Congressional Record, Volume 149 Issue 99 (Tuesday, July 8, 2003)

[Congressional Record Volume 149, Number 99 (Tuesday, July 8, 2003)]
[Senate]
[Pages S9001-S9009]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PATIENTS FIRST ACT

Mr. DURBIN. Mr. President, I would like to speak in morning business
on the issue that is pending before the Senate, which is the motion to
proceed on S. 11. This is a bill relative to an important issue that
really we have to grapple with in this country, and that

[[Page S9002]]

is the question of medical malpractice. It is an issue which has come
at us in so many different ways. Unfortunately, the bill that is before
us, S. 11, which we are now considering under a motion to proceed,
looks at the issue of medical malpractice from only one narrow
perspective, and from my point of view a very ineffective perspective.
What the bill before us would suggest is if you or a member of your
family or one of your children is a victim of medical malpractice,
there would be a strict limitation in this bill of how much you could
recover in court for what is known as noneconomic losses, pain and
suffering. That strict limitation would be $250,000.
To many people, $250,000 seems to be a very substantial sum of money,
and it is until it is put in the perspective of the injuries we are
discussing. Yesterday, in the course of the debate, I told the story of
a 6-year-old boy in my home State of Illinois who went to a downstate
clinic with a high fever. Unfortunately, he did not receive appropriate
medical care and a jury decided he had been a victim of medical
negligence. The doctors who had treated him did not perform the type of
medical procedures necessary to monitor his serious condition. As a
result of that, this poor little boy at the age of 6 became
quadriplegic and uncommunicative. It is now 11 years later. He is 17
years old. He needs care around the clock. He cannot respond to
stimulus that ordinary people do. He certainly cannot communicate. His
situation for the past 11 years is, frankly, what he will face as long
as he is alive.
That is a harrowing prospect for his family and it means they are
going to have to dedicate the rest of their lives, as mother and
father, to try to make his life on Earth as bearable as possible. So
$250,000 in that context has to be taken from a different perspective.
It goes beyond his medical bills, of which he will receive
compensation, to the question of pain and suffering for him and
certainly for his family.
If this young man, now at the age of 17, is going to live 20, 30, or
40 years, what is $250,000 worth? That $250,000 turns out to be a very
small amount when we consider that the injuries he suffered and the
problems he has endured are going to be there for a lifetime. So for us
to say we will decide in the Senate in S. 11, the bill that is before
us, that this little boy and his family will never receive more than
$250,000 regardless of the circumstances facing him for the rest of his
life, I think is totally unfair.
In fact, it is a dramatic departure from where we have been in the
United States for so long. We have said, first, that this is an issue
to be decided by each State. Each State should decide if there is going
to be a limitation on how much money someone can receive if they are a
victim of a certain injury or malpractice.
Secondly, we have said historically this is an issue not to be
decided by 100 Senators, men and women sitting in Washington, but
literally by 12 of this family's neighbors and friends who live in the
community, who will try to reach a fair amount of compensation when in
fact they find fault on the part of the doctor and the hospital. That
is the jury system. It is a system we have believed in in America from
the start of this Nation. It really is a system which parallels free
elections in America where we say we entrust our Government to the
people of this country.

In the courtroom, we entrust these decisions to the people of
America, 12 of them chosen at random to come to a fair conclusion.
Those who are pushing this bill today say we can no longer trust the
jury system in America; we cannot trust 12 of this little boy's
neighbors and friends and people in the community to come forward and
reach a fair verdict.
I think that is a terrible condemnation of a system of justice which
has really been the bedrock of American principles and American values.
It is curious to me that many of the same people who decide today
that the jury system consists of people who cannot be trusted will
readily trust the jury system when it comes to questions of criminal
penalties, penalties as severe as the death penalty. If we trust a jury
of 12 to decide the life or death of a criminal defendant, is it not
also fair to say we would trust them to decide a fair amount of
damages, a fair amount of compensation, for this child and his family?
Well, no. S. 11, offered on the Republican side of the aisle, says
the opposite. It says, we will make the decision here. We are smarter.
We know what is fair, and $250,000 is adequate compensation for this
little boy who will face a lifetime now of care on a daily basis,
minute by minute, whose mother has had to quit her job so she can stay
home and tend to this 17-year-old boy who was a victim of medical
malpractice.
Let me also add that equally unfair and unjust in S. 11 is the
treatment of people who are senior citizens, who have been the victims
of medical malpractice, because what this bill compensates are medical
bills and lost wages, and limits any other recovery to $250,000. So if
one happens to be a senior citizen who has no active income, perhaps a
little retirement and the money they derive from their savings, and
they are a victim of medical malpractice, they are limited to $250,000
compensation.
I will come back later today and talk about a couple who were
victimized frankly because a blood bank gave them blood that was
tainted with the HIV virus, which resulted in this 70-year-old couple
contracting that HIV infection, ultimately dying of AIDS. It was a sad
situation and one that was graphic in terms of the malpractice
involved. But because they were not wage earners, their compensation
under this bill would be virtually nothing.
The medical care which they would receive, of course, would be
compensated, but it would only be $250,000 for pain and suffering.
Let's go to the root cause of this debate. Why are we even talking
about medical malpractice on the Senate floor? It is because we do have
a serious national challenge. In many States, including my own, for
many specialities of medical practice we have seen medical malpractice
insurance premiums increasing at an alarming rate. When we have asked
the General Accounting Office and private firms to analyze why this has
happened, they have said there is a variety of reasons that have led up
to it. Yes, in fact, there are more settlements in cases involving
medical malpractice than there have been in the past, and in some
marginal cases more verdicts. It is an indication of the fact there is
more medical negligence being discovered, and even the Department of
Health and Human Services gave us testimony a few weeks ago that we are
facing medical negligence and medical errors across America, in their
words, of epidemic proportion. So now we have this huge wave of
exposure and liability coming at the medical profession, and naturally
there are more lawsuits that are being filed to reflect this wave, this
epidemic, of medical negligence.
What has happened on the insurance side to protect the doctors?
Sadly, this has been, frankly, a casino mentality among many of the
medical malpractice insurers. Back in the Clinton administration, when
we had a strong, vibrant, growing economy, when the Dow Jones index was
going up regularly and people saw their retirement incomes growing and
their savings growing, many people were investing in the stock market
and doing well and many insurance companies did as well, too.
In the case of medical malpractice insurers, they would collect the
premiums from the doctors, invest them in the stock market or in bonds
and do very well.
Now what has happened? In the last 2\1/2\ years under this
administration, we have seen the economy in recession; we have lost
jobs; we have lost businesses; we have seen people lose their life
savings; they have made new decisions on whether they have to continue
to work.
Business investment, as well, has not been as profitable. These
insurance companies that thought they had a winning formula are
starting to lose. The premiums collected from doctors, invested in
bonds and the stock market, have not been as profitable. Because of
this, many of these companies have gone out of business or raised their
premiums because of anticipated exposure for medical errors. Those
raised premiums have caused real hardship among doctors in America.
Senator Daschle came to the Senate floor yesterday--and I tried to
make the point, also--to say we understand

