, and belief, formed after an 
     inquiry reasonable under the circumstances,--
       (A) it is not being presented for any improper purpose, 
     such as to harass or to cause unnecessary delay or needless 
     increase in the cost of litigation;
       (B) the claims and other legal contentions therein are 
     warranted by existing law or by a nonfrivolous argument for 
     the extension, modification, or reversal of existing law or 
     the establishment of new law; and
       (C) the allegations and other factual contentions have 
     evidentiary support or, if specifically so identified, are 
     likely to have evidentiary support after a reasonable 
     opportunity for further investigation and discovery.
       (2) By presenting to the court (whether by signing, filing, 
     submitting, or later advocating) a pleading, written motion, 
     or other paper, an attorney or unrepresented party is 
     certifying that to the best of the person's knowledge, 
     information and belief, formed after an inquiry reasonable 
     under the circumstances--
       (A) it is not being presented for any improper purpose, 
     such as to harass or to cause unnecessary delay or needless 
     increase in the cost of litigation;
       (B) the claims, defenses, and other legal contentions 
     therein are warranted by existing law or by a nonfrivolous 
     argument for the extension, modification, or reversal of 
     existing law or the establishment of new law; and
       (C) the allegations and other factual contentions have 
     evidentiary support or, if specifically so identified, are 
     reasonable based on a lack of information or belief.
       (c) Mandatory Sanctions.--
       (1) First violation.--If, after notice and a reasonable 
     opportunity to respond, a court, upon motion or upon its own 
     initiative, determines that subsection (b) has been violated, 
     the court shall find each attorney or party in violation in 
     contempt of court and shall require the payment of costs and 
     attorneys fees. The court may also impose additional 
     appropriate sanctions, such as striking the pleadings, 
     dismissing the suit, and sanctions plus interest, upon the 
     person in

[[Page H1867]]

     violation, or upon both such person and such person's 
     attorney or client (as the case may be).
       (2) Second violation.--If, after notice and a reasonable 
     opportunity to respond, a court, upon motion or upon its own 
     initiative, determines that subsection (b) has been violated 
     and that the attorney or party with respect to which the 
     determination was made has committed one previous violation 
     of subsection (b) before this or any other court, the court 
     shall find each such attorney or party in contempt of court 
     and shall require the payment of costs and attorneys fees, 
     and require such person in violation (or both such person and 
     such person's attorney or client (as the case may be)) to pay 
     a monetary fine. The court may also impose additional 
     appropriate sanctions, such as striking the pleadings, 
     dismissing the suit and sanctions plus interest, upon such 
     person in violation, or upon both such person and such 
     person's attorney or client (as the case may be).
       (3) Third violation.--If, after notice and a reasonable 
     opportunity to respond, a court, upon motion or upon its own 
     initiative, determines that subsection (b) has been violated 
     and that the attorney or party with respect to which the 
     determination was made has committed more than one previous 
     violation of subsection (b) before this or any other court, 
     the court shall find each such attorney or party in contempt 
     of court, refer each such attorney to one or more appropriate 
     State bar associations for disciplinary proceedings, require 
     the payment of costs and attorneys fees, and require such 
     person in violation (or both such person and such person's 
     attorney or client (as the case may be)) to pay a monetary 
     fine. The court may also impose additional appropriate 
     sanctions, such as striking the pleadings, dismissing the 
     suit, and sanctions plus interest, upon such person in 
     violation, or upon both such person and such person's 
     attorney or client (as the case may be).

     SEC. 104. MANDATORY MEDIATION.

       (a) In General.--In any medical malpractice action, before 
     such action comes to trial, mediation shall be required. Such 
     mediation shall be conducted by one or more mediators who are 
     selected by agreement of the parties or, if the parties do 
     not agree, who are qualified under applicable State law and 
     selected by the court.
       (b) Requirements.--Mediation under subsection (a) shall be 
     made available by a State subject to the following 
     requirements:
       (1) Participation in such mediation shall be in lieu of any 
     alternative dispute resolution method required by any other 
     law or by any contractual arrangement made by or on behalf of 
     the parties before the commencement of the action.
       (2) Each State shall disclose to residents of the State the 
     availability and procedures for resolution of consumer 
     grievances regarding the provision of (or failure to provide) 
     health care services, including such mediation.
       (3) Each State shall provide that such mediation may begin 
     before or after, at the option of the claimant, the 
     commencement of a medical malpractice action.
       (4) The Attorney General, in consultation with the 
     Secretary of Health and Human Services, shall, by regulation, 
     develop requirements with respect to such mediation to ensure 
     that it is carried out in a manner that--
       (A) is affordable for the parties involved;
       (B) encourages timely resolution of claims;
       (C) encourages the consistent and fair resolution of 
     claims; and
       (D) provides for reasonably convenient access to dispute 
     resolution.
       (c) Further Redress and Admissibility.--Any party 
     dissatisfied with a determination reached with respect to a 
     medical malpractice claim as a result of an alternative 
     dispute resolution method applied under this section shall 
     not be bound by such determination. The results of any 
     alternative dispute resolution method applied under this 
     section, and all statements, offers, and communications made 
     during the application of such method, shall be inadmissible 
     for purposes of adjudicating the claim.

