[Congressional Record Volume 149, Number 100 (Wednesday, July 9, 2003)]
[Senate]
[Pages S9061-S9083]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             PATIENTS FIRST ACT OF 2003--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration on the motion to proceed to the consideration of 
S. 11. Under the previous order, the time until 11:30 a.m. will be 
equally divided between the majority leader and the minority leader or 
their designees.
  Mr. McCONNELL. Mr. President, the measure we are hoping to proceed 
to, the Patients First Act of 2003, seeks to

[[Page S9062]]

address a major national crisis that confronts us in health care. Two 
weeks ago, or right before the recess, the Senate and the House acted 
on a major new health care proposal to modernize and preserve Medicare 
and to add a prescription drug benefit for our seniors. Now the Senate 
seeks to address another part of America's health care crisis--one the 
House of Representatives has already dealt with--which is the question 
of the rising cost of medical liability premiums, forcing physicians 
out of certain specialties or, in the case of young physicians, 
choosing not to go into such high-risk specialties as obstetrics 
because they know they won't be able to afford the medical malpractice 
premiums and still perform the service for which they have been 
trained.
  Last year, when we dealt with this issue, there were about 11 or 12 
States that were in crisis. Now there are 19. There are only 6 of our 
50 States that have no problem at all. All the rest are on the way to 
having a major national crisis.
  The underlying bill that we are seeking to get permission to go to--
the principal sponsor is Senator Ensign of Nevada, who is here to my 
right and has been an active and major player in the legislation--is 
very similar to the measure that passed the House. It is also supported 
by the President of the United States. So we know that if we were to go 
forward with a bill similar to this, it could get a Presidential 
signature and we would be well on our way to dealing with this enormous 
problem that is beginning to deny patients care all across our country.
  So when the Senate has an opportunity to vote, I hope Members will 
vote to invoke cloture on the motion to proceed so we can go to the 
bill and begin to address this incredibly serious national problem.
  I commend Senator Ensign for his leadership on this issue. His State 
has certainly been one of those that has had an enormous crisis and 
they are trying to deal with it at the State level. He can address 
that. But the point is that this is a national problem that needs to be 
dealt with by the National Government.
  That is what we are seeking to do today: to get an opportunity to get 
on to the bill and deal with this extraordinary health care crisis that 
we have in the country.
  I will have more to say later in the morning and particularly just 
prior to the vote.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, I appreciate the words of the majority 
whip. I rise today to speak on behalf of the bill that I have 
introduced, the Patients First Act. The reason we call it the Patients 
First Act is because it really does put patients first.
  In our health care system today, we have too many patients who are 
either close to being denied care or have been denied care simply 
because physicians cannot afford the medical liability premiums they 
are facing today.
  My State, as the Senator from Kentucky mentioned, is one of those 
States that is in crisis. Our State has a level I trauma center which 
serves a four-State region, and last year that trauma center closed for 
10 days. The closure of that trauma center was the only event in my 
state of Nevada that brought the people who were against reforming our 
medical liability system and our overall tort system and the proponents 
of that reform together. This crisis allowed a special session of the 
legislature to be called so they could try to deal with this situation. 
I commend our Governor and State legislators for their efforts to deal 
with the situation.
  The problem in Nevada, as with other States that have enacted reform, 
is it will take 6 to 10 years, depending on the length of the appeals 
and the challenges to the law, before we know whether the bill will 
actually take effect and have the result of lowering the costs for 
medical liability insurance.
  In the meantime, Nevada and many other States are losing doctors in 
droves. Nevada is the fastest growing State in the country, and we 
cannot afford the migration of doctors from our state to continue.
  Speciality fields are the most severely affected by this crisis, and 
of those, obstetrics and gynocology are of the most severely affected. 
In southern Nevada, we have 5,000 to 6,000 new people a month moving 
in. This increase in our population during this time of crisis has 
resulted in three things happening.

  One is we are losing doctors; two is new doctors are not coming to 
replace them; and three is, the few ob/gyns who actually are staying, 
when they were delivering 250 to 300 babies a year previously, they 
have cut that number down to 125; 125 babies from 250 to 300. One can 
do the math. It does not add up.
  Additionally, many doctors who previously delivered babies in high-
risk pregnancies no longer can deliver them because their insurance 
company will not cover them for that procedure. We are in a situation 
where some of our best doctors are not able to give the care they are 
are capable of giving.
  I see my friend from Wyoming just arrived in the Chamber. Mr. 
President, I say to him, I am going to take a couple more minutes and 
then I will yield the floor.
  This is not just a Nevada issue. As the Senator from Kentucky 
mentioned, 19 other States are in crisis, and all but 6 States are 
showing signs of heading into a crisis. In every State that is in 
crisis or heading into a crisis, we hear the same kind of stories from 
patients. It is a real problem, a problem the Senate must address. The 
House has already dealt with it. Now the Senate must deal with it.
  This crisis is a national problem. For Medicare, Medicaid, veterans, 
60 percent of all the medical bills are paid through the Congress. 
Because of that, it is a national issue and it requires the House of 
Representatives and the United States Senate to act in concert to send 
a bill to the President. The House has done its job. Now it is up to 
the Senate.
  I will share one or two quick anecdotes to illustrate real people who 
have been touched by this issue.
  During the closure of the level I trauma center in my home State of 
Nevada, a woman and her father, Mr. Lawson, were in Las Vegas visiting 
when this level I trauma center closed. The father had to be 
transferred to a different emergency room, and on his way there, 
unfortunately, this gentleman passed away.
  Level I trauma centers are staffed with the most talented, 
specialized people in the medical profession. We have trauma centers 
specifically staffed by the best because they must save lives that are 
in jeopardy every day. That trauma center closed because the 
specialists could not afford the insurance, and they could not afford 
the liability from the exposure of potential high-risk surgeries to 
save lives.
  The only way the legislature was able to open that trauma center 
again is they covered the people who worked there under the umbrella of 
the State.
  By the way, when we talk about caps, my home state of Nevada has a 
cap of $50,000 total for economic, non-economic and medical. It is a 
total $50,000 cap, obviously much more severe than we would even think 
to consider in this body. In the bill before the Senate today we have a 
$250,000 cap on pain and suffering, but an unlimited amount on economic 
damages and medical expenses, and if there is gross negligence, there 
are punitive damages in this bill as well.
  We think we have taken a balanced approach so that patients 
throughout this country are not denied care, such as when the trauma 
center in Nevada was forced to close, do not have to go through that 
experience again. We have to ask the fundamental questions: How many 
more people have to be denied care who really need it? How many more 
people have to die in this country before this body will take action? 
That is really the bottom line today. People are being denied care, and 
more and more people will be denied the care they really need. That is 
why this institution needs to act.
  Mr. President, I yield the floor so the Senator from Wyoming may 
speak.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. ENZI. Mr. President, I thank the Senator from Nevada. I always 
appreciate his comments. He has one of the fastest growing States in 
the Nation. I come from the most sparsely populated State in the 
Nation. We have some very common problems.

[[Page S9063]]

