[Congressional Record Volume 149, Number 98 (Monday, July 7, 2003)]
[Senate]
[Pages S8893-S8894]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        PATIENTS FIRST ACT OF 2003--MOTION TO PROCEED--Continued

  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, at the outset, I thank my colleagues and 
the clerical staff awaiting my arrival from the customary Monday travel 
day from Philadelphia to Scranton to Harrisburg to Washington. For 
those who may be about to venture onto the Baltimore Washington 
Parkway, the traffic is very heavy indeed. Although when I arrived in 
the Senate Chamber and I saw active debate, I am not quite sure my late 
arrival has caused too much inconvenience.
  I support legislation which would address the serious problems faced 
today by doctors, hospitals and other medical professionals and at the 
same time provide balance to treat fairly people who are injured in the 
course of medical treatment.
  While most of the attention has been directed to medical malpractice 
verdicts, the issues are much broader, involving medical errors, 
insurance company investments and administrative practices.
  I support caps on noneconomic damages so long as they do not apply to 
situations like the paperwork mix-up leading to the erroneous double 
mastectomy of a woman or the recent death of a 17-year-old woman on a 
North Carolina transplant case where there was a faulty blood test.
  An appropriate standard for cases not covered could be analogous 
provisions in Pennsylvania law which limit actions against governmental 
entities or in the limited tort context which exclude death, serious 
impairment of bodily function, and permanent disfigurement or 
dismemberment.
  Beyond the issue of caps, I believe there could be savings on the 
cost of medical malpractice insurance by eliminating frivolous cases by 
requiring plaintiffs to file with the court a certification by a doctor 
in the field that it is an appropriate case to bring to court. This 
proposal, which is now part of Pennsylvania State procedure, would be 
expanded federally, thus reducing claims and saving costs. While most 
malpractice cases are won by defendants, the high cost of litigation 
drives up malpractice premiums. The proposed certification would reduce 
plaintiff's joinder of peripheral defendants and cut defense costs.
  Further savings could be accomplished through patient safety 
initiatives identified in the report of the Institute of Medicine.
  On November 29, 1999, the Institute of Medicine--IOM--issued a report 
entitled: To Err is Human: Building a Safer Health System. The IOM 
Report estimated that anywhere between 44,000 and 98,000 hospitalized 
Americans die each year due to avoidable medical mistakes. However, 
only a fraction of these deaths and injuries are due to negligence; 
most errors are caused by system failures. The IOM issued a 
comprehensive set of recommendations, including the establishment of a 
nationwide, mandatory reporting system; incorporation of patient safety 
standards in regulatory and accreditation programs; and the development 
of a non-punitive culture of safety in health care organizations. The 
report called for a 50 percent reduction in medical errors over 5 
years.
  The Appropriations Subcommittee on Labor, Health and Human Services 
and Education, which I chair, held three

[[Page S8894]]

hearings to discuss the IOM's findings and explore ways to implement 
the recommendations outlined in the IOM report. The FY 2001 Labor-HHS 
appropriations bill contained $50 million for a patient safety 
initiative and directed the Agency for Healthcare Research and 
Quality--AHRQ--to develop guidelines on the collection of uniform error 
data; establish a competitive demonstration program to test best 
practices; and research ways to improve provider training. In Fiscal 
Year 2002 and Fiscal Year 2003, $55 million was included to continue 
these initiatives. We are awaiting a report, scheduled to be issued in 
September by the Department of Health and Human Services, which will 
detail the results of the patient safety initiative.
  There is evidence that increases in insurance premiums have been 
caused, at least in part, by insurance company losses, the declining 
stock market of the past several years, and the general rate-setting 
practices of the industry. As a matter of insurance company 
calculations, premiums are collected and invested to build up an 
insurance reserve where there is considerable lag time between the 
payment of the premium and litigation which results in a verdict or 
settlement. When the stock market has gone down, for example, that has 
resulted in insufficient funding to pay claims and the attendant 
increase in insurance premiums. A similar result occurred in Texas on 
homeowners' insurance where cost and availability of insurance became 
an issue because companies lost money in the market and could not cover 
the insured losses on hurricanes.

  In structuring legislation to put caps on jury verdicts, due regard 
should be given to the history and development of trial by jury under 
the common law where reliance is placed on average men and women who 
comprise a jury to reach a just result reflecting the values and views 
of the community.
  Jury trials in modern tort cases descend from the common law jury in 
trespass, which was drawn from and intended to be representative of the 
average members of the community in which the alleged trespass 
occurred. This coincides with the incorporation of negligence standards 
of liability into trespass actions.
  This ``representative'' jury right in civil actions was protected by 
consensus among the state drafters of the U.S. Constitution's Bill of 
Rights. The explicit trial by jury safeguards in the Seventh Amendment 
to the Constitution were adaptations of these common law concepts 
harmonized with the Sixth Amendment's clause that local juries be used 
in criminal trials. Thus, from its inception at common law through its 
inclusion in the Bill of Rights and today, the jury in tort/negligence 
cases is meant to be representative of the judgment of average members 
of the community--not of elected representatives.
  The right to have a jury decide one's damages has been greatly 
circumscribed in recent decisions of the United States Supreme Court. 
An example is the analysis that the Court has recently applied to limit 
punitive damage awards.
  In recent cases, the Court has shifted its Seventh Amendment focus 
away from 2 centuries of precedent in deciding that federal appellate 
review of punitive damage awards will be decided on a de novo basis and 
that a jury's determination of punitive damages is not a finding of 
fact for purposes of the re-examination clause of the Seventh Amendment 
which provides that ``no fact tried by a jury shall be otherwise re-
examined in any Court of the United States, than according to the rules 
of the common law''. Then, earlier this year, the Court reasoned that 
any ratio of punitive damages to compensatory damages greater than 9/1 
will likely be considered unreasonable and disproportionate, and thus 
constitute an unconstitutional deprivation of property in non-personal 
injury cases. Plaintiffs will inevitably face a vastly increased burden 
to justify a greater ratio, and appellate courts have far greater 
latitude to disallow or reduce such an award.
  These decisions may have already, in effect, placed caps on some jury 
verdicts in medical malpractice cases which may involve punitive 
damages.
  Consideration of the many complex issues on the Senate floor on the 
pending legislation will obviously be very difficult in the absence of 
a markup in committee or the submission of a committee report and a 
committee bill.
  The pending bill is the starting point for analysis, discussion, 
debate, and possible amendment. I am prepared to proceed with the 
caveat that there is much work to be done before the Senate would be 
ready, in my opinion, for consideration of final passage.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The majority leader.


                             Cloture Motion

  Mr. FRIST. Mr. President, I now send a cloture motion to the desk on 
the pending motion.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to the consideration of Calendar No. 186, S. 11, the 
     Patients First Act of 2003.
         Bill Frist, Mitch McConnell, John Ensign, Craig Thomas, 
           Rick Santorum, Larry E. Craig, George V. Voinovich, 
           John Cornyn, Trent Lott, Ted Stevens, Michael B. Enzi, 
           James M. Inhofe, Chuck Hagel, Jon Kyl, Judd Gregg, Pat 
           Roberts, John E. Sununu.

  Mr. FRIST. Mr. President, I ask unanimous consent that the live 
quorum, as provided for under rule XXII, be waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, this cloture vote will occur Wednesday 
morning. I will announce, during tomorrow's session, the precise timing 
of this vote for Wednesday.

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