[[Page S9003]]

this issue is serious. On the Democratic side of the aisle, we have
offered to the Republican side of the aisle to come together on a
bipartisan basis to deal with the malpractice insurance crisis and the
malpractice crisis in America. But we cannot resolve this issue by
introducing a bill, S. 11, that only goes after one discrete part of
it--limiting the recovery of medical malpractice to victims.
This drastic response is not going to solve the underlying problem.
We need to come together on a bipartisan basis as we did on terrorism
insurance after September 11. We found a way to do it. But we can only
do it if we engage the three elements that can lead to success. Those
elements are: First, the medical profession itself. We have to bring
together those doctors of good will across America who want to work
with us to reduce medical errors, to bring more safety to the practice
of medicine, to take away from the practice of medicine those doctors
and practitioners who are largely responsible for medical malpractice.
Fifty percent of the medical malpractice claims in America can be
attributed to 5 percent of the doctors. We need to make certain the
medical profession is more vigilant in taking these doctors out of the
practice of medicine, are changing the way they practice medicine so
fewer innocent victims emerge from this experience.
Second, we need to bring in the insurance industry. I know this is a
sacred cow in the Senate, to talk about insurance companies and holding
them accountable for the way they are treating doctors across America.
But you cannot have an honest conversation about dealing with medical
malpractice premiums without talking about the insurance industry. We
could cap recoveries across America in every courtroom for every victim
of medical malpractice with no guarantee that medical malpractice
premiums are going to decrease for doctors across America.
Here is what I think we should do. First, we should eliminate the
antitrust exemption for insurance companies across America. To think we
allow these companies to collude, to come together and share pricing
information to the detriment of their customers--in this case, their
doctors--is indefensible. The McCarran-Ferguson Act should be repealed
so the antitrust exemption is removed from the U.S. industry.
Second, we need to look at the whole question of reinsurance. Most of
these malpractice insurance companies only protect doctors up to a
certain amount--perhaps $1 million or $2 million--in terms of their
exposure to liability. Then they sell off the additional exposure--
$2 million to $10 million, $2 million to $20 million--and buy insurance
to cover it. There are five major companies selling reinsurance in the
medical malpractice area. Four are offshore and not regulated by any
State or Federal regulation in the United States. We have no oversight
of the way they are treating malpractice insurers in America. That is a
guarantee that, no matter what we do in the Senate, there will still be
ultimate vulnerability by the medical profession to unreasonable and
excessive malpractice premiums.

The solution involves: Bringing together the medical profession to
reduce medical errors, to reduce medical injuries; bringing the
insurance industry in to make certain that we have some accountability
and fairness in the premium charges; and, finally, bringing in those in
the legal profession to make certain that any lawyer filing a frivolous
malpractice lawsuit is going to be held accountable for the costs and
attorney fees, initially, and ultimately, if he or she continues doing
so, banned from filing future lawsuits; also making certain that
punitive damages would be eliminated in virtually all medical
malpractice cases. All of these factors will move us toward a solution
to this problem.
This week, we are going to be visited by many doctors from across the
United States. They will come and tell us of their legitimate concerns
about malpractice premiums that are hurting their profession and
limiting the availability of good medicine and good doctors across
America. I do not quarrel with their premise that they have a problem
that needs to be resolved, that we need to face squarely and honestly.
But this morning, at 11 o'clock, I will hold a press conference in
which we will have five victims of medical malpractice. They will tell
their heartbreaking stories, how they went to the doctor, they went to
the hospital, and came home so injured and so changed that their lives
were never the same. The $250,000 being offered by the sponsors of S.
11 is totally inadequate to the injuries they suffered. The limitation
of $250,000 would make them wards of the state and dependent on
government and charity for the rest of their life. That is what is
being offered on the Republican side of the aisle.
The last point I make is this: When you read S. 11 closely, you will
find it is not only about doctors and hospitals, it is also about
protecting from liability HMO insurance companies and health care
organizations, the makers of medical devices, and those pharmaceutical
companies that are found to have been negligent in the sale of their
products.
I cannot understand how the medical profession can allow itself to be
used by the sponsors of this bill so that those who are coming in to
represent these special interest groups--the HMOs and managed care
organizations, the pharmaceutical companies, and the medical device
companies--get protection, using as their argument the sympathy that is
being generated on behalf of doctors who are struggling with
malpractice premiums. That is unfair to the doctors; it is unfair to
the hospitals; it is unfair to the Senate, that we would include in S.
11 that type of limitation.
Finally, this bill, S. 11, allows for punitive damages in the most
limited circumstances. It requires that there be a deliberate act on
the part of a doctor for punitive damages to apply, as well as
malicious intent being another option under punitive damages.

