[Congressional Record Volume 149, Number 98 (Monday, July 7, 2003)]
[Senate]
[Pages S8870-S8871]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        MEDICAL LIABILITY REFORM

  Mr. LOTT. Mr. President, I thank the distinguished leader for the 
information he has just given us about the schedule for the month of 
July. Obviously, we do have a lot of important work to do. Having dealt 
with the difficulties of having to put in full days, including votes on 
Mondays and Fridays, I know it is not always well received. It has to 
be done in order to achieve these very important pieces of legislation 
that need to be acted on in July.
  I especially thank the leader for going forward with the legislation 
on medical liability reform, the Patients First Act. In my own State of 
Mississippi, we have a health care catastrophe on our hands. Doctors 
are losing their coverage. They are leaving the State. And they are 
getting out of specialty services such as in the case of an OB/GYN. 
They are getting out of obstetrics. It is causing a huge problem along 
the Mississippi gulf coast where we have over 500,000 people. We are 
down to three neurosurgeons. We did have seven. We have two fully 
staffed trauma facilities in that area, only two. And with only three 
doctors now, on weekends we are really stretched very thin. If we lose 
one more neurosurgeon, we will not be able to keep those two trauma 
facilities operative.
  We also have a problem in getting an adequate number of orthopedic 
surgeons. As Dr. Frist knows, you have to have an orthopedic surgeon 
available also for trauma services. We recently attracted a doctor from 
St. Louis, MO who wanted to raise his family in a smaller community. He 
is an outstanding doctor. He was paying $70,000 a year for his medical 
liability insurance when he left St. Louis. He came to our State. 
Within 6 months his coverage went up to $150,000 a year. This is an 
African American doctor, highly qualified, desperately needed there in 
the Pascagoula-Moss Pt., MS area. I am afraid he is not going to be 
able to stay with that kind of problem.
  This is a huge problem. Some of my friends I went to law school with 
are saying: Let the States handle this problem. Some States have done a 
pretty good job. California has done an exemplary job. I believe this 
legislation is pretty closely patterned after the California example.
  Some States have done some good work but other States have done 
nothing or very little. My own State, while the legislature wrestled 
with it, made some progress but it has not been nearly enough. My 
friends in the bar say this is a States rights issue, more or less. But 
in this case there is no question that this is driving up health care 
costs across the board. Doctors will tell you that they are ordering 
additional procedures--defensive medicine, if you will--and it is 
clearly affecting how much Medicare is costing.
  I have heard astronomical numbers, and I will verify them before I 
speak on this issue tomorrow or the next day as to exactly how much the 
impact of this excessive lawsuit activity against doctors and the 
medical professions and the hospitals is driving up the cost of 
Medicare. There is no question--you might say the States have a right 
to do this and can handle it, or tort reform, or product liability 
even; but in this case there is no question that it has a Federal 
ramification that is costing us lots of money.
  We are trying to do the right thing for Medicare beneficiaries. We 
are trying to put prescription drugs in there but we need reform and we 
have to find some ways to reduce the costs that are being paid out by 
Medicare. This is one way to do it.
  I am excited that we are going forward with this bill. I don't know 
if we can get enough votes to stop a filibuster but that is not the 
important thing. The important thing is that we have a crisis 
developing in America in health care delivery and the medical liability 
area, and so I think we should take it up and let's have the vote--and 
we may have to have more than one vote.


                          Judicial Nominations

  The other thing I want to do is pick up on what the leader said about 
judicial nominations. I continue to be concerned that we are in the 
process of setting a precedent, where judges can be defeated by 
filibuster. That has not been the rule. That has not been done--there 
is maybe one instance that you can point to in 200 years. In that case, 
I think it is a very fragile argument because the nominee, Abe Fortas, 
was debated for only 10 days, and there were ethical problems that 
developed and his name was withdrawn. We didn't do it during the 
Clinton years.
  A lot of delays are involved when you are talking about how Senators 
react, and sending a blue slip to indicate their preference on judicial 
nominations, and there were concerns and a lot of problems. But not one 
time did we defeat a judge by filibuster. I had to file cloture, I 
think, six or seven times but in each case we either vitiated it or had 
a vote on cloture and then went straight to the vote. We completed 
action on those judges.
  I don't think we should have a litmus test that involves one issue, 
or a few issues, because I make the case repeatedly that I voted for 
Justice Ruth Bader Ginsburg, even though I knew that philosophically I 
would not agree with her. On a lot of issues I strongly disagreed with 
her. But she was qualified by education, experience, temperament, and 
ethics. She had a right, I believe, to have an up-or-down vote. She got 
one and she was confirmed, and I voted for her.
  On two of the other nominees, I believe for the Ninth Circuit, Berzon 
and Paez, I felt very strongly that they should not be on that circuit 
court bench. But, again, they came through the committee, we debated 
them on the floor, there was an attempted filibuster, which I opposed, 
and we voted on them. I voted against them but they got a vote. They 
were confirmed and they now serve on the judiciary.

  I think the leader has tried very diligently to find a way to get 
away from these filibusters, even though we still have two. I think we 
have had five or six votes on cloture on Miguel Estrada, and I think we 
have had two on Priscilla Owen. But I hear there may be filibusters on 
other qualified men and women, as well as the minorities that are going 
to be affected by this--especially in the case of Miguel Estrada.
  So we have to find a way to get away from this. There is even talk 
now that maybe we should have recess appointments. I don't think that 
is a good precedent either. I spoke against it on the floor when 
President Clinton did it, so how can I now say it is OK? But if we 
continue down this trail of filibustering judges, there will be a 
reaction. There will have to be additional action.
  The leader has introduced a bill that has been reported out of the 
Rules Committee that would be very careful. After 12 days, you could 
file cloture, and then it would be 60 votes required; the second 
cloture, 57; the third cloture, 54; and finally, only 51 after 
basically what would take a full month. I think that is a very long, 
protracted, and unnecessary process but it, again, shows good faith on 
the part of the leader to find a way to get ourselves out of this 
precedent.
  I think we will all rue the day if we do this. Yes, we have all 
ramped up the difficulty in confirming judges on both sides with a 
number of men and women, perhaps unfairly. But we are taking a huge 
leap and really undermining the process for confirming Federal judges 
if we allow filibusters to stand. We must find a way in the next couple 
of months to work through this. I call on my colleagues on both sides 
of the aisle, let's let cooler heads prevail and pull back from this 
precipice that we are standing on and find a way to give these judges 
an up-or-down vote. I believe we will be better as an institution and 
the judiciary will be better if we avoid this problem.
  I have been thinking about these issues over the past week when I 
have been at home. I particularly was confronted everywhere I went with 
the problem of doctors in my State of Mississippi, and to be able to 
keep the doctors in practice, keep them from retiring and leaving the 
States, we must act in this area.

[[Page S8871]]

  With that, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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