  In the last couple of days, we have heard a lot of discussion about 
insurance companies. We have heard that medical liability insurers are 
the source of the problem; that they are gouging doctors to make up for 
investment losses.
  Well, the Nasdaq index yesterday closed at its highest level since 
April 2002. The Nasdaq is up more than 30 percent since the beginning 
of the year. For that matter, the Dow Jones Industrial Average is up 
more than 10 percent in 2003. Under the logic we have heard this week, 
the stock market rebound ought to be leading to a sharp reduction in 
medical liability premiums. So why aren't we seeing any relief?
  We are not seeing any relief because insurance companies are paying 
out more in losses than they are receiving in premiums. It is that 
simple. It does not take an accountant to figure that out. For every 
premium dollar collected in 2001, medical liability insurers 
experienced $1.53 in losses. Ten years earlier, for every premium 
dollar collected, insurers lost $1.03.
  Regardless of investment gains or losses, the fact is that payments 
for medical litigation judgments and settlements are rising much faster 
than the incoming premium payments, even though premiums are escalating 
dramatically. Insurance companies cannot make up the gap between the $1 
they take in and the $1.53 they pay out without raising premiums. That 
is why we are not seeing reductions in medical liability premiums, 
despite the stock market's advance in 2003.
  It all comes back to our legal system. It is simply out of control. 
People who are truly injured by health care errors ought to receive 
fair compensation. The problem is that our medical justice system is 
completely out of whack. Doctors and hospitals live in constant fear of 
litigation. They order unnecessary tests out of legal fear.
  Doctors look at their patients as potential lawsuits, not people in 
need of their help, because of this legal fear. They are forced to move 
their practices to States that have reformed their legal systems. All 
of this because of legal fear.
  Some of my colleagues may have read a book that came out several 
years ago, in 1995. The book was called ``The Death of Common Sense.'' 
The book was written by Philip Howard, a lawyer by training. His 
premise was that American law and regulation are stifling human 
judgment and good sense.
  Well, Mr. Howard just published a new book, and I encourage my 
colleagues to read it. It is called ``The Collapse of the Common 
Good.'' In the book, he describes how law and regulation in America 
create a warped sense of individual rights. In America today, people 
use the concept of individual rights to bully other members of society, 
using the threat of legal action as a weapon.
  Some of what Mr. Howard has written is pertinent to this debate. For 
instance, some of my colleagues believe that this legislation would 
limit a patient's right to sue a doctor. We all believe that patients 
who are truly injured deserve fair compensation. The problem is that 
some personal injury lawyers are taking advantage of this belief to 
bring all sorts of claims against doctors, whether the doctors are at 
fault or not.
  Let me share a passage from Mr. Howard's book. He writes on pages 22 
and 23:

       Like ancient Mayans accepting human sacrifice or Catholics 
     in the Middle Ages buying indulgences, Americans today accept 
     that being sued is the price of freedom, and that diving for 
     cover is the natural response to reasonable daily choices. 
     Our faith in individual rights keeps us from pausing even to 
     question this conception of justice. But should individual 
     rights include the right to go to court over a sandbox 
     disagreement involving 3-year-olds, or to milk the system 
     whenever there is a freak accident, or to scare towns and 
     school systems out of seesaws and peanut butter? The idea of 
     individual rights derives its moral force from the rhetoric 
     of liberty. But is this what our founders had in mind when 
     they organized a society around the freedom of each 
     individual?
       Actually, no. Our founding fathers would be shocked. There 
     is no ``right'' to bring claims for whatever you want against 
     someone else.
       Suing is a use of state power. A lawsuit seeks to use 
     government's compulsory powers to coerce someone else to do 
     something. Asserting individual rights sounds benign, like 
     praying in the church or synagogue of your choice. Sticking a 
     legal gun in someone's ribs, however, is not a feature of 
     what our founders intended as an individual right. The point 
     of freedom is almost exactly the opposite: We can live our 
     lives without being cowed by use of legal power. The 
     individual rights our founders gave us were defensive, to 
     protect our liberty. Liberty, we somehow forgot, does not 
     include taking away someone else's liberty. . . .
       Courts are not supposed to be commercial establishments 
     where, for the price of a lawyer, anyone can buy a chance on 
     a raffle. Courts supposedly represent the wisdom of law, 
     overseeing when those powers can be used against others in a 
     free society. There's no right to sue except as the state 
     permits.
       I can practically feel your confusion. How else can we 
     organize justice? People obviously have the ability to go to 
     court. But by what rules and standards? Our modern 
     consciousness is so focused on individual rights we can't 
     conceive of another way to ensure fairness. But if lawsuits 
     are recognized as an exercise of state power, perhaps the 
     state should make conscious judgments of who can sue for 
     what. That's what legal rules and interpretations are for.

  That is what this debate is about. That is what this legislation 
intends to do--make conscious judgments about who can sue and for what, 
and the rules and limits under which medical lawsuits can go forward.
  Is this bill a perfect bill? No. I have yet to see a perfect bill, 
and I am in my seventh year in the Senate, following 10 years in the 
Wyoming Legislature. But we ought to vote to begin this debate and move 
on to the consideration of this bill, and the amendments to the bill, 
so that we can address this medical liability crisis before it further 
compromises the liberties of the people in Wyoming and the other 
States, and especially their access to medical care.
  We are debating whether to proceed to debate, whether to proceed to 
begin the amendments which can even be whole substitutes to this bill. 
So if my colleagues have a better idea, a way to solve this, they 
should vote to proceed, then bring their amendments.
  Our Declaration of Independence speaks to our unalienable rights, as 
granted to us by our Creator, and that among these rights are life, 
liberty, and the pursuit of happiness.
  Well, it is pretty hard for an expectant mother in Wyoming to pursue 
her happiness when she has to pursue her doctor for one more well-baby 
check-up before he closes his practice and leaves for a State where 
insurance premiums are lower.
  There is another passage in Mr. Howard's book that is pertinent to 
our discussion about limits on pain-and-suffering awards. The 
statistics show that insurance premiums are lower in States with such 
limits, but I have heard Members on the other side of the aisle argue 
that the limit in this bill is too low, that it is unfair to someone 
who is severely injured, despite the fact that the bill does not limit 
in any way that person's right to recover every cent of the economic 
damages that result from that injury.
  Well, if the limit on pain-and-suffering awards in this bill is too 
low, then what is the right amount?
  I quote another passage from Mr. Howard's book, and I hope everybody 
will read at least the first chapter of this book.

       A great thing about bringing lawsuits in modern America is 
     that it is so easy to threaten the adversary's entire 
     livelihood. One stroke of the finger on the lawyer's word 
     processor, and damages go from $100,000 to $1,000,000. Three 
     more key strokes, and we're suing for a billion dollars. This 
     is fun.
       What kind of justice system is it that allows someone to 
     make up an amount of money to demand? Is that a fact to be 
     ``found'' by a jury? It doesn't even qualify as a value 
     judgment, which at least is a conclusion based on facts. 
     Damages claimed today are completely arbitrary. Just stick 
     your finger in the air and threaten someone with any number 
     that comes to mind.
       Judges treat damage claims almost as if they are property, 
     and only with greatest reluctance intercede. In 1987, five-
     year-old Gregory Strothkamp climbed up several shelves to the 
     top of the linen closet, got an unopened box of Q-Tips, and, 
     while trying to use them, punctured his eardrum. His parents 
     sued the maker of Q-Tips for, among other things, $20 million 
     in punitive damages. Whatever the merits of the argument that 
     Q-Tips should come in childproof packaging (which would raise 
     everyone's cost), most people probably agree that making Q-
     Tips is not an evil act.
       When the jury awarded young Gregory $20 million in punitive 
     damages, the judge did what was obvious from the beginning 
     and overturned the award. The claim ended sensibly, but is 
     this how justice should work? Sweating through trial and 
     verdict to get to obvious justice, while the judge is sitting 
     there the whole time, doesn't exactly instill confidence in 
     the system.
       Do judges enjoy watching the Q-Tip companies, or a Little 
     League coach, or a doctor squirm at the end of a 
     multimillion-dollar hook?

[[Page S9064]]

       Lying dormant along the side of society is another 
     important legal principle: that a person injured should be 
     ``made whole'' by damages. Traditionally, this meant out-of-
     pocket losses, like lost wages or medical bills. In an 
     unusual case, like a homemaker with no wages, claims were 
     permitted in categories not actually calculable, like ``pain 
     and suffering.'' In cases of genuine evil, punitive damages 
     were possible.
       Today, the exceptions have engulfed the rule, with all 
     kinds of side effects. Juries are regularly asked ``to assume 
     the baffling task of trying to place a monetary value on pain 
     and suffering,'' Dean Bok observed, ``although the 
     predictable result [is] to encourage a rise in litigation and 
     the growth of the most unsavory and deceptive practices.''
       Judges might concede the principle but can't imagine how to 
     apply it. They need some objective legal post to hang on to. 
     If $1.35 billion is too much, what is the right amount? The 
     ``exercise of judicial power is not legitimate,'' as one 
     scholar put it, ``if it is based on a judge's personal 
     preference rather than law.'' So what do the judges do? They 
     abdicate. Judges look up at the allegorical figure of Justice 
     and interpret her blindfold as impotence.
       But Justice is also holding balanced scales. How does 
     Justice achieve balance but through the values and wisdom of 
     judges? Proportion is critical to justice. Equals should be 
     treated alike, Aristotle believed, and unequals 
     proportionally to their relative differences: ``the unjust is 
     what violates the proportion.'' These distinctions, Aristotle 
     observed, can only be made with human wisdom.
       Dead people can be so smart. ``[T]o speak somewhat 
     paradoxically,'' Cardozo observed, there are times ``when 
     nothing less than a subjective measure will satisfy an 
     objective standard.'' Justice Potter Stewart had it right 
     after all. Judges have to know it when they see it. One 
     billion dollars for a wrongful dismissal case is absurd. 
     Everyone knows it. The case should be dismissed unless the 
     plaintiff comes back with some amount he can plausibly 
     justify.
       I wonder if judges ever ask themselves why it is that 
     damage claims have escalated to a level where they are like a 
     parody of a dysfunctional system of justice. The answer 
     couldn't be more obvious. Judges sit on their hands and 
     tolerate claims that make lotteries seem like small change. 
     The reason people bring huge claims is not hard to divine: 
     It's a form of extortion. Why else sue for such ridiculous 
     amounts? Being sued for, say, $5 million for a regular 
     accident may not cause you to fold your hand, but the 
     possibility of ruin never strays far from your consciousness. 
     Most million-dollar claims end up settling for thousands or 
     less. But not all. All that it takes is for a jury to get 
     mad. . . .