When I made an inquiry yesterday as to what it would mean if a doctor
were intoxicated or an addict to drugs and, because of that
intoxication or addiction, performed some medical procedure which
harmed a person for life, I was told that punitive damage section would
apply. I have to say quite honestly it does not because the language of
the section is only about deliberate and intentional conduct, not about
the kind of gross negligence involved in addiction and intoxication.
As we look at S. 11, we owe the medical profession as well as the
people of America more than is being offered. To bring this bill on a
take-it-or-leave-it basis, to say we will have no committee hearings,
no amendment process in committee, no opportunity for an exchange of
information, is not fair to the people of America. I hope we can do
better--I think we can--that when the vote takes place tomorrow on the
cloture motion, we will see a number of Senators are going to come
forward and ask that we try to resolve this difference in a fair way,
in a balanced way, rather than this unbalanced and unfair way being
offered.
Mr. REID. Will the Senator yield?
Mr. DURBIN. I am happy to yield.
Mr. REID. As I listen to the Senator today--and I am aware of what
the Senator talked about yesterday--is the Senator saying he is not
opposed to our doing something regarding medical malpractice?
Mr. DURBIN. That is exactly true. The Senator's home State, the State
of Nevada, was a classic example of serious problems that were
ultimately addressed last year by legislative action when the State of
Nevada accepted its responsibility.
We need to deal with this through each State, and we need to find
ways on the Federal level to try to make certain we do not have States
in crisis, as mentioned yesterday, because of malpractice premiums.
Mr. REID. The Senator is absolutely right. In Nevada, the Governor,
Republican Gov. Kenny Guinn, called a special session of the Nevada
Legislature to address this problem which was created by one insurance
company that decided to take a powder when the stock market fell, as
the Senator aptly described.
The Senator, who previously served in the House of Representatives,
also said during his statements in the Senate that if we are going to
move important legislation such as this, there should be committee
hearings discussing the legislation. It is true, is it not, that we
have had no hearings on this legislation?

[[Page S9004]]

Mr. DURBIN. I would say to the Senator from Nevada, that is accurate.
In fact, we had a limited hearing last February on the issue but not on
this bill. Senator Coleman of Minnesota had a hearing in the
Governmental Affairs Committee to talk about the general issue of
medical malpractice, where the administration testified we are facing
an epidemic of medical malpractice in America. But no one has sat down
to measure whether this bill will actually reduce malpractice premiums.
The only studies that have been done by the General Accounting Office,
as well as by a group known as the Weiss Institute, have come to the
conclusion that limiting the recovery of victims in medical malpractice
lawsuits is no guarantee of malpractice premiums coming down. In fact,
in many cases of States with caps on the recovery, limitations on
recovery for malpractice victims, the malpractice premiums for doctors
have gone up.
There is no linear connection or guarantee that limiting the recovery
for victims is going to help the doctors, yet that is the only solution
that is before us on the floor today.
Mr. REID. It is also true, is it not, I say to the Senator from
Illinois, that the two studies of the Weiss and the General Accounting
Office are not studies that have been paid for, were involved with or
directed by attorneys? Is that a fair statement?
Mr. DURBIN. That is exactly right. I would say to the Senator from
Nevada, it is true the medical profession feels very strongly on one
side and the trial bar on the other. But what I have tried to do is
gather information from those who have no axe to grind, people who are
trying to analyze this problem honestly. The conclusions they have
reached suggest to me this is a much more complex problem than what we
see today.
Unfortunately, S. 11 I think is a political answer to a much more
serious problem. If this is a question about whether the White House is
going to take on the trial bar in some sort of confrontation for the
next election, that is one thing. It is an interesting political
battle. It is not going to solve the problem, not in my State or any
other State. We have to deal with it honestly by saying the medical
profession, the insurance industry, as well as the legal profession
have to come to the table. We need to have not only committee hearings
so we can see publicly what this issue is all about, but we need to
have a good-faith effort. We can do it.
I think the Senator from Nevada recalls after 9/11 we had a problem
with terrorism, of course, and the threat of terrorism. That had an
impact on the construction industry and on investment. So people came
to us and said: We can't get people to invest in building new buildings
unless we do something about terrorism insurance.
We sat down on a bipartisan basis and worked it out. Senator Daschle
came to the floor yesterday and said: Use the same model on
malpractice. Bring us together, Republican and Democrat alike, and try
to find common ground and a solution. If it is not through a committee
process, let it be through an honest to goodness, good-faith
negotiation, but we can achieve that goal.
Mr. REID. The Senator is aware, is he not, the reason terrorism
insurance was held up for so long is that Republicans wanted absolute
tort reform, everything involving medical malpractice, slips and falls,
rear-end automobile accidents--everything. We said: Why don't we just
deal with terrorism insurance? We finally prevailed, and we have done a
good job. There is construction going on all over America today, and
they are able to go forward because they can get terrorism insurance
based upon the legislation we passed.

The Senator, as I understand it--I want to make sure I am correct in
this--believes reform is needed?
Mr. DURBIN. Yes.
Mr. REID. No. 2, you believe we should do it through the ordinary
process, have committee hearings.
Finally, you believe the insurance industry should be involved in
this because the McCarran-Ferguson Act, named after Senator Pat
McCarran of Nevada, was passed to give a few years of relief to the
insurance industry so they could gather together during the Depression
and not be involved with the Sherman Antitrust Act, and now, some 70
years later, they are the only business other than major league
baseball that is not subject to the Sherman Antitrust Act. So the
Senator believes they should be like other businesses in America,
subject to the Antitrust Act.
If we did some reform here and we involved the committee structure
and we involved the insurance industry, I think we could move the bill
pretty quickly. Does the Senator agree?
Mr. DURBIN. I agree with the Senator.
One other thing that needs to be part of the record: Even if we
enacted S. 11, which is the cap on recovery for medical malpractice
victims--children, elderly people and families alike--there is no
guarantee medical malpractice insurance premiums will come down. In
Nevada, significant reform legislation was passed but, as I understand
it, the premiums did not start coming down for some period of time, if
at all.
Mr. REID. It is absolutely true. The fact is, if you look around the
country, insurance rates have not gone down where these medical
malpractice reforms have been initiated.
But another thing it doesn't take into consideration is the
tremendous harm done to people who have no ability to move forward when
a doctor does something wrong to them.
I think the Senator indicated there are about 100,000 people killed
because of medical malpractice in America every year. But that doesn't
take into consideration the people who are paralyzed, people who are
injured and damaged in many other ways. With this cap, these cases
simply do not go forward.
So it is really not fair to analyze what goes on in those States
because you don't take into consideration the damage, the harm, the
pain and suffering of these people who have no way to recover their
expenses as a result of a direct negligent act by a physician.
Mr. DURBIN. I agree. I say to the Senator from Nevada, I do not
profess to be an expert, but I did, in my private practice as an
attorney before I came to the Congress, have several malpractice cases.
In some I defended doctors and in some I sued doctors for what I
believed to be malpractice. Those are heartbreaking cases and should
not be dismissed easily by the Members of the Senate until they sit
down and talk to families.
I can recall a family who brought in an infant girl to my office. She
had gone to the doctor for her ordinary baby shots, which I am sure the
Senator from Nevada and my family have done; we have brought our
children in for them without any real concern. This poor little girl,
because she had a condition known as roseola, a form of measles that
was undetected before the administration of the baby shot, ended up
with a serious reaction to the pertussis vaccine for whooping cough and
literally became a quadriplegic. This little girl was going to live the
rest of her life in a virtual coma-like state and need constant care.