     SEC. 105. LIMITATION ON PUNITIVE DAMAGES.

       (a) In general.--Punitive damages may not be awarded in a 
     medical malpractice action, except upon proof of--
       (1) gross negligence;
       (2) reckless indifference to life; or
       (3) an intentional act, such as voluntary intoxication or 
     impairment by a physician, sexual abuse or misconduct, 
     assault and battery, or falsification of records.
       (b) Allocation.--In such a case, the award of punitive 
     damages shall be allocated 50 percent to the claimant and 50 
     percent to a trustee appointed by the court, to be used by 
     such trustee in the manner specified in subsection (d). The 
     court shall appoint the Secretary of Health and Human 
     Services as such trustee.
       (c) Exception.--This section shall not apply with respect 
     to an action if the applicable State law provides (or has 
     been construed to provide) for damages in such an action that 
     are only punitive or exemplary in nature.
       (d) Trust Fund.--
       (1) In general.--This subsection applies to amounts 
     allocated to the Secretary of Health and Human Services as 
     trustee under subsection (b).
       (2) Availability.--Such amounts shall, to the extent 
     provided in advance in appropriations Acts, be available for 
     use by the Secretary of Health and Human Services under 
     paragraph (3) and shall remain so available until expended.
       (3) Use.--
       (A) Subject to subparagraph (B), the Secretary of Health 
     and Human Services, acting through the Director of the Agency 
     for Healthcare Research and Quality, shall use the amounts to 
     which this subsection applies for activities to reduce 
     medical errors and improve patient safety.
       (B) The Secretary of Health and Human Services may not use 
     any part of such amounts to establish or maintain any system 
     that requires mandatory reporting of medical errors.
       (C) The Secretary of Health and Human Services shall 
     promulgate regulations to establish programs and procedures 
     for carrying out this paragraph.
       (4) Investment.--
       (A) The Secretary of Health and Human Services shall invest 
     the amounts to which this subsection applies in such amounts 
     as such Secretary determines are not required to meet current 
     withdrawals. Such investments may be made only in interest-
     bearing obligations of the United States. For such purpose, 
     such obligations may be acquired on original issue at the 
     issue price, or by purchase of outstanding obligations at the 
     market price.
       (B) Any obligation acquired by the Secretary in such 
     Secretary's capacity as trustee of such amounts may be sold 
     by the Secretary at the market price.

     SEC. 106. USE OF SAVINGS TO BENEFIT PROVIDERS THROUGH REDUCED 
                   PREMIUMS.

       (a) In General.--Notwithstanding any other provision of 
     this title, a provision of this title may be applied by a 
     court to the benefit of a party insured by a medical 
     malpractice liability insurance company only if the court--
       (1) determines the amount of savings realized by the 
     company as a result; and
       (2) requires the company to pay an amount equal to the 
     amount of such savings to a trustee appointed by the court, 
     to be distributed by such trustee in a manner that has the 
     effect of benefiting health care providers insured by the 
     company through reduced premiums for medical malpractice 
     liability insurance.
       (b) Definition.--For purposes of this section, the term 
     ``medical malpractice liability insurance company'' means an 
     entity in the business of providing an insurance policy under 
     which the entity makes payment in settlement (or partial 
     settlement) of, or in satisfaction of a judgment in, a 
     medical malpractice action or claim.

     SEC. 107. DEFINITIONS.