  The point I am making is that there is an imbalance. I think that 
everybody recognizes there is an imbalance. We want to have a just 
system. What we need to do is approve this cloture petition, end the 
debate of whether to proceed to the debate, and bring in substitute 
bills. And I have heard of some pretty good ones floating around. We 
can debate the issue and come up with something that will make doctors 
still accessible in States such as Nevada and Wyoming and the other 
ones that we have had on the chart of states in crisis. There are only 
about five that are not in crisis. Then there are varying degrees of 
crisis among the rest of them.
  The problem we are facing today is that multimillion-dollar awards 
for pain and suffering are contributing to dramatic increases for 
insurance premiums for doctors. When this forces doctors to leave their 
practices, it hurts innocent patients who lose their access to medical 
care. Do we not have an obligation to say enough is enough, and set 
some limits on lawsuits?
  As Mr. Howard points out in his book, if lawsuits are an exercise of 
State power, perhaps the State should make conscious judgments of who 
can sue for what.
  When I spoke on this bill yesterday, I said the current medical 
liability crisis and the shortcomings of our medical litigation system 
make it clear it is time for a major change. I also said that 
regardless of how we vote on this legislation, we ought to start 
working toward replacing the current medical tort litigation scheme 
with a more reliable and predictable and faster system of medical 
justice.
  I have heard Members on the other side of the aisle say they want to 
work with Republicans to find a better way to solve this problem, to 
find reasonable good-faith alternatives to this legislation. If we vote 
not to proceed on this bill, I hope this process will begin sooner 
rather than later. I hope we proceed so Members can bring their ideas 
out and suggest amendments; then we can vote up or down. The people of 
Wyoming and other States in crisis cannot afford to lose any more 
doctors. We cannot afford to lose any more time.
  If we do not proceed on this bill today, I pledge to continue working 
to find solutions to this million-dollar liability crisis. I hope 
Members on both sides of the aisle will also take this pledge to keep 
working on this.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Graham of South Carolina). The Senator 
from the State of New York.


                      Nomination of Victor Wolski

  Mr. SCHUMER. Mr. President, I will talk today about the nomination of 
Victor Wolski to the Court of Federal Claims. This nomination 
admittedly has not gotten much attention from our colleagues because 
the Court of Federal Claims does not handle the breadth or the number 
of cases that the courts of appeals do or even Federal district courts.

  However, I remind my colleagues that in one area these courts are 
extremely important--they are important in many areas, but in one area 
where we have our usual ideological discussions and battles, the area 
of the environment. The Court of Federal Claims is the place where 
claims of takings reside. Takings have been the way many have opposed 
the advances we have made in the environment. They make their arguments 
this is a government taking from you your right to use your property as 
you see fit.
  When the Government says you cannot pollute the water on the land you 
own or you cannot pollute the air on the land above which you own, some 
have come up with the theory that the Government is taking something 
from you. It is sort of denying the theory of compact that we all live 
together and we all have to be responsible for our land and our water.
  I argue that the vast majority of Americans do not agree with this 
argument. However, there is a small group of people who tend to be 
propertied, tend to be quite well off in society, who are very much for 
this argument.
  The nominee to the Court of Federal Claims, Victor Wolski, if we 
nominate him, if we approve him, we are approving somebody who has led 
the charge in this area--not somebody who sees some merit to the taking 
argument and sees the other side but somebody who is a committed 
ideologue, not somebody who would have the balance we need on the 
courts.

  If anyone does not believe me, I take Mr. Wolski's own words to the 
National Journal:

       Every single job that I have taken since college has been 
     ideologically oriented trying to further my principles.

  He then goes on to describe his principles as ``a libertarian belief 
in property rights and limited government.''
  This man is a self-described ideologue. I thought we had been making 
some progress in this body, that while some would propose more 
conservative nominees and some would propose more liberal nominees, 
that it was a bad idea to put ideologues on the bench, ideologues of 
the left or the right.
  Mr. Wolski is clearly an ideologue and does not belong on this 
sensitive court. For that reason, he is opposed by 13 national 
environmental groups. When he was counsel for the Pacific Legal 
Foundation, Mr. Wolski consistently furthered his ideology through 
sweeping arguments that would have dramatically undermined the Nation's 
environmental laws.
  My guess is he preferred an America of the 1890s or the 1930s where 
our air was much dirtier, our water was much filthier. Whether you are 
a Democrat or Republican, if you believe at all in preserving the 
environment, it would seem to me it would make a good deal of sense not 
to further this nomination. We can find people who might be more 
consistent with the President's views, with many views on the other 
side in terms of not extending environmental laws or making sure that 
the excesses of environmental laws are limited. Mr. Wolski is just not 
that. He is so committed to this ideological view that the Government 
has virtually no right to tell you you cannot pollute the air or the 
water, that if he had his way, we would turn the clock back 
dramatically in the environmental area. As a result, as I mentioned, 13 
national environmental groups oppose his nomination.
  In addition, a broad coalition of groups, civil rights, women's 
rights,

[[Page S9065]]

human rights organizations, including the Leadership Conference on 
Civil Rights, the National Fair Housing Alliance, and the National 
Women's Law Center have expressed serious concerns with Wolski's 
``extreme views on governmental power and his troubling record in race 
and sex discrimination cases.''
  Admittedly, this court does not handle race and sex discrimination 
cases, but it does handle the takings cases that relate to our 
environment.
  In addition, I argue to my colleagues, Mr. Wolski does not really 
have the judicial temperament to be a Federal judge. He argued a case 
where there were ponds that were providing habitat for migratory birds. 
I know from my own experience that some would think every piece of 
water, every pond and every lake is a wetlands and cannot be touched, 
and sometimes the advocates, I would be the first to say, go overboard. 
However, in this case, Mr. Wolski called ponds ``puddles,'' and he 
belittled the possibility that there might be any interest in 
protecting migratory birds. ``Jurisdiction over puddles was justified 
by the Ninth Circuit on the basis that birds might frolic in these 
puddles.''
  He wrote:

       Will one fewer puddle for the birds to bathe in have some 
     impact on the market for these birds?

  In the argument he is making--I don't know, the facts of the case 
might be right--the language does not show the temperament, a fair and 
balanced temperament, that we seek in nominations to the bench, whether 
they be Democrat or Republican.
  In a letter to the San Francisco Chronicle, Wolski derided what he 
called ``a rogue Congress'' and referred to the Members of Congress as 
``bums.'' Again, many of our constituents have hard words about 
Congress Members, but I don't think a lawyer, a trained advocate, ought 
to be using that kind of language. Again, it shows the kind of 
temperament Mr. Wolski has.
  On the merits of his views, he is way over to the extreme. On his 
judicial temperament he has used incendiary language that is 
inappropriate for a lawyer or a judge. Mr. Wolski should not be put on 
the bench.
  I make one other argument in this regard. The Federal Court of Claims 
has some vacancies. It has 16 slots. It now has 13 senior judges in 
addition to the 11 regular judges. This court does not have much of a 
caseload. The average number of cases the United States District Court 
judge handles is 355 cases; the number of cases a current judge of the 
Court of Federal Claims handles is 24. If we add the new nominees, each 
will handle 19 cases.