What we hear from the other side of the aisle is that that is not
worth more than $250,000.
I would say, if I were the parent of that little girl, I would view
this a lot differently. I would want to have a jury of my peers to
decide what it is worth, what is the value.
But S. 11 takes away the authority of the jury to make that decision
and decides we will make the decision here for every case in America--
no matter how serious the injury to the infant or the person who is the
victim of malpractice, no matter what the circumstances--to strictly
limit it to a $250,000 recovery.
I think that is unfair. I think the Senator from Nevada has made the
point.
The last point I will make on this issue is that I think we need to
give the doctors immediate relief on malpractice premiums. I am going
to introduce legislation with Senator Graham of South Carolina that
will provide an immediate tax credit, in addition to the deductibility,
an immediate tax credit of up to 20 percent for relief to the
specialties that are hardest hit by these increases in premiums for
malpractice insurance--neurosurgery, OB/GYN, trauma surgeons. I really
believe we need to do something quickly.
S. 11 does nothing but change a law which may or may not, in 3 or 4
years,

[[Page S9005]]

result in premiums going down. It is far better for us to do something
on an immediate basis, an emergency basis. I hope the medical
association and societies across America will take a hard look at this
bill--it is being offered in good faith to deal with the immediate
crisis--rather than penalize the victims of medical malpractice.
Mr. President, I yield the floor.
Mr. REID. Mr. President, if I could say one thing--I know the
Democratic leader is in the Chamber--I have the highest respect and
admiration for my colleague from the State of Nevada, Senator John
Ensign, who has introduced this legislation. He is passionately
involved with doing something to solve this medical malpractice crisis.
As I have indicated, I have supported his efforts to do something about
it. He and I tend to disagree on how to do it. But I want the record to
be spread with the fact that I have great respect and admiration for
his moving forward on this problem.
I only wish there had been full committee hearings on his
legislation. I think it would have improved it before it reached the
floor. I think he has been shortchanged by not having his legislation
brought before the appropriate committee, had hearings, and then
brought here. I think with some changes in this legislation it is
something we could all support.
The PRESIDING OFFICER. The Democratic leader.
Mr. DASCHLE. Mr. President, I compliment again, as I did yesterday,
the distinguished Senator from Illinois for his great work on this
issue and for beginning this educational process that I think has to be
a part of the debate at this time.
I also want to thank, as is always the case, the distinguished
assistant Democratic leader for his involvement in these discussions as
well.
I have concerns about where we are with regard to this issue on at
least two counts.
First of all, the procedural count: I wish I had $1 for every
occasion when Republicans would lament the fact that the committee
process was bypassed. Yet here we are. There has been no hearing. There
has been no markup. There has been no committee consideration at all of
what is one of the most complex and extremely controversial issues to
face the Senate and the country. To bypass the entire committee process
and bring the bill straight to the floor does an injustice to the
issue.
As Senator Reid has noted, a bill of this magnitude deserves careful
consideration, deserves the opportunity to be heard, and deserves the
chance to have some debate in the committee among the experts who know
this issue. I think it would be very helpful.
It is interesting that the president of the Tort Reform Association
said don't count on insurance premiums going down if this legislation
passes. I think Senators need to know that. If the president of the
Tort Association of America says, look, don't expect any relief, what
is it we are doing? This isn't from some trial. This is a person who
advocates tort reform, but he is in the name of real honesty saying:
Look, this is not the reason we are arguing for tort reform today. It
is not going to bring down insurance premiums.
I think procedurally we have a real concern about the reason we are
here today. I think that is something that ought to be considered very
carefully. This is an important bill. It deserves the kind of careful,
substantive attention that only committees can bring.
Second, of course, is the issue itself. As the distinguished Senator
from Illinois has said so ably, we understand how important it is to
address the seriousness of insurance premiums. We have two approaches
before us: The one offered by the Senator from Illinois, and the one
offered by the Senator from South Carolina which will give immediate
relief. We are talking within the next couple of weeks, if this went to
the President's desk, immediate relief for meaningful insurance cost
reduction.
When I go home that is the issue about which doctors tell me they are
concerned. They can't afford to pay the premiums. There is no better
way to reduce the premiums than to give them the immediate relief
offered in the Graham-Durbin bill. But I must say this is also a
recognition of the concern.
There has to be a way to address the problems created when mistakes
are made. Tommy Thompson himself--certainly no advocate of the status
quo--has recognized that last year, the year before that, and the year
before that 100,000 people died as a result of mistakes made in
operating rooms, in clinics, and hospitals across the country. That is
not my figure. That is not some special interest figure. That is the
Secretary of Health and Human Services--100,000 people died.