       In this title, the following definitions apply:
       (1) Alternative dispute resolution method.--The term 
     ``alternative dispute resolution method'' means a method that 
     provides for the resolution of medical malpractice claims in 
     a manner other than through medical malpractice actions.
       (2) Claimant.--The term ``claimant'' means any person who 
     alleges a medical malpractice claim, and any person on whose 
     behalf such a claim is alleged, including the decedent in the 
     case of an action brought through or on behalf of an estate.
       (3) Health care professional.--The term ``health care 
     professional'' means any individual who provides health care 
     services in a State and who is required by the laws or 
     regulations of the State to be licensed or certified by the 
     State to provide such services in the State.
       (4) Health care provider.--The term ``health care 
     provider'' means any organization or institution that is 
     engaged in the delivery of health care services in a State 
     and that is required by the laws or regulations of the State 
     to be licensed or certified by the State to engage in the 
     delivery of such services in the State.
       (5) Injury.--The term ``injury'' means any illness, 
     disease, or other harm that is the subject of a medical 
     malpractice action or a medical malpractice claim.
       (6) Mandatory.--The term ``mandatory'' means required to be 
     used by the parties to attempt to resolve a medical 
     malpractice claim notwithstanding any other provision of an 
     agreement, State law, or Federal law.
       (7) Mediation.--The term ``mediation'' means a settlement 
     process coordinated by a neutral third party and without the 
     ultimate rendering of a formal opinion as to factual or legal 
     findings.
       (8) Medical malpractice action.--The term ``medical 
     malpractice action'' means an action in any State or Federal 
     court against a physician, or other health professional, who 
     is licensed in accordance with the requirements of the State 
     involved that--
       (A) arises under the law of the State involved;
       (B) alleges the failure of such physician or other health 
     professional to adhere to the relevant professional standard 
     of care for the service and specialty involved;
       (C) alleges death or injury proximately caused by such 
     failure; and
       (D) seeks monetary damages, whether compensatory or 
     punitive, as relief for such death or injury.
       (9) Medical malpractice claim.--The term ``medical 
     malpractice claim'' means a claim forming the basis of a 
     medical malpractice action.
       (10) State.--The term ``State'' means each of the several 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico,

[[Page H1868]]

     American Samoa, Guam, the Commonwealth of the Northern 
     Mariana Islands, the Virgin Islands, and any other territory 
     or possession of the United States.

     SEC. 108. APPLICABILITY.

       (a) In General.--Except as provided in section 104, this 
     title shall apply with respect to any medical malpractice 
     action brought on or after the date of the enactment of this 
     Act.
       (b) Federal Court Jurisdiction Not Established on Federal 
     Question Grounds.--Nothing in this title shall be construed 
     to establish any jurisdiction in the district courts of the 
     United States over medical malpractice actions on the basis 
     of section 1331 or 1337 of title 28, United States Code.

   TITLE II--INDEPENDENT ADVISORY COMMISSION ON MEDICAL MALPRACTICE 
                               INSURANCE

     SEC. 201. ESTABLISHMENT.

       (a) Findings.--The Congress finds as follows:
       (1) The sudden rise in medical malpractice premiums in 
     regions of the United States can threaten patient access to 
     doctors and other health providers.
       (2) Improving patient access to doctors and other health 
     providers is a national priority.
       (b) Establishment.--There is established a national 
     commission to be known as the ``Independent Advisory 
     Commission on Medical Malpractice Insurance'' (in this title 
     referred to as the ``Commission'').

     SEC. 202. DUTIES.