  Let's say you don't agree with Chuck Schumer on the environment. 
Let's say you even agree with Victor Wolski, but you are a fiscal 
conservative. Why are we adding more judges to a bench that does not 
need any help?
  The Washington Post editorial--and, as you know, the Washington Post 
on the issue of judges has not agreed with many of us on this side--
called the CFC:

       . . . a court of extravagance and an unnecessary waste of 
     judicial resources that should be abolished.

  Each of these judges costs a million dollars. I would say to my 
colleagues, those on the other side of the aisle did not allow nominees 
to the Court of Federal Claims when President Clinton was in office 
because, they said, the caseload was too low. Today the caseload is 
even lower, and there is a rush to nominate. This should not be 
dispositive.
  If Wolski were a good man, if the caseload were growing, I would 
support him no matter what was done between 1995 and 2000. But I have 
to tell my colleagues on the other side, it is extremely galling to us 
that the very arguments that have been used in the past now seem 
irrelevant, now that there is a new President making different 
appointments. If the Court of Federal Claims should not have had 
appointees under the Clinton administration and the Republican-
controlled Senate did not allow any because the caseload was too low--
24--why are we now nominating 4 and bringing the caseload down to 19? 
It is just not right. It is not fair. There ought to be some 
consistency to the argument. There is not. There absolutely is not.
  So for these grounds, I urge Mr. Wolski's defeat. No. 1, he is a good 
man--he may be a good man, I don't know him personally, but when I said 
``a good man'' before, I did not mean in terms of his views for this 
court. He is an extremist. By his own words, he is an ideologue. He 
does not believe in the progress we have made on the environment.
  If the President wishes, as our great process unfolds, to nominate 
somebody who would cut back a little bit on the environmental laws, or 
not make decisions that move them forward, that is a fair and 
legitimate argument. To nominate an ideologue--a self-admitted 
ideologue who has made it his career to say that anytime the Clean 
Water Act or Clean Air Act has effect, it often means it is a taking--
is really not what the American people want. My guess is maybe half of 
the people on this side of the aisle, on the Republican side of the 
aisle, do not agree with these views at all--in terms of their voting 
record.
  His temperament is poor. He uses inflammatory and derogatory 
language. That makes sense, in a certain sense--that when you nominate 
ideologues, they are not dispassionate. They are not going to interpret 
the law, which is what the Founding Fathers wanted; they are going to 
make law. I have rejected nominees from the left in my own judicial 
panel because they are ideologues, too, and they want to make law. We 
want judges to interpret the law. Those far right and those far left 
tend to want to make law. On temperament and ideological grounds, he is 
not the right man for the job.
  One other argument to boot. Even if you think he is the right person 
for the job--and I argue, I plead with you to think otherwise--this 
court has no caseload. This court could handle many more cases without 
an additional new judge. This is a total boondoggle. This is a waste of 
the taxpayers' money. If it was right that this court did not have the 
caseload under the Clinton administration so we would fill the 
vacancies, with the caseload even lower today, why are we doing that?
  I respectfully urge my colleagues to vote no on Victor Wolski.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 12 minutes.
  Mr. SCHUMER. I yield the remainder of my time to my colleague, the 
Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, how much time is remaining for each side 
for debate before the vote?
  The PRESIDING OFFICER. There remain 34 minutes on the Democratic 
side; 19 minutes remain on the majority side. The order indicates the 
Democratic leader will be recognized at 11:10.
  Mr. SCHUMER. Mr. President, before my colleague speaks, I didn't 
realize when I yielded all the time, there was at least one other of my 
colleagues who wanted to speak on Mr. Wolski. Could we, if he should 
come, just leave 5 minutes to continue the debate? I just reserve 5 
minutes of the time to discuss the Wolski nomination, and I will yield 
the remainder--whatever is left after reserving those 5 minutes--to my 
colleague who I know wants to speak on both issues.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. I hope I understand what just happened. I have 29 minutes 
remaining? Is that mistaken? Five minutes will be given to some 
Democrat to speak on the Wolski nomination, and then the remaining 13 
minutes, is that correct, are on the Republican side, majority side?
  The PRESIDING OFFICER. There are 19 minutes remaining on the 
Republican side.
  Mr. DURBIN. I think I have it, or at least close to it.
  Thank you, Mr. President, for your cooperation and I thank my 
colleague from New York for yielding this time.
  In the last 2 days we have been engaged in a debate on the floor 
which affects every American family and business, and the question is, 
What are we going to do about the dramatic increase in the cost of 
medical malpractice insurance that we see among some specialties in 
some parts of the country? It doesn't affect every State. It doesn't 
affect every doctor. But those doctors who are hardest hit, I believe--
and I think everyone here shares that belief--need relief. They need 
some help.
  What do we have offered to us today? S. 11. This is the bill brought 
to us by

[[Page S9066]]

the Senator from Nevada, Mr. Ensign, and Senator McConnell and a number 
of other Republican Senators. This suggests that the best way to limit 
the medical malpractice premiums being charged to doctors is to limit 
the amount of recovery that a person who has been a victim of medical 
malpractice can receive. It is a decision which says we will no longer 
trust a jury of 12 people from your community, your city, and your 
State to decide what is fair compensation for your injury caused by 
another person. That decision will be made by a jury of 100 Senators, 
who will decide today, with S. 11, that regardless of what has happened 
to you or your child, regardless of the severity of the injury, 
regardless of how many years you are going to go through constant pain 
or suffering, we will decide today, in the Senate, that if your State 
has not come up with another number, the maximum amount you can receive 
is $250,000 for pain and suffering.
  Some may say that is a pretty substantial sum of money. I have heard 
that said on the floor here. How can the critics of this bill be coming 
to you and saying $250,000 is not that much money?
  I concede, if you bought a lottery ticket today and were paid 
$250,000 tomorrow, you would be a happy person. But if you had a 
medical injury today which incapacitated you for the rest of your life, 
which left you in a wheelchair, quadriplegic for the rest of your life, 
which left you in a state dependent on others for the rest of your 
life, which left you permanently scarred and disfigured for the rest of 
your life, and you were told that your compensation was $250,000, I 
think it would put it in a much different perspective.
  I think that is what is missing in this debate. I cannot get over how 
Senators come to this floor and dismiss all of these victims of medical 
malpractice and say, basically: It is a shame, but they just don't get 
it. We have a bigger problem here. We have a malpractice insurance 
problem.
  I have listened to the debate. I have listened to those who suggest 
that this bill, S. 11, is the answer to the problem. I say it isn't. 
The problem is national. The problem is serious. The problem will not 
be answered by this legislation.
  There is a belief that if you limit the amount that a victim can 
recover malpractice insurance premiums will go down. Let me tell you 
that facts don't bear that out.
  Take a look at these States. Some of them have State laws that cap 
liability. Others don't. Of the States without caps where a victim of 
malpractice can receive whatever a jury thinks is fair in the period 
1991-2002, four of those--Arizona, New York, Georgia, and Washington--
saw modest increases in malpractice insurance premiums. Here are four 
States with caps on what a victim can receive. The malpractice 
insurance premiums have shot up dramatically. There is no direct link 
between limiting a victim's recovery and the malpractice insurance 
premiums that are charged. Yesterday, Senator Ensign of Nevada, I think 
in a very candid moment, conceded that fact. He brought out a chart. He 
said you can't compare States with caps that have only been in place 
for a short time. In the words of Senator Ensign, as the Congressional 
Record reflects, it will take 8, 10, 12, or maybe 15 years before these 
caps on victims in terms of what they can recover for their serious 
injuries really do have a measurable impact on malpractice insurance 
premiums.
  I would say to the doctors in Illinois and in Nevada and in any State 
in the Union, is this a reasonable answer to today's malpractice 
insurance crisis to suggest that limiting a victim's recovery will 
ultimately reduce malpractice insurance premiums 8, 10, 12, or 15 years 
from now? Trust me. In some of these specialties, OB/GYN and 
neurosurgery, these doctors can't wait for that period of time. Sadly, 
even if you bought the premise of this bill that limiting a victim's 
recovery will help a doctor's malpractice premiums, the sponsor of the 
bill came to the floor yesterday and conceded that it won't happen for 
8 to 15 years.
  Where does that leave us? It leaves us in a situation where we have a 
bill that is fundamentally unfair to the victims of medical malpractice 
premiums.
  I listened to the rhetoric on the other side. I have been a 
practicing attorney, a trial lawyer, both a defense attorney and a 
plaintiff's attorney. I guess I understand that my profession has been 
the butt of a lot of jokes and a lot of derision. I have heard Members 
come to the floor and talk about those greedy lawyers. I will have to 
tell you that there are an awful lot of men and women practicing law 
across the United States who I think are doing a service to their 
clients and to America. They have people come into their law offices 
who are seriously hurt or who have lost a loved one and who have no 
money to their name and are looking for justice. They want an 
opportunity to go to court. They can't pay for it. They can't pay for 
an attorney on an hourly basis and be charged $10,000, $20,000, 
$30,000, or $40,000 for their day in court. Some of them can't even pay 
the court costs or the filing fees or the necessary expenses for a 
deposition asking questions preparing for a lawsuit.
  Lawyers who represent these people say: I will take it on a 
contingent basis. If you succeed, if you win, I will be paid. If you do 
not succeed, if you lose, I will lose with you. That will be the gamble 
we will take together. We believe we have a good lawsuit. Let us go 
forward. Some of these lawyers say on a personal basis this is what my 
recovery will be.