I oftentimes find myself equating numbers with Vietnam and Vietnam-
era veterans. We lost 58,000 people in Vietnam. We are losing almost
twice that number every year due to mistakes made in operating rooms
and in hospitals.
What I find perplexing--interesting--is that our Republican
colleagues, who say the States know best how to govern, are saying:
Well, in this case we don't think that is the case. In this case what
we think is we know better. Washington is going to dictate to the
States what the laws with regard to tort will be. Not only are we going
to set the cap at $250,000, but we are actually, under the legislation
before us today, going to preempt every single State law except the
cap.
We are going to tell the States we know better and we are going to
dictate to the States what it is they are going to have to abide by
from here on out--total Federal preemption of State law. It is amazing
that is coming from our Republican colleagues.
I would also say I am concerned because I can probably even consider
looking at caps if there was any conclusive evidence that caps work.
There is a very respected analytical group that made, with some
fanfare, a decision a couple of years ago to examine this whole
relationship between caps and premiums. They announced when they
started the study that they did not know how it is was going to turn
out. It could be pro-cap or it could be anti-cap. They didn't know. But
they believed an objective review of the available information ought to
be considered. They studied it. They looked at every single State. They
released their findings about 3 weeks ago.
Do you know what they found? They found that there is no
relationship. In fact, what they found is, in those States where there
are caps, insurance premiums went up more than in those States that
didn't have caps.
They are not arguing that caps had anything to do with it. But it is
an interesting fact. Those States today with caps have actually seen
higher insurance premiums than those without caps, according to this
very respected independent study just released.
Both on the substantive as well as on the procedural issue, we have
great concern with the fact that we are here today. We have a solution.
I would argue to anyone on the other side who really wants to resolve
this issue that we go back to what we did last year with terrorism
insurance. That, too, was a tort reform question. Member after Member
came to the floor and said unless we deal with tort reform we will
never solve the terrorism insurance question. We sat together in a
bipartisan fashion--Republicans and Democrats--worked out a reinsurance
concept and passed it on the Senate floor, finally, after a great deal
of tribulation and negotiation, with a large margin.
If you go to New York or to Chicago or to the hometown of the Senator
from Illinois or a lot of other places, you will find that the
terrorism insurance bill worked. I would argue it worked in part
because procedurally we decided to come together and resolve it and
solve it. I think it worked in partly because we addressed the issue
with real solutions. We didn't get hung up on all of this tort reform
because that wasn't the issue there either.
Today, we still celebrate a success story. We celebrate a success
story here, too. We have a bipartisan Graham-Durbin bill. It might not
be everything. Maybe we can figure out a way to make it an even better
bill. I think we have to deal with reinsurance. I think we have to find
a way to deal with reinsurance reform. We have to provide immediate
relief and the tax credit relief proposed by the Senator from Illinois.
We can do that. I think it is important that we do it. I think it is
important that we recognize unless we do it that way we are not going
to solve this issue.

[[Page S9006]]

Cloture will not be invoked tomorrow--not because we don't want to
solve this problem but because we don't want to have a bill that is
poorly conceived and will not solve the problem and which will be
rammed down the throats of the country. We can find a better way to do
this.
I would just implore my colleagues on the other side to work with us
to make that happen.
Let me again thank the distinguished Senator from Illinois for his
work.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I thank the Democratic leader for his
comments and for his leadership on this issue. I think he has shown a
good-faith effort in the past to deal with issues and with the
complexity of terrorism insurance. And that opportunity is still here
today.
This week in Washington, many representatives of the medical
profession will come to visit us and talk about the seriousness of this
issue. They don't need to convince me; I am convinced.
The question is, How do we resolve it fairly and not just for doctors
but for the victims of medical malpractice. We can do this. But I don't
believe S. 11 is the way to approach it.
If we are going to allow this to disintegrate into a political face-
off between the White House and the trial lawyers of America, perhaps
when it is all over someone will have bragging rights for a 30-second
ad. It will not help the doctor with whom I met who is serving
Primbrook Township, south of the city of Chicago about an hour-and-a-
half drive. You will find some of the poorest rural towns in America in
Primbrook Township. This doctor is literally giving his life to the
poor who need medical care. He said to me 2 weeks ago in Washington:
Senator, I am here to receive this Jefferson Award, and I am proud of
it, but I need help with malpractice insurance. I want to help him.

Limiting the recovery by malpractice victims may ultimately give
someone some satisfaction that they have scored a political victory
over the trial bar, or perhaps their limitation of victims' recovery
will give them some satisfaction, but it is not going to help that
doctor. It is not going to reduce his premiums. It is not going to give
him an opportunity to continue his practice.
So I say to my friends in the medical profession--and this doctor is
a good example--we honor and respect what you do. We need you. We need
to work with you. Do not get so caught up in a political agenda
involving the White House and the trial lawyers that you overlook the
fact there are many people of good faith and good will who want to sit
down and help.
We believe this can be done. It can be done in a way that is not
going to deny the parents and the family of the small child, who, as I
mentioned earlier, is going to live a lifetime of medical dependency
because of medical malpractice. It is not going to be done in a way
that is going to deny a woman who went in for simple cosmetic surgery
and ended up with horrific burns on her face that required a dozen
operations and years and years of suffering. That is not the way to
resolve this.
Do this in a fair way for doctors; do it in a fair way for medical
malpractice victims. Do not be afraid to call in the special interest
group, the insurance companies, and tell them they have to be part of
this conversation. We have the power in Congress to bring them in. We
have the power to change the laws to make sure they treat doctors and
hospitals fairly and to make certain the medical profession comes
forward.
It is interesting to me that as I have discussed the issue of medical
malpractice with doctors in my State and across the Nation, they have
been of one mind and one voice and they have agreed: We need to do more
to make certain we reduce the incidence of medical errors.
A doctor, who is a friend of mine, in Decatur, IL, also works on the
board of a local hospital. He said he went to the hospital pharmacy
where they literally write thousands of prescriptions each year for the
patients who come through that hospital and they wanted to find out how
many errors had been made in the prescriptions that had been written.
They came up with a handful of examples. The doctor said to me:
Senator, I know better, and you know better. We're not doing a good
enough job here to make certain that mistakes are not made in the drugs
that are prescribed and the prescriptions that are written.
We can do a better job--and we should--to have medical safety.
Doctors want the best results. They do not want bad results. Certainly,
the families and patients do not, either. We can work together to try
to improve medical care in America in a professional way.
The bill I am going to introduce is going to allow for the transfer
of information, data on medical safety, and the transfer of information
without legal liability, so a doctor who would report an incident at a
hospital that may lead to a change in a procedure or perhaps to a
disciplining of a doctor is not going to be held legally responsible
for having come forward with this information.
I think that is the only fair and honest way to deal with this issue.
But if we are going to deal with it, let us look at each of those
components: the medical profession, the insurance industry, as well as
the legal profession.