       (a) In General.--(1) The Commission shall evaluate the 
     effectiveness of health care liability reforms in achieving 
     the purposes specified in paragraph (2) in comparison to the 
     effectiveness of other legislative proposals to achieve the 
     same purposes.
       (2) The purposes referred to in paragraph (1) are to--
       (A) improve the availability of health care services;
       (B) reduce the incidence of ``defensive medicine'';
       (C) lower the cost of health care liability insurance;
       (D) ensure that persons with meritorious health care injury 
     claims receive fair and adequate compensation; and
       (E) provide an increased sharing of information in the 
     health care system which will reduce unintended injury and 
     improve patient care.
       (b) Considerations.--In formulating proposals on the 
     effectiveness of health care liability reform in comparison 
     to these alternatives, the Commission shall, at a minimum, 
     consider the following:
       (1) Alternatives to the current medical malpractice tort 
     system that would ensure adequate compensation for patients, 
     preserve access to providers, and improve health care safety 
     and quality.
       (2) Modifications of, and alternatives to, the existing 
     State and Federal regulations and oversight that affect, or 
     could affect, medical malpractice lines of insurance.
       (3) State and Federal reforms that would distribute the 
     risk of medical malpractice more equitably among health care 
     providers.
       (4) State and Federal reforms that would more evenly 
     distribute the risk of medical malpractice across various 
     categories of providers.
       (5) The effect of a Federal medical malpractice reinsurance 
     program administered by the Department of Health and Human 
     Services.
       (6) The effect of a Federal medical malpractice insurance 
     program, administered by the Department of Health and Human 
     Services, to provide medical malpractice insurance based on 
     customary coverage terms and liability amounts in States 
     where such insurance is unavailable or is unavailable at 
     reasonable and customary terms.
       (7) Programs that would reduce medical errors and increase 
     patient safety, including new innovations in technology and 
     management.
       (8) The effect of State policies under which--
       (A) any health care professional licensed by the State has 
     standing in any State administrative proceeding to challenge 
     a proposed rate increase in medical malpractice insurance; 
     and
       (B) a provider of medical malpractice insurance in the 
     State may not implement a rate increase in such insurance 
     unless the provider, at minimum, first submits to the 
     appropriate State agency a description of the rate increase 
     and a substantial justification for the rate increase.
       (9) The effect of reforming antitrust law to prohibit 
     anticompetitive activities by medical malpractice insurers.
       (10) Programs to facilitate price comparison of medical 
     malpractice insurance by enabling any health care provider to 
     obtain a quote from each medical malpractice insurer to write 
     the type of coverage sought by the provider.
       (11) The effect of providing Federal grants for geographic 
     areas that have a shortage of one or more types of health 
     providers as a result of the providers making the decision to 
     cease or curtail providing health services in the geographic 
     areas because of the costs of maintaining malpractice 
     insurance.

     SEC. 203. REPORT.

       (a) In General.--The Commission shall transmit to 
     Congress--
       (1) an initial report not later than 180 days after the 
     date of the initial meeting of the Commission; and
       (2) a report not less than each year thereafter until the 
     Commission terminates.
       (b) Contents.--Each report transmitted under this section 
     shall contain a detailed statement of the findings and 
     conclusions of the Commission.
       (c) Voting and Reporting Requirements.--With respect to 
     each proposal or recommendation contained in the report 
     submitted under subsection (a), each member of the Commission 
     shall vote on the proposal or recommendation, and the 
     Commission shall include, by member, the results of that vote 
     in the report.

     SEC. 204. MEMBERSHIP.

       (a) Number and appointment.--The Commission shall be 
     composed of 15 members appointed by the Comptroller General 
     of the United States.
       (b) Membership.--
       (1) In general.--The membership of the Commission shall 
     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.
       (2) Inclusion.--The membership of the Commission shall 
     include the following:
       (A) Two individuals with expertise in health finance and 
     economics, including one with expertise in consumer 
     protections in the area of health finance and economics.
       (B) Two individuals with expertise in medical malpractice 
     insurance, representing both commercial insurance carriers 
     and physician-sponsored insurance carriers.
       (C) An individual with expertise in State insurance 
     regulation and State insurance markets.
       (D) An individual representing physicians.
       (E) An individual with expertise in issues affecting 
     hospitals, nursing homes, nurses, and other providers.
       (F) Two individuals representing patient interests.
       (G) Two individuals with expertise in health care law or 
     health care policy.
       (H) An individual with expertise in representing patients 
     in malpractice lawsuits.
       (3) Majority.--The total number of individuals who are 
     directly involved with the provision or management of 
     malpractice insurance, representing physicians or other 
     providers, or representing physicians or other providers in 
     malpractice lawsuits, shall not constitute a majority of the 
     membership of the Commission.
       (4) Ethical disclosure.--The Comptroller General of the 
     United States shall establish a system for public disclosure 
     by members of the Commission of financial or other potential 
     conflicts of interest relating to such members.
       (c) Terms.--
       (1) In general.--The terms of the members of the Commission 
     shall be for 3 years except that the Comptroller General of 
     the United States shall designate staggered terms for the 
     members first appointed.
       (2) Vacancies.--Any member appointed to fill a vacancy 
     occurring before the expiration of the term for which the 
     member's predecessor was appointed shall be appointed only 
     for the remainder of that term. A member may serve after the 
     expiration of that member's term until a successor has taken 
     office. A vacancy in the Commission shall be filled in the 
     manner in which the original appointment was made.
       (3) Compensation.--Members of the Commission shall be 
     compensated in accordance with section 1805(c)(4) of the 
     Social Security Act.
       (4) Chairman; vice chairman.--The Comptroller General of 
     the United States shall designate at the time of appointment 
     a member of the Commission as Chairman and a member as Vice 
     Chairman. In the case of vacancy of the Chairmanship or Vice 
     Chairmanship, the Comptroller General may designate another 
     member for the remainder of that member's term.
       (5) Meetings.--
       (A) In general.--The Commission shall meet at the call of 
     the Chairman.
       (B) Initial meeting.--The Commission shall hold an initial 
     meeting not later than the date that is 1 year after the date 
     of the enactment of this title, or the date that is 3 months 
     after the appointment of all the members of the Commission, 
     whichever occurs earlier.