  I don't think there is anything unfair or insidious about this any 
more than it is unfair or insidious that those who are defending the 
person accused of wrongdoing are generally represented by insurance 
company lawyers who pay unlimited amounts of money for the defense of a 
lawsuit. That is just the nature of our judicial system.
  On this floor the people who take contingency fee cases are referred 
to as greedy and selfish, exploiting the plaintiff, exploiting the 
claimant, and exploiting the victims. I am sure it has happened. I am 
sure it will continue to happen--I hope in as few cases as possible.
  There is nothing unfair or unjust about a contingency fee system. In 
fact, it gives people an opening in the court they would never be able 
to afford. I have seen it. I represented people under those 
circumstances. I have run that risk. Sometimes I didn't succeed for the 
client or myself. Sometimes I did. That is the nature of the system.
  Then a Senator came to the floor yesterday. He is a friend of mine. I 
respect him. But he used a term which troubles me greatly. He said he 
wants to end this ``jackpot justice.'' That was his phrase--``jackpot 
justice.'' I guess the idea is that if someone goes into a courtroom 
with a flimsy case and ends up with millions of dollars, hit the 
jackpot. I guess that can happen, too. Maybe it has.
  But I want to talk to you a little bit about ``jackpot justice'' in 
the world of medical malpractice. I would like to point, as exhibit No. 
1, to Alan Cronin, a 42-year-old man from the State of California. Alan 
Cronin is a man who has three children. He went in for a simple surgery 
of a hernia repair. After the surgery, two doctors failed to diagnose 
an acute infection. They treated him as if he had the flu. But he had a 
very serious infection instead. He became septic and suffered toxic 
shock. Once the doctors realized that, and they had to reopen the 
surgery site where they repaired the hernia. They found a horrendous 
infection underway. They told his family that he had a 98-percent 
chance of dying as a result of this infection. Gangrene had set in. As 
a consequence of a simple hernia operation and the malpractice that 
occurred afterwards, this gangrene claimed all four of Alan Cronin's 
limbs--both of his legs, both of his arms.
  He used to be a customer service representative for a medical 
equipment manufacturer and workers compensation paid for all of his 
medical expenses, including some of his future expenses. He also had a 
private disability policy that he used to help keep his family 
together, offsetting future damages.
  The reason this case is important is I guess there are some in the 
Chamber who would say if Alan Cronin goes to a courtroom and asks the 
jury for a verdict against the doctor who made the mistake which led to 
his infection, which led to gangrene and which led to this man losing 
both arms and both legs and asks for a verdict against that

[[Page S9067]]

negligent doctor and he is given several million dollars to try to keep 
his family and life together for the rest of his natural life, in the 
words of some of my colleagues, Alan Cronin would ``hit the jackpot.''
  What a jackpot--several million dollars for both arms and both legs? 
How many volunteers would sign up for that jackpot? How many people 
want to buy a ticket on that jackpot lottery? None of us would. None of 
us would ever trade places with what this man has gone through and will 
go through every minute of every hour of every day of every week of 
every month and every year for the rest of his life. This is a jackpot?

  You should have been in the room yesterday when Senator Graham and I 
met four victims of medical malpractice who came in to see us.
  Colin Gouley, a young man from Nebraska, came to us. As a result of 
medical malpractice, when he was born he had serious problems and 
disabilities and is going to be confined to a wheelchair. He must sleep 
at night with a cast. He has a limited ability to respond and learn and 
speak. He won't go through the ordinary human events of experiences 
that we take for granted.
  He has a twin brother. This is a picture of Colin and his twin 
brother Conner. You can see Colin on the left and his twin brother, who 
is healthy, happy, and an active young man. That will be the fate and 
future for Colin.
  They took the case to a jury in Nebraska and said for the rest of his 
life and with all of the pain and suffering that he will endure, what 
is it worth? That jury said: We calculate it to be about $5.6 million. 
But because of Nebraska's State law that limits the amount that can be 
awarded in cases of medical malpractice, the family will receive a 
fraction of that amount. It will mean that his mother and father and 
his two sisters and brother will be tending to his care for the rest of 
his life, as they would naturally, but they will have to do it much 
more because of his situation. It also means that ultimately the 
doctors and hospital that may have been responsible for this wrongdoing 
will not be held accountable but it will be the responsibility of the 
government to pay more and more of his medical expenses. That is not 
what the family wants, but look at the situation they face.

  Do you believe the Gouley family hit the jackpot? This is jackpot 
justice? I can tell you what this bill would say. If your State does 
not have a limitation on recovery, this bill would say to Colin Gouley 
and his family: We are sorry this happened to you, we are sorry you 
were a victim of malpractice, but the pain and suffering you will 
endure for the rest of your natural life is worth $250,000. The verdict 
rendered by the jury of the Senate is $250,000 and not one penny more.
  That isn't fair to the Gouley family, but, frankly, that is our idea 
of how to deal with the medical malpractice insurance crisis. At least 
that is what has been proposed.
  We have to put a human face on this issue. We have to make sure 
people understand it isn't just doctors who face malpractice premiums, 
it isn't just people who are looking for care but cannot find it 
because doctors cannot practice in some areas because it is more 
expensive. The solution being offered by the Senator from Nevada and 
others is to limit the recovery of medical malpractice victims and 
their families, to limit the amount of money that would be paid to 
children who are the victims of medical malpractice.
  There is no argument here about who is at fault. The fault was 
established by the jury. But this bill would say: The Federal 
Government will decide how much the Gouley family can receive. The 
Federal Government will decide how much Alan Cronin will receive for 
pain and suffering in those States that do not have a different 
limitation.
  I guess what troubles me, too, is this bill does not go to the root 
issue that is before us. We were told by this administration, the Bush 
administration, through Dr. Clancy of the Department of Health and 
Human Services, that medical errors and medical malpractice have 
reached epidemic proportions in this country. Instead of dealing with 
medical malpractice at an epidemic proportion, what we are saying is 
the real way to control this problem is to make sure Colin Gouley and 
his family are not adequately compensated for the injuries and damages 
they have suffered.
  That is so shortsighted and it is so fundamentally unfair.
  If these malpractice premiums are unfair to doctors, I can tell you 
S. 11 is fundamentally unfair to Colin Gouley and his family and people 
like them across America.
  Mr. President, 100,000 Americans will lose their lives this year 
because of medical malpractice, not because of their disease or illness 
but because of mistakes that are made--100,000 people. And that figure 
comes from the Bush administration Department of Health and Human 
Services.
  Of those who could file a malpractice claim in any given year, 1 out 
of 50 actually do go to a lawyer and seek compensation; 2 percent, 1 
out of 50. If we do not go to the root cause of this problem, this bow 
wave of malpractice that is about to swamp us in this country, then, 
frankly, we are not addressing the root problem. Instead, what we are 
doing is penalizing the Gouley family and others like them and 
rewarding insurance companies.
  Do not be surprised by that. We do that on a weekly basis in the 
Senate. We find ways to take a special interest group, such as 
insurance companies, and give them more profitability, less 
accountability, whether it is HMOs, which, incidentally, are protected 
and rewarded by this same bill, or other insurance companies. That is 
the nature of the philosophy that drives the majority opinion in the 
Senate.