What I do not want to see occur is what S. 11 really mandates; that
is, instead of a jury of 12 in communities across America taking a look
at each individual case to decide what a fair, reasonable verdict and
outcome might be, we would have a jury of 100, 100 Senators, men and
women elected here, who would sit in judgment of every single case in
America involving medical malpractice.
We are not going to hear the story of the parents, who are going to
come from that downstate community in Illinois, who took their little
boy in with a high fever, who expected medical care--which each of us
would expect as parents bringing in our baby with a fever to a clinic--
and did not receive it because no temperature monitor was in place and,
as a consequence, that little boy's high fever led to complications,
quadriplegia, and the fact that he now has a lifetime of medical
dependence on his parents. He will never enjoy the simple things in
life which each of us takes for granted.
We are not going to hear that story in the Senate as a jury would
hear in a courtroom. We will not hear the details of his life and what
it means now: the pain and suffering he goes through every single day.
No, we will not hear those facts. We will not make a decision based on
the reality of the malpractice that this family and boy endured.
Instead, we will make a decision, under S. 11, that says $250,000 is
the maximum amount that boy and his family will ever receive for the
injuries which they have suffered when it comes to pain and suffering.
That isn't fair. We should not stand as a jury and make that decision.
We ought to trust a jury system that has been part of American justice
for a long time, a system that we rely on every single day in thousands
of courtrooms across America.
I think a sensible approach is to say that we do have a problem; we
will work with the doctors; we will work with the insurance companies;
and we will work with the legal profession to find a reasonable
alternative to it. S. 11 is not that alternative.
If, in fact, the cloture motion is defeated tomorrow, which means we
do not proceed to the bill, I make this offer, not only to the sponsors
of that bill but to all who are interested in this issue, that I will
personally engage myself in trying to find a reasonable, good-faith
alternative that reduces malpractice rates, premium rates, particularly
for those doctors who have no experience of wrongdoing--now, there are
some doctors paying high rates who, frankly, have to pay them because
they have been found guilty of malpractice--but for the innocent
doctors, who have given their lives to medicine and who come forward
every single day in a valiant effort to save and improve lives, I will
stand on their side to make certain that they are treated reasonably
and fairly.
Please do not turn to S. 11 as your only recourse because S. 11,
being offered on the floor today, is one bill which is as unfair to
malpractice victims as the insurance premiums are unfair to doctors in
many places in America today. Let us work together--

[[Page S9007]]

as we can; as we did under the terrorism insurance legislation--to find
a reasonable alternative.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will please call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Enzi). Without objection, it is so
ordered.
Mr. SCHUMER. Mr. President, I ask unanimous consent to address the
Senate for about 15 minutes on an upcoming judicial nomination.
The PRESIDING OFFICER. All remaining time is on the majority side. Is
there objection?
Mr. ENSIGN. Mr. President, I was scheduled to make a statement on the
medical liability bill, and I am prepared to do that at this time.
Mr. SCHUMER. Mr. President, I ask the Senator how long he intends to
speak.
Mr. ENSIGN. Probably 10, 20 minutes.
Mr. SCHUMER. I ask unanimous consent that after the Senator from
Nevada finishes his remarks, I be recognized for 15 minutes on the
nomination of Mr. Wolski on which we will vote at 11:45 a.m.
The PRESIDING OFFICER. It was the Chair's understanding there would
be a substitute in the chair so he could make a statement on the
Republican time following Senator Ensign's speech and that the debate
would begin at 11:30 a.m. on the judges.
Mr. SCHUMER. Mr. President, are you saying there is no time between
now and 11:30 a.m.?
The PRESIDING OFFICER. All the time has been reserved on the
Republican side.
Mr. SCHUMER. I thank the Chair.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. ENSIGN. Mr. President, I have come to the Chamber to talk about
the legislation we are going to be discussing for the next couple of
days. It is very important legislation that affects people in virtually
every State in the country.
We have patients today being denied access to medical care in many
States across the country, and we are going to explore why that is
happening and what I believe the solution should be. Several States are
losing medical professionals at an alarming rate, leaving thousands of
patients without a health care provider to serve their needs.
In Bisbee, AZ, the town's only maternity ward closed. Today expectant
mothers must drive more than half an hour to have their babies
delivered. In Mississippi, 11 out of 21 obstetricians terminated
service in four rural counties. In my home State of Nevada, our only
level 1 trauma center closed for 10 days, leaving every patient within
10,000 square miles unserved by a trauma unit.
The bottom line is patients cannot get care when they need it most.
By definition, this is a crisis. This crisis boils down to two factors:
affordability and availability of medical liability insurance for
providers.
The States in red are currently in crisis. A number are new States in
crisis. We can see they have been added, including the Chair's State of
Wyoming. My State has been in crisis for quite some time now, and it
has led to a lot of the national press, but it is certainly not alone.
The States indicated in yellow are the States that have problem signs.
The States that currently seem to be OK are indicated in white, and we
can see that very few States are in pretty good shape. Most of those
States have enacted medical liability reform that has been in place
long enough to stabilize the rates on medical liability insurance.
On affordability, the American Medical Association found that in the
year 2000, medical liability insurance rates increased at least 30
percent in 8 States and by at least 25 percent in more than 12 other
States. In this past year, the physicians in my State would be pleased
if the rates had only gone up that much. These rates are forcing more
physicians, hospitals, and other health care providers to limit their
practices or to leave the profession altogether.
Anecdotally--and obviously this hospital would not want this word to
get out--at this time of the year when they get applications for new
residents, they normally get about 18 to 20 residents applying for
slots at that hospital. That is an average of 18 to 20 each year. This
year they have received zero applications, and that is because of the
medical liability crisis that is occurring in my State.