     SEC. 205. DIRECTOR AND STAFF; EXPERTS AND CONSULTANTS.

       Subject to such review as the Comptroller General of the 
     United States deems necessary to assure the efficient 
     administration of the Commission, the Commission may--
       (1) employ and fix the compensation of an Executive 
     Director (subject to the approval of the Comptroller General) 
     and such other personnel as may be necessary to carry out its 
     duties;
       (2) seek such assistance and support as may be required in 
     the performance of its duties from appropriate Federal 
     departments and agencies;
       (3) enter into contracts or make other arrangements, as may 
     be necessary for the conduct of the work of the Commission;
       (4) make advance, progress, and other payments which relate 
     to the work of the Commission;
       (5) provide transportation and subsistence for persons 
     serving without compensation; and

[[Page H1869]]

       (6) prescribe such rules and regulations as it deems 
     necessary with respect to the internal organization and 
     operation of the Commission.

     SEC. 206. POWERS.

       (a) Obtaining Official Data.--The Commission may secure 
     directly from any department or agency of the United States 
     information necessary to enable it to carry out this section. 
     Upon request of the Chairman, the head of that department or 
     agency shall furnish that information to the Commission on an 
     agreed upon schedule.
       (b) Data Collection.--In order to carry out its functions, 
     the Commission shall--
       (1) utilize existing information, both published and 
     unpublished, where possible, collected and assessed either by 
     its own staff or under other arrangements made in accordance 
     with this section;
       (2) carry out, or award grants or contracts for, original 
     research and experimentation, where existing information is 
     inadequate; and
       (3) adopt procedures allowing any interested party to 
     submit information for the Commission's use in making reports 
     and recommendations.
       (c) Access of General Accounting Office to Information.--
     The Comptroller General of the United States shall have 
     unrestricted access to all deliberations, records, and 
     nonproprietary data of the Commission, immediately upon 
     request.
       (d) Periodic Audit.--The Commission shall be subject to 
     periodic audit by the Comptroller General of the United 
     States.

     SEC. 207. AUTHORIZATION OF APPROPRIATIONS.

       (a) In General.--There are authorized to be appropriated 
     such sums as may be necessary to carry out this title for 
     each of fiscal years 2004 through 2008.
       (b) Requests for Appropriations.--The Commission shall 
     submit requests for appropriations in the same manner as the 
     Comptroller General of the United States submits requests for 
     appropriations, but amounts appropriated for the Commission 
     shall be separate from amounts appropriated for the 
     Comptroller General.
       Amend the title so as to read: ``A bill to limit frivolous 
     medical malpractice lawsuits, to reform the medical 
     malpractice insurance business in order to reduce the cost of 
     medical malpractice insurance, to enhance patient access to 
     medical care, and for other purposes.''.