  But families across America see it differently, and they should. This 
law we are considering, S. 11, unfairly is going to insulate from 
liability HMO insurance companies, managed care insurance companies, as 
well as drug companies and medical device manufacturers.
  One last point I would like to make at this moment is they have a 
provision in this bill which says if your drug, for example, or medical 
device has been approved by the Food and Drug Administration, it 
virtually insulates you from liability for punitive damages. I asked my 
staff to prepare a list of the various drugs that have been marketed 
which have been found to be dangerous and deadly to people across 
America. Frankly, there are too many for me to list in the record at 
this point. I will submit them at a later time.
  Why in the world would we want to put in this bill an insulation for 
those who make medical devices which end up killing people? Why in the 
world, in a bill that is supposed to be helping struggling doctors, are 
we talking about insulating from liability pharmaceutical companies 
that sell dangerous drugs?
  Oh, the argument is, if it is approved by the FDA, that should be 
enough. We know better. Those of us who have been involved on Capitol 
Hill know we do not fund the Food and Drug Administration adequately. 
There are not enough people there doing the important work that should 
be done. We know they do their best, and we know that 9 times out of 
10, maybe 99 times out of 100, they are going to make certain drugs are 
safe and efficacious, but we also know quite well that there are not 
enough people there doing the job that needs to be done.
  Much like the tobacco companies hid behind the warning label on their 
packages when they were sued for cancer and heart disease, these drug 
companies, under S. 11, want to hide behind an FDA approval and say: We 
can't be held accountable for what we might have known or what we might 
have done if, in fact, somewhere along the way the FDA gave us a stamp 
of approval. That should insulate us from liability.
  Think about what we are doing here, and think, for a moment, about 
the victims. If you love the companies, if you love the insurance 
companies, couldn't you have some love in your heart for these victims, 
some compassion for what they are going to go through? I think that 
should be an important part of the debate.
  I reserve the remainder of my time, Mr. President.
  The PRESIDING OFFICER. Who yields time?
  Mr. ENSIGN. Mr. President, how much time is on each side?
  The PRESIDING OFFICER. Nineteen minutes on the majority side, 13 
minutes on the minority side.
  Mr. ENSIGN. Mr. President, I yield myself 5 minutes.

[[Page S9068]]

  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, first of all, let's make sure one thing is 
clear. What we are debating today is whether to proceed to the bill. We 
are trying to get on the bill. If people have certain problems with the 
bill, they can offer amendments, but only if they allow us to proceed 
to the bill. That is what the vote is on today, whether or not we are 
going even consider that we might address a crisis that is happening in 
the United States.
  There have been a few things that have been talked about from the 
other side of the aisle today that I would like to address. I want to 
read from a report because they have been quoting this study. The Weiss 
study, which has been referenced repeatedly by the other side of the 
aisle, supposedly took numbers from this publication called the Medical 
Liability Monitor.
  Mr. President, I ask unanimous consent that a portion of this report 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            [From the Medical Liability Monitor, Oct. 2002]

        2002 Rate Survey Finds Malpractice Premiums Are Soaring


hard market wallops physicians; average rate increases more than double 
                             those in 2001

       A nationwide survey of rates for physicians' medical 
     professional liability insurance confirms that not only has a 
     hard market for this necessary coverage arrived, but from all 
     indications, it is settling in to stay for awhile.
       For the past 12 years Medical Liability Monitor has 
     conducted an annual study of malpractice insurance rates. 
     Reports come in from carriers in all 50 states who represent 
     approximately 65% to 70% of the entire market. This year, 
     that percentage may be even larger, now that former insureds 
     of St. Paul and other companies who have quit the business 
     must obtain replacement coverage and are moving to carriers 
     remaining in the traditional market when possible.
       For many physicians, whose incomes are held down by rigid 
     government and health plan reimbursement schedules, coming up 
     with funds to pay fast-rising insurance costs poses real 
     problems. Here is a closer look at how malpractice insurance 
     rates have risen in many places in the past year.
       The chart below shows that the average cost of malpractice 
     insurance for internists rose by 24.7% from July 1, 2001 to 
     July 1, 2002. In 2001 the percent of increase was 10.1%. 
     General surgeons' rates went up similarly, increasing by an 
     average 25% in 2002 from 10.3% in 2001. The average increase 
     in rates for obstetricians/gynecologists climbed from 9.2% 
     last year to 19.6% this year.
       For internists and general surgeons the average percent of 
     increase in the 12-month 2001-2002 period was a staggering 
     145% and 143%. Increases for OB/Gyns, whose rates typically 
     are much higher than those of their internal medicine and 
     surgical colleagues, went up on average by 113%.
       The effects of the rate increases were uneven, falling most 
     heavily in certain states and metropolitan areas, like New 
     York, Chicago, Detroit, Cleveland and Miami. Unlikely spots 
     for exploding premiums were Las Vegas, West Virginia, and the 
     Rio Grande Valley in Texas. Even though there were rate hikes 
     in most states, they sometimes were more modest. Two states, 
     Alabama and Alaska, had no increases at all. Insurers in 
     several states raised rates only modestly. There were even a 
     few, but very few, downward adjustments in rates for certain 
     specialists in specific territories in a handful of states. 
     One company in Alabama cut rates for general surgeons by 6%. 
     A company in California pared rates for internists in certain 
     areas by 4% and 7% and for obstetricians in other areas by 1% 
     and 3%. An Illinois company lowered rates for general 
     surgeons, except in Cook and two other counties by 4% to 
     8.6%. There were some modest reductions for certain type of 
     physicians in two or three other states, but these were by 
     far the exceptions, not the rule.
       The size of increases in some areas in which malpractice 
     problems with claims and claims severity have exploded was 
     mind-boggling. Increases of 40%, 50%, 60%, 80% were not 
     uncommon. In Arkansas one carrier boosted rates by 90.1% to 
     112.7%.


                basement to through-the-roof variations

       The differences in premiums for specialists in various 
     states and areas are widespread. Base rates for internists in 
     South Dakota provided by one insurer, were $2,906, while the 
     highest rate reported for these physicians was $56,154 in 
     Dade County, Miami.
       The extremes in base rates for general surgeons are even 
     greater. In Minnesota one company's manual rate was $8,717, 
     but in Miami the highest number quoted by a carrier for this 
     specialty was $174,268. The wide swings were also typical for 
     OB/Gyns. One company's rate for these physicians was $13,317 
     in South Dakota, but once again, the highest rate was 
     $210,576 in Miami.

  Mr. ENSIGN. Mr. President, the editor of this report has basically 
said the Weiss study they quote is completely misusing their numbers. I 
refer you to a portion of the report entitled ``Survey Finds Wide 
Swings in Premiums'' because my colleagues on the other side of the 
aisle state that there have not been these wide swings in premiums. The 
report says:

       The size of increases in some areas in which malpractice 
     problems with claims and claims severity have exploded was 
     mind-boggling. Increases of 40 percent, 50 percent, 60 
     percent, 80 percent were not uncommon. In Arkansas one 
     carrier boosted rates by 90.1 percent to 112.7 percent.