Rates are forcing so many physicians and hospitals into a situation
they did not want to be in. They went into these practices because of
the compassion they felt for patients, and they are not being able to
deliver the services because of the out-of-control costs of medical
liability insurance.
On the issue of availability, thousands of doctors nationwide have
been left with no liability insurance as major insurers are either
leaving the market or raising the rates to astronomical levels.
Why are insurers raising rates or leaving the market? Because there
is no stability in the marketplace for providing medical liability
insurance. Why is that the case? Because our health care system is
being overrun by frivolous lawsuits and outrageous jury awards. This
excessive litigation is leading to higher health care costs to every
American and an unstable peace of mind for our health care providers.
This chart shows the average payment in red from the year 1989 to the
year 2001 and the median payment. We can see the dramatic increase,
especially in the last few years, and if this chart continued out, it
is continuing that trend up to the point where the average being paid
in jury awards is continuing to skyrocket, and it is doing that because
of the number of over $1 million awards being made by juries.
This is a chart reflecting the median jury award. We can see this is
the $1 million line, and we can see what has happened. It has gone up.
This, unfortunately, has created a situation where doctors, hospitals,
and health care providers cannot afford to buy the insurance they need
to continue practicing.
This excessive litigation is leading to higher health care costs for
every American and an unstable peace of mind for our health care
providers. Health care professionals are forced to practice defensive
medicine by ordering unnecessary tests just to avoid being sued for
``underdiagnosing'' their patients. A study by the Department of Health
and Human Services found defensive medicine is costing the Federal
Government an estimated $28 billion to $47 billion in unnecessary
health care costs.
Who else pays for these unnecessary costs? Every American with health
insurance in the form of higher premiums and, obviously, the American
taxpayer. Too often costs are so great that employers have to stop
offering coverage altogether, thereby increasing the number of
uninsured Americans. A lot of those uninsured Americans are younger,
healthier people. So the people who are left in the health care field
are a higher risk pool, which drives up the cost even more, which
causes more and more people to not be able to afford health care
insurance; therefore, more uninsured. It is a vicious cycle that goes
on and on. This cycle has to be stopped. We can do that by passing
national medical liability reform right now.
Comprehensive reform is critical on a national level because every
American patient should have access to affordable and high quality
health care. Likewise, every responsible, meritorious member of the
health care community should not be afraid to provide such care because
of the fear of litigation.
To achieve these reforms, I have introduced the legislation that is
before us today, known as the HEALTH Act. It has several key reforms.
It includes a $250,000 cap on noneconomic damages, joint liability, and
collateral source improvements, and limits on attorney's fees according
to a sliding scale award.
In addition, my legislation includes an expert witness provision to
ensure that relevant medical experts serve as trial witnesses instead
of the so-called professional witnesses who are used to further abuse
the system today. If one talks to physicians, there is literally a
whole industry that has been created of these ``professional
witnesses.'' It would make sense that if somebody

[[Page S9008]]

was testifying in a case involving neurology, that the person should
have expertise in the field of neurology. I think that makes incredible
common sense, but that is not the way it works today. As long as
somebody is a physician, they are able to testify and be called an
``expert.''
Our legislation today says that if they are to be called an expert,
they must have expertise in the field in which they are testifying.
Over 50 organizations are in support of my bill, including business
groups, medical associates, device manufacturers, and the list goes on.
I have heard from people all over my State, and not just physicians.
This is not a doctors versus lawyers issue. This is about patient
access to medical care. That is why we have heard from nurses, physical
therapists, and people who work in doctors' offices and understand the
problem that is going on. We have heard, of course, from physicians,
but we have also heard mostly from the patients who understand; we have
gotten so many calls from women whose physicians used to deliver
babies. The women are now pregnant and their obstetricians no longer
can deliver babies because they may be a high risk delivery and they
can no longer afford to provide that type of a service.
The broad coalition that has come forward to urge meaningful reform
highlights that this problem affects a number of industries, not only
our health care system. Starting the Senate debate with our strongest
proposal is critical because we must not approve a weak bill that the
President will not be able to sign into law. Doing something weak as a
Band-Aid would actually make things worse, and that is why we need very
strong legislation.
Opponents of this legislation ask how I know this approach works. It
works because this legislation is modeled after the highly successful
legislation that passed and has been in place for over 20 years in
California. It is known as MICRA. MICRA has brought about real reform
to California's liability system. The number of frivolous lawsuits
going to trial has declined dramatically. Injured patients receive a
larger share of their rewards because of the limits on the fees that go
to the trial attorneys. Disciplinary actions against incompetent health
care providers have increased.
The bottom line is that California's medical liability system works.
This is a quote by one of our colleagues from the other side of the
aisle, Senator Dianne Feinstein, January 14, 2003:

With the California law, we have a time-tested solution.
California passed MICRA in 1975, so we have our 27 years of
successful experience with the law.

One important point, neither MICRA nor my legislation limits the
amount of economic damages that an injured patient can recover. As in
every other profession, mistakes are made by health care providers. I
practiced veterinary medicine after graduating from Colorado State
University. I saw firsthand that mistakes are made.
Medicine is an art and a science, and there is a human being
practicing that very inexact science. Every day somewhere mistakes are
made. They are unfortunate. We should do everything we can to limit
those mistakes, but we know mistakes will be made.