  Mr. CONYERS (during the reading). Mr. Speaker, I ask unanimous 
consent that the motion to recommit be considered as read and printed 
in the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Michigan (Mr. Conyers) is recognized for 5 minutes in support of his 
motion.
  Mr. CONYERS. Mr. Speaker, this is the Conyers-Dingell motion to 
recommit. It started out originally as the Conyers-Dingell substitute 
motion which, in the wisdom of the Committee on Rules and the chair of 
the Committee on Energy and Commerce, was determined not to be 
necessary. We did not need to waste this much time worrying or going 
over the same matter twice. So let us just have a 5-minute discussion 
on each side about a multibillion-dollar measure that affects every 
man, woman, and child in the United States of America. So I will take a 
couple of minutes and ask the dean of the House to spend the rest of 
the time making sure that we all understand what it does.
  First of all, we do something about the problem that has been 
complained of grievously by every Member that has taken to the floor 
today. We do something about it. That is, we limit frivolous lawsuits 
by requiring that there is mandatory mediation for every malpractice 
lawsuit filed in the United States of America and that we require that 
attorneys' certificates of merit and mandatory sanctions occur. We 
require that affidavits of merit be provided from qualified medical 
specialists. We attempt to, in short, weed out frivolous lawsuits that 
will not restrict the rights of those with legitimate claims. Of 
course, finally, it is very important to realize that we reexamine the 
antitrust exemption that has been enjoyed by the insurance industry all 
of these years.
  Mr. Speaker, I am delighted now to yield the balance of the time to 
the dean of the House, the gentleman from Michigan (Mr. Dingell).
  (Mr. DINGELL asked and was given permission to revise and extend his 
remarks.)
  Mr. DINGELL. Mr. Speaker, the bill before us is a bad bill. The 
motion to recommit is forced upon us by the recalcitrance of the 
Republican leadership which has not permitted us to offer a substitute. 
This is the package that we could go home and talk with pride of to our 
people and to our doctors. It weeds out frivolous lawsuits. It does not 
restrict the rights of legitimate claimants. It establishes an 
equitable, 3-year statute of limitation that protects children, the 
aged, the poor.
  It requires affidavits of merit from qualified medical specialists 
and attorneys' certificates of merit with mandatory sanctions. It 
requires mandatory mediation. It also allows health care providers to 
challenge malpractice premium increases. It provides direct assistance 
to physicians in crisis areas through Federal grants, and it provides 
direct assistance to medical centers in danger of closing. It repeals 
the antitrust exemption for malpractice insurance, and it establishes 
Federal malpractice insurance and a reinsurance program. This is a 
program that will work.
  Under a House in which we had a decent opportunity to debate and 
amend, Members of this body would understand that this is the package 
for which they want to vote. They would understand that this is a 
package which their people wish them to vote for, and I include in that 
the health care providers. It is a bill, or rather an amendment, which 
would assure that health care providers would receive the help that 
they need while, at the same time, not providing unnecessary shelters 
for HMOs and other undeserving persons who have contrived to leap 
aboard a vehicle which they think is going out and a situation which 
permits the doctors to be used as front-men for a bunch of iniquitous 
rascals who do not deserve relief.
  Mr. CONYERS. Mr. Speaker, we yield back any time that may be 
remaining.
  The SPEAKER pro tempore. Does the gentleman from Louisiana (Mr. 
Tauzin) seek time in opposition to the motion?
  Mr. TAUZIN. I do, Mr. Speaker.
  I first yield to the gentleman from Nevada (Mr. Gibbons) for a 
colloquy.
  Mr. GIBBONS. Mr. Speaker, I would like to ask the gentleman from 
Louisiana (Mr. Tauzin) a question which concerns the relationship of 
Nevada law and H.R. 5.
  In my State of Nevada, we have recently passed a law that sets forth 
a $350,000 cap for noneconomic damages, but it has some exceptions. I 
would like to know how this legislation applies in this circumstance.
  Mr. TAUZIN. Mr. Speaker, I thank the gentleman. Subparagraph 11(c)(1) 
says: ``Any State law, whether effective before, on, or after the dates 
of the enactment of this Act that specifies a particular monetary 
amount of compensatory or punitive damages, or the total amount of 
damages, that may be awarded in a health care lawsuit, regardless of 
whether such monetary amount is greater or lesser than is provided 
under this Act.''
  Nevada's $350,000 cap generally fits the terms of this subparagraph 
and would generally apply. The handling of the exceptions is not 
specifically stated in the legislation. I would be prepared to work 
with the gentleman to discuss these exceptions as we move further in 
the process of this legislation.
  Mr. GIBBONS. Mr. Speaker, I thank the gentleman for his response, and 
I look forward to working with him on this matter.
  Mr. TAUZIN. Mr. Speaker, the Dingell motion offers us a different 
solution than H.R. 5. Interestingly enough, not a single one of the 175 
health care organizations and associations, doctors across America, 
endorses that solution.