  Notice what it said here. It said, ``malpractice problems with claims 
and claims severity have exploded.'' The premium increases have been 
``mind-boggling.''
  The Senator from Illinois has put up pictures of victims of 
malpractice. I want to show a picture of one of the victims, because 
there are victims on both sides of this issue.
  Picture this gentleman shown here.
  This was a gentleman, Mr. Lawson, who was visiting the city in which 
I live, Las Vegas, Nevada with his family. Unfortunately, the time they 
visited was the week the trauma center closed because of the crisis we 
have in the State of Nevada. The trauma center closed, and this 
gentleman, unfortunately, could not get care. In this picture he looks 
healthy. Unfortunately, he is no longer with us.
  There are a lot of people the other side have shown as victims. Those 
people, if we do not do something, will not even have doctors to go to 
because doctors are leaving the profession, and new doctors are not 
coming in to replace them.
  We have a crisis in this country in 19 States. All but six States are 
showing serious problems. The Senator from Illinois quoted my words 
yesterday, that it takes years to find out whether legislation in the 
States that have enacted reform will be effective. The reason for that 
isn't that they aren't necessarily good pieces of legislation, it is 
that they are being challenged in court and then appealed and appealed 
and appealed. A lot of the State courts are striking down these laws, 
because of some technicality in their constitution or a particular 
problem in their piece of legislation. Because of that, there is 
uncertainty even when States pass legislation if this crisis will 
remain out of control. The insurance companies don't know whether the 
laws are going to be upheld, so they can't lower rates because they may 
end up with a huge liability down the road if the law is struck down. 
That is the problem.
  We must act now while we still have some time. How bad does the 
situation have to get in the future? I would love to add into this 
bill, as we did with campaign finance reform legislation in the year 
2001, an expeditious judiciary review of the law so that we can find 
out whether it is going to be held constitutional or not. But we can't 
do any of that because the other side of the aisle will not even allow 
us to proceed to the bill. We can't debate the legislation and we can't 
offer any amendments unless we can at least agree to proceed to the 
bill.
  If the opponents don't like the legislation, if they think there are 
ways to fix it, they should allow us to at least proceed to the bill so 
that we can have amendments offered, have a full debate, bring out all 
the pictures of the victims you want to bring out, amend the bill, and 
come up with legislation that is going to actually fix the problem in 
the United States. It really is a crisis and you can be sure that 
debating on the motion to proceed, and not agreeing to take up the bill 
will not fix the problem.
  I wish to again illustrate the differences in the premiums across the 
country by the use of this chart. In white are the two States with 
cities represented that have had medical liability reforms in place for 
some time.
  I yield myself an additional minute.
  The ones in gray have not.
  Let's go to obstetrics and gynecology. Los Angeles, CA, the bill 
before us today mirrors the law they have there. There is a $54,000 
medical liability premium in Los Angeles. In Denver, where they have 
had it since 1988, it is $30,000. New York, Las Vegas, Chicago, Miami 
are much higher: $89,000, $108,000, $102,000, over $200,000 in Miami. 
That illustrates the difference in the premiums in States that don't 
have the reform. These numbers are continuing

[[Page S9069]]

to go up at a rapid rate. The numbers reflected here are actually a 
couple years old, and they are continuing to skyrocket in States 
without reform. That is why we need to act. It is a national priority, 
and we must act now.
  I reserve the remainder of our time.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. I yield myself 5 minutes.
  My question is, Why do we need to consider a bill of this magnitude 
without taking it through the ordinary committee process? The Senator 
from Nevada said yesterday, we just know we would never get it out of 
committee. I am a little bit surprised at that because, if I am not 
mistaken, it is the party of the Senator from Nevada that is the 
majority in every committee that would consider this bill. If they are 
truly looking for a bill that is fair and one that compromises where 
necessary and negotiates a good-faith outcome, then it would come out 
of committee. And certainly with the direction of the majority leader, 
Senator Frist, who has spoken in favor of it, there would be an urgency 
to it.
  That is not the way this bill is being considered. This bill is 
coming to the floor without committee hearing. They haven't had a 
chance to hear the witnesses, not the four malpractice victims and 
their families we met yesterday, not the doctors on both sides of the 
issue, not the practicing attorneys, not representatives of the 
insurance companies, none of them, no hearings from them, no statements 
from them, no suggestions from them. I don't know where this bill came 
from.
  I can tell you the people who want it: Not only the American Medical 
Association but clearly those who represent HMOs and managed care 
companies that are insulated from liability under this bill, those who 
represent prescription drug companies that are insulated from liability 
under the bill, as well as medical device manufacturers. They put this 
bill together.
  Mr. ENSIGN. Will the Senator yield for a question?
  Mr. DURBIN. On the Senator's time I am happy to yield.
  Mr. ENSIGN. Is the Senator aware, last year, when his party was in 
control, 115 bills bypassed the committee process, including the 
economic growth package, No Child Left Behind, the Patients' Bill of 
Rights, a Medicare prescription drug bill, the energy bill, and the 
Trade Promotion Act? All were brought directly to the floor and 
bypassed the committee process. Is the Senator aware his party did 
that?
  Mr. DURBIN. I am aware of that. I also have quotes from Republican 
Senators who screamed in outrage every time that happened.
  S. 11 is too important for us to consider without deliberation. It is 
too important for us to ignore that this bill is an historic precedent. 
It will take away from States across America the power they have had 
from the beginning of this Republic to establish standards for 
procedure and recovery in civil lawsuits.
  That is something that, honestly, we do very rarely around here. If 
we do it, if we consider it, as we are right now, for example, on the 
asbestos issue, it is with a long and deliberative process. Not so when 
it comes to medical malpractice. This is being brought to the floor on 
a take-it-or-leave-it basis. When you say take it or leave it, I hope 
my colleagues will leave it because the thought that we would limit 
recovery to $250,000 for pain and suffering for every case defies 
logic, common sense, and compassion. If you are looking for 
compassionate conservatives, you won't find them in those supporting 
this bill.
  Let me give one illustration. This poor lady is from the city of 
Chicago. She had two moles on the side of her face. She went to an 
outstanding hospital to have the moles removed. She is about 50 years 
of age. During the course of the simple surgery, she was receiving 
oxygen. They were using a cauterizing gun, which you are not supposed 
to do. As a consequence, there was an explosion with the oxygen. Her 
face was literally burned off because of the fire which happened.

  Her nose was so burned and scarred, she went through several 
successive surgeries and, even after those surgeries, has to rely on 
oxygen tubes to breathe 23 hours a day. It is anticipated she will go 
through more surgeries to deal with the scarring and disfigurement and 
problems she has had. She is in her fifties. She went in for simple 
surgery. She came out disfigured for life.
  According to this bill, the hospital and doctor responsible for it 
should both come together and pay her medical bills. I certainly hope 
so. If she bought health insurance to cover her own medical bills, that 
would be brought up in the courtroom, so that the jury might not 
believe she receives quite as much money because her payment of health 
insurance, frankly, would be used against her. She would receive lost 
wages for time off the job. That is reasonable. But when it comes to 
the pain and suffering she will endure and has endured from the moment 
this occurred until the day she dies, the jury of the Senate has 
reached a verdict through this bill: She is entitled to recover not one 
penny more than $250,000 for a lifetime of disfigurement.
  She wrote an article in the Chicago Sun-Times and said: How many of 
you would trade what I went through for $250,000? The answer, 
obviously, is no one. No one would.
  For those who come before us today and say this is the only way we 
can deal with the medical malpractice insurance crisis is to ignore 
what happened to this woman who went in for routine surgery and saw her 
life tragically changed. That is what is wrong with the bill.
  What we need to do is to be honest about addressing malpractice. I 
have not heard one word from the other side of the aisle on how we can 
reduce medical errors. What can we do about HMO insurance companies 
making medical decisions when in fact doctors know better? It is 
happening. This bill does nothing about that.
  What can we do about the nursing shortage which accounts for 20 
percent of the deaths in hospitals each year for malpractice? Nurses 
overworked. They can't keep up with the caseload, the patients coming. 
This bill does nothing about that.
  The PRESIDING OFFICER. The Senator has consumed 5 minutes.
  Mr. DURBIN. I yield myself an additional 1 minute.
  This legislation addresses the issue from one perspective only. To 
deny to this person and other victims an opportunity for their day in 
court, to say we don't trust a jury in America, in any State in the 
Union, to make a decision on the death penalty in a criminal case, or 
we cannot trust a jury in Chicago to make a decision on what she is 
entitled to receive because of the injuries she endured in that one 
tragic moment in the hospital, that just defies logic.