Sometimes they are mistakes in judgment. When one looks back in
hindsight, they can see how they could have made that decision
differently. But when they are faced with it at the time, because the
human body does not read the textbook--this is how the disease is
supposed to progress, this is how the injury is supposed to progress--
the human body does not read that. So sometimes it reacts differently
to the way the physician was trained, and so what looks like a mistake
in a court of law could have actually been a very difficult judgment
call. Yet a lot of these are frivolous lawsuits that are going to
trial.
In our legislation, we are trying to bring some balance back to the
system. We do limit the amount of noneconomic damages, pain and
suffering as it is most often referred. People say, how can that be
limited? How can losing a leg be limited or how can a dollar figure be
put on that?
Well, a dollar figure can never be put on it. No amount could ever be
justified to somebody for some of the things that happen to them, but
we have to look at the overall good of our system.
With the system we have now, we are losing doctors, and we are losing
the kind of patient care we need. How does one put a dollar figure on
the doctor not being there, on the health care provider not being
there, on the hospital closing, on the trauma center closing?
We had a press conference several months ago in Washington with a
woman whose father was in Las Vegas visiting, and it happened to be the
week that our trauma center closed. During that week, unfortunately, he
needed our trauma center. I cannot tell my colleagues that he would
have lived if it was open, but the reason trauma centers exist is
because they provide intense expertise in the area of trauma. They have
great results, much better than normal emergency rooms. Unfortunately
for this family, that trauma center was closed.
By the way, the only way we were able to reopen the trauma center in
Las Vegas was because the State stepped in and said that we are going
to limit not to $250,000, but we are going to limit to $50,000 any
injuries and malpractice that occurs. That is not just noneconomic,
that is even economic damages. That is the only way that the trauma
center in Las Vegas was able to open. We are losing all kinds of
experts in emergency rooms in other areas in Las Vegas as well.
People talk about decreasing the amount of mistakes by physicians,
and we need to do that. It is very difficult and very complex to do.
One of the ways we can do that is to enact legislation to encourage
voluntary reporting. The current system actually is a protectionist-
type system that if somebody voluntarily reports mistakes, they set
themselves up for lawsuits. So we have no way to follow where the
mistakes are being made and to point out trends so we can correct those
mistakes.
The House has passed patient safety legislation. We are going to be
working on that in the HELP Committee, of which I am a member. I hope,
in a bipartisan fashion, we can craft patient safety legislation that
will make the outcomes more of what we all want to see. That means
fewer mistakes. But understand that there is no way to have a mistake-
free environment in such an area where the science is so inexact. We
have an opportunity here.
We have an opportunity with so many States now in crisis. The States
in red on the chart are in crisis; the States in yellow show serious
problem signs. We have a chance in the Senate--the House of
Representatives has already enacted this legislation--to make a real
difference in patients' lives. We can make sure trauma centers do not
close. We can make sure when a woman needs access to an obstetrician
she can have that access.
A friend of mine has Parkinson's disease, lives in Las Vegas, and has
to go to Loma Linda where his specialist treats him. We do not have
that particular field of subspecialty in southern Nevada. He talked his
physician into coming to Las Vegas before the crisis hit Nevada. When
the crisis hit and we lost our major carrier of medical liability
insurance, the rates literally doubled and tripled overnight, and that
physician decided to stay in California. Why? Because they have enacted
a law that has kept rates reasonably low.
My next chart shows differences in larger cities around the country.
First, OB/GYN in Los Angeles, a well-to-do area that has enacted
medical liability reform, $54,000 on average for an OB/GYN; in Denver,
also where they have had enacted legislation, $30,000. Then we have New
York, Las Vegas, Chicago, with Miami the worst. These are places that
do not have medical liability reform. In Miami, rates are over $200,000
on average for an OB/GYN.
People say doctors make plenty of money. Have you talked to an OB/GYN
lately about their average income? In Las Vegas, the average income is
around $200,000 for an OB/GYN who goes through 8 years of undergraduate
and medical school and then a 5-year residency. They come out $250,000
to $300,000 in debt minimum and they work about 100 to 110 hours a week
to make $200,000. And their rates now in Las Vegas are around $130,000
to $140,000, up from a couple of years ago around $40,000 or $50,000 a
year.
Because of managed care they are not able to increase their rates, so
it comes out of their pockets. That is why a lot of them are leaving
our

[[Page S9009]]

State. That is why a lot of new people are not going into the practice
of obstetrics and gynecology. Especially for delivery of high-risk
patients, rates have skyrocketed. Many physicians simply will not treat
high-risk patients.
What are the women to do with a high-risk pregnancy? More and more
women today are choosing to have babies later and later in life, and
more and more of them have high-risk pregnancies as a result. With
fewer and fewer doctors able to deliver high-risk pregnancies, this
does not add up. That is why it is so critical to enact this
legislation before the Senate today.
I know where the politics lie. We will probably not be able to pass
this legislation at this point. However, I want people to take a hard
look, talk to the patients in your States, find out what is really
happening at the grassroots level. This is not a question of how much
money a physician makes. This is not a question of whether hospitals or
insurance companies are going to be profitable. This is a question of
whether when somebody needs the health care services to save lives or
deliver babies, that health care will be there because the provider is
there.
I am passionate about this issue because people are in jeopardy of
not getting the kinds of lifesaving services they need, the types of
services that improve the quality of life for so many Americans. That
is why this legislation is so critical today.
As we go forward over the next 24 hours debating this bill, I
encourage Members to have a healthy debate with an up-or-down vote and
start hearing from the American people on this issue. If Senators
listen to their constituents, they will hear loudly and clearly we need
to reform our medical liability system so we can afford to have health
care that is so desperately needed.
I yield the floor.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Are we in morning business?
The PRESIDING OFFICER. We are in morning business with remaining time
on our side of 4 minutes 21 seconds.
Mr. REID. Mr. President, I ask that the Senator from Idaho be given
whatever time he needs. He is talking about a very important subject.
The PRESIDING OFFICER. There is a unanimous consent to begin debate
on judges at 11:30.
Mr. REID. I ask unanimous consent the Senator have whatever time he
needs up to 25 minutes to the hour for this very important statement.
The PRESIDING OFFICER. Without objection, it is so ordered.

____________________