                              {time}  1445

  But they have all endorsed H.R. 5. And let me explain to you why the 
doctors and the health care organizations have not endorsed the Dingell 
solution and have endorsed H.R. 5. By the way, the Committee on Energy 
and Commerce took a vote on the general substance of this motion to 
recommit and voted 30 to 20 against it and it was not a party line 
vote. Let me tell you why it was defeated, why so many organizations 
opposed it. Because what it generally offers is not insurance reform 
but a Federal commission, another bureaucracy to study the problem and 
to make recommendations one day to us.
  We have studied this problem ad infinitum. We have held numerous 
hearings. The States have experienced this problem going back 25 years 
and they

[[Page H1870]]

have offered us a solution. We are following their lead after 25 years 
of experience. Do we really need another Federal commission? No 
insurance reform, just a commission? And then to solve the problem of 
high malpractice liability coverage, this is the Dingell motion to 
recommit solution, not a single limitation at all on recoveries, 
unlimited recoveries as in current law, not a single cap on any kind of 
damages. Instead we get an attorney's certificate of merit. An 
attorney's certificate of merit. We get the trial lawyer to say, I 
think I have got a good lawsuit, and that is the solution.
  Mr. Speaker, when an attorney signs a petition, when he signs the 
most egregiously incorrect, horribly drafted, when he signs the most 
inappropriate false petition, when he signs his name on it he is 
attesting to the validity of that petition. It may be a bad petition. 
It may be the most horrible lawsuit ever filed. It may get dismissed on 
the first motion to have it dismissed, but when he signed his name on 
it, he said it was a good petition.
  So what does the Democratic motion to recommit tell us? We are going 
to solve this problem in America by having the same attorney sign a 
certificate that he has got a good suit, that he has got a good 
petition. Wow, that will really solve the problem.
  I think you see why now that solution has been rejected by 175 
organizations representing the doctors, the nurses, all the 
organizations across America who are crying to us for relief, who are 
telling us we are tired of petitions signed by lawyers that have no 
merit, that drive up medical malpractice suits, that drive us out of 
business and deprive the citizens of our country needed medical care 
when their loved ones need it the most. They are crying to us for help 
and the victims that came to us in our committee room and said, for 
God's sake, it is horrible when somebody commits a medical error, but 
it is also terrible when the doctor is not there when my child is sick, 
when my husband has been horribly mutilated in an automobile accident, 
when my daughter is trying to deliver her first child and there is no 
doctor there willing to do it because the cost of liability insurance 
is too high. They are crying to us to do something today. The motion to 
recommit tells us, well, let us just trust the lawyers and create a 
Federal commission. Whoopie-ding.
  What do we tell those victims when we said all we did was trust the 
lawyers and created another Federal commission? I did not come here to 
create new Federal commissions to tell us what the problems were and 
what the solutions were. I came here like the rest of you, to figure 
out what the problems were and to solve them. H.R. 5 solves this 
program and deserves to be passed. This motion to recommit needs to go 
down.
  The SPEAKER pro tempore (Mr. Simpson). Without objection, the 
previous question is ordered on the motion to recommit.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to recommit.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. CONYERS. 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 any electronic vote on the question of passage.
  The vote was taken by electronic device, and there were--yeas 191, 
nays 234, not voting 9, as follows:

                             [Roll No. 63]

                               YEAS--191

     Abercrombie
     Ackerman
     Alexander
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Ballance
     Becerra
     Bell
     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
     Conyers
     Cooper
     Costello
     Cramer
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (IL)
     Davis (TN)
     DeFazio
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Doggett
     Dooley (CA)
     Duncan
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Ford
     Frank (MA)
     Frost
     Gephardt
     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
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind
     Kleczka
     Kucinich
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lowey
     Lynch
     Majette
     Maloney
     Markey
     Marshall
     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)
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Peterson (MN)
     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 (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Solis
     Spratt
     Stark
     Strickland
     Stupak
     Tanner
     Tauscher
     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

                               NAYS--234

     Aderholt
     Akin
     Bachus
     Baker
     Ballenger
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Bereuter
     Berkley
     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 (FL)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     DeMint
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Dreier
     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
     Janklow
     Jenkins
     John
     Johnson (CT)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     LaHood
     Larson (CT)
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lofgren
     Lucas (KY)
     Lucas (OK)
     Manzullo
     Matheson
     McCotter
     McCrery
     McHugh
     McInnis
     McKeon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Murtha
     Musgrave
     Myrick
     Nethercutt
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Ose
     Otter
     Oxley
     Paul
     Pearce
     Pence
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Pomeroy
     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
     Scott (GA)
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Shuster
     Simmons
     Simpson
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Stenholm
     Sullivan
     Sweeney
     Tancredo
     Tauzin
     Taylor (MS)
     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)

                             NOT VOTING--9

     Clyburn
     Combest
     DeGette
     Doyle
     Gilchrest
     Hyde
     Istook
     Johnson (IL)
     Snyder


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mr. Rehberg) (during the vote). There are 2 
minutes left in this vote.

                              {time}  1508

  Messrs. McHUGH, QUINN, BURGESS, HOUGHTON, TANCREDO, BRADY of Texas 
and SAXTON changed their vote from ``yea'' to ``nay.''

[[Page H1871]]

  So the motion to recommit was rejected.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.
  The SPEAKER pro tempore (Mr. Simpson). The question is on the passage 
of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. This will be a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 229, 
noes 196, answered ``present'' 1, not voting 8, as follows:

                             [Roll No. 64]

                               AYES--229

     Aderholt
     Akin
     Baker
     Ballenger
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Bass
     Beauprez
     Bereuter
     Biggert
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Bono
     Boozman
     Boyd
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burns
     Burr
     Burton (IN)
     Buyer
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Cardoza
     Carter
     Castle
     Chabot
     Chocola
     Cole
     Collins
     Cox
     Cramer
     Crane
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis (TN)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     DeMint
     Diaz-Balart, M.
     Dooley (CA)
     Dreier
     Duncan
     Dunn
     Ehlers
     Emerson
     English
     Everett
     Feeney
     Ferguson
     Fletcher
     Foley
     Forbes
     Fossella
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gerlach
     Gibbons
     Gillmor
     Gingrey
     Goode
     Goodlatte
     Gordon
     Goss
     Granger
     Graves
     Green (WI)
     Greenwood
     Gutknecht
     Hall
     Harris
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Hobson
     Hoekstra
     Holden
     Hostettler
     Houghton
     Hulshof
     Hunter
     Isakson
     Issa
     Janklow
     Johnson (CT)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     Kingston
     Kirk
     Kline
     Knollenberg
     Kolbe
     LaHood
     Latham
     LaTourette
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Manzullo
     Matheson
     McCotter
     McCrery
     McHugh
     McInnis
     McKeon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Murtha
     Musgrave
     Myrick
     Nethercutt
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Ose
     Otter
     Oxley
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Pomeroy
     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
     Scott (GA)
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherwood
     Shimkus
     Simmons
     Simpson
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Stenholm
     Sullivan
     Sweeney
     Tancredo
     Tauzin
     Taylor (MS)
     Taylor (NC)
     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--196

     Abercrombie
     Ackerman
     Alexander
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Ballance
     Becerra
     Bell
     Berkley
     Berman
     Berry
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Boswell
     Boucher
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Capps
     Capuano
     Cardin
     Carson (IN)
     Carson (OK)
     Case
     Clay
     Clyburn
     Coble
     Conyers
     Cooper
     Costello
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     DeFazio
     Delahunt
     DeLauro
     Deutsch
     Diaz-Balart, L.
     Dicks
     Dingell
     Doggett
     Doolittle
     Edwards
     Emanuel
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Flake
     Ford
     Frank (MA)
     Frost
     Gephardt
     Gonzalez
     Green (TX)
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Hill
     Hinchey
     Hinojosa
     Hoeffel
     Holt
     Honda
     Hooley (OR)
     Hoyer
     Inslee
     Israel
     Istook
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Jenkins
     John
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind
     King (NY)
     Kleczka
     Kucinich
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lofgren
     Lowey
     Lynch
     Majette
     Maloney
     Markey
     Marshall
     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)
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Paul
     Payne
     Pelosi
     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 (VA)
     Serrano
     Sherman
     Skelton
     Slaughter
     Smith (WA)
     Solis
     Spratt
     Stark
     Strickland
     Stupak
     Tanner
     Tauscher
     Terry
     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

                        ANSWERED ``PRESENT''--1

       
     Bachus
       

                             NOT VOTING--8

     Combest
     DeGette
     Doyle
     Gilchrest
     Hyde
     Johnson (IL)
     Shuster
     Snyder


                Announcement by the Speaker Pro Tempore

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

                              {time}  1516

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

                          ____________________