  It says to me that this bill is being brought to us by insurance 
companies, by drug companies, by HMOs, by medical device manufacturers, 
and it is not being brought to us with an eye toward solving a serious 
national problem of bringing down malpractice insurance rates.
  I am going to reserve the remainder of my time. When I return, I will 
talk about an alternative bill that Senator Graham of South Carolina 
and I are offering, which addresses this in a more responsible and 
timely fashion. I reserve the remainder of my time.
  Mr. ENSIGN. Mr. President, I think we have 12 minutes 20 seconds on 
our time. How much time is on theirs?
  The PRESIDING OFFICER. Six and a half.
  Mr. ENSIGN. Two Senators have just come into the Chamber. As soon as 
they are ready, I would like to yield them 10 minutes and reserve 2 
minutes on our side and we can close up. At 11:10, the Democratic 
leader will be recognized. So I will yield 10 minutes to the Senator 
from Missouri, Mr. Bond.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, I rise to speak about the Patients First Act 
of 2003. Going to the doctor for a checkup is hard enough these days. 
You have to juggle your family and work schedules. A few of us get all 
the checkups and screenings we need, but making matters a lot worse is 
the fact that more and more doctors are closing their practices or 
limiting the services they offer. They are doing so because they cannot 
afford the increasing costs of their medical malpractice insurance, 
which they are required to carry.

[[Page S9070]]

  According to the American Medical Association, 19 States are in a 
full-blown medical liability crisis, including, regrettably, my home 
State of Missouri.
  In Missouri, physicians' average premium increases for 2002 were 61.2 
percent. This was on top of increases in 2001 of 22.4 percent. As a 
result, over 31 percent--almost one-third--of all physicians surveyed 
by the Missouri State Medical Association said they are considering 
leaving their practices altogether. Let me repeat that. Almost one in 
three physicians in Missouri are considering leaving their practices 
altogether because they simply can no longer afford to practice because 
of exorbitant medical malpractice insurance rates.

  In some cases, medical liability insurance rates are tripling in 
Missouri, forcing older doctors into retirement and younger physicians 
into other fields.
  What is the cause of that? The cause, quite frankly, is the 
unrestrained plaintiffs' legal actions asserting all kinds of 
noneconomic and economic damages, which are paid, ultimately, by the 
consumers who must compensate the doctors or lose their doctor services 
because of the rates of malpractice insurance. Those judgments go 
against doctors, and they have to be paid by insurance companies. But 
the insurance companies raise their rates and drive good and bad 
doctors out of practice.
  According to the Missouri State Medical Association, 32 insurance 
companies are licensed to write professional liability insurance for 
Missouri physicians. Currently, only three of them are willing, or 
able, to write new business. Three companies, which accounted for 
almost one-third of Missouri's markets in 2001, have left the State of 
Missouri altogether. The result: doctors who have practiced for years 
in Missouri are closing their doors, moving their practices and 
families across State lines, or limiting the care and services they 
provide. It is happening in my State and it is happening across the 
country.
  But this is not just a problem for doctors. They are well educated, 
and they can move elsewhere and resume their practice, as difficult and 
unfair as that is. The real damage and pain is being felt by the 
patients, or people who would be their patients if they had the choice. 
Look at what is happening in Kansas City, MO, for example. Twelve 
doctors at the Kansas City Women's Clinic, founded in 1953, used to 
serve women in Missouri and Kansas. Because of rising medical liability 
rates, the clinic could not find a single company that would offer them 
a single medical malpractice insurance policy that they need to keep 
their office open in Missouri. The result: On December 31, 2002, they 
closed their doors to Missouri patients. They closed their doors.
  There were over 6,600 visits a year in the Missouri office. Now women 
in Kansas City, MO, tell me that when they are expecting a child, in 
order to go in for a checkup, they have to go to Kansas--drive across 
the State line to Kansas. They either travel to Kansas to see an 
obstetrician/gynecologist or try to find a new doctor elsewhere in 
Missouri.
  In a recent letter, Dr. Anthon Heit, president of the Kansas City 
Women's Clinic, said:

       Our loyal patients from Kansas City, Missouri, and many 
     surrounding Missouri communities, lost large, well-respected 
     groups of OB/GYN physicians as a source of their maternity 
     care. This type of action is going to continue to occur in 
     the Kansas City area, and in many other specialties, if the 
     trend does not reverse.

  Sadly, that is not an isolated case. Also in Kansas City, the Midwest 
Women's Health Network suffered a 170 percent increase in the cost of 
its medical malpractice insurance. It used to pay $200,000 a year for 
liability coverage. Now it pays $543,000.
  Two Kansas City inner-city OB/GYNs, who serve low-income, high-risk 
patients, had to sell their practices to their hospital in order to 
continue to see patients in Missouri. Excessive litigation has created 
an environment that forced these two doctors--committed to serving some 
of the most vulnerable in Kansas--out of business. They are no longer 
in independent practice.

  One OB/GYN practice in Missouri is taking out a $1.5 million loan to 
pay its medical malpractice insurance for this year. That doesn't even 
cover the cost of previous actions over which they might subsequently 
be sued. Other doctors in Missouri are considering going without 
insurance for those past actions, or the ``tail'' coverage, as it is 
called, because they cannot afford the premiums.
  In Missouri, this year alone, we have already lost 33 obstetricians 
and it is only July. If this trend continues, potentially 3,564 
pregnant women in Missouri will be forced to find new physicians 
annually to provide their obstetric care--probably outside of the 
State--thus, interrupting continuity of care and long-established 
physician-patient relationships upon which so many women have come to 
rely.
  Patients cannot get the care they need. The communities are losing 
their trusted doctors. We have a health care system that is in crisis 
in Missouri.
  Mr. President, I yield such time as he may require to my friend and 
colleague from Kansas.
  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. ROBERTS. Mr. President, may I inquire as to how much time remains 
that was yielded by the Senator from Nevada to the Senator from 
Missouri.
  The PRESIDING OFFICER. Four minutes 45 seconds.
  Mr. ROBERTS. I thank the Chair.
  As his neighbor to the west, I share Senator Bond's concern for our 
health care providers and patients. But it seems that we have a ``tale 
of two cities'' between Kansas City, KS, and Kansas City, MO.
  Just across the State line, we in Kansas have problems and 
challenges. But we don't have the same severe problems Missouri doctors 
and patients are facing. That is because, in the 1980s, Kansas enacted 
sweeping medical liability reform legislation that does create a hard 
cap of $250,000 on noneconomic damages.
  By contrast, that same cap in Missouri is $557,000 and can go even 
higher under certain circumstances. As the Senator from Missouri said, 
you won't find it surprising that nonsurgical specialists in Missouri 
are now seeing very dramatic liability premium increases that have 
been, until now, limited to surgical specialties. One pulmonary 
practice's quote for traditional insurance went from $35,000 to 
$125,000 per year. Another pulmonary specialist quit practicing at 
North Kansas City Hospital because he couldn't afford the premium on 
his Missouri practice. Now, as the Senator knows, he practices in 
Kansas.
  Here is another example.
  We have learned that both neurosurgeons in Independence are moving 
out of Missouri this summer leaving eastern Jackson County with no 
neurosurgeon. There is no trauma care basically between the Kansas 
State line and Columbia, 2 hours to the east.
  According to the Kansas Medical Society, the two largest companies in 
Kansas that provide medical liability insurance, Kansas Medical Mutual 
Insurance Company and Medical Protective, had increases that were not 
nearly as excessive as the increases in Missouri. Kansas Medical 
Mutual, the largest insurer in Kansas, took rate increases of 16.2 
percent last year and 8.5 percent this year. Medical Protective took a 
13-percent increase last year.
  Premiums for the standard policy in Kansas that have been available 
for the last 15 to 20 years were actually lower in 2002 than they were 
in 1991.
  As I have stated, premiums for the standard policy in Kansas are 
actually lower than they were in 1991. I simply want to make the point 
in the short time I have that we have a tale of two cities. We have a 
Kansas law in which we have 15 percent more doctors in Kansas than in 
the past. Their premiums are not excessive. People are leaving Kansas 
City, MO, to practice in Kansas. It is a tale of two cities. That is 
why I think we should support the bill that has been authored by the 
Senator from Nevada, S. 11.
  A study by Weiss Ratings on medical malpractice caps was mentioned 
yesterday evening. The study found that States with caps experienced 
higher premium increases than those States without. I cannot speak for 
other States but I can speak for Kansas, and the reports conclusions 
were untrue.
  First, as I have stated, premiums for the standard policy in Kansas 
are actually lower now than they were in 1991.

[[Page S9071]]

  Secondly, the point needs to be made that all caps are not the same. 
The Weiss report lists the 19 States with caps, but only 5 States, 
including Kansas, have $250,000 caps on noneconomic damages. The rest 
are significantly higher, thus reducing the cap's impact on payouts and 
premiums.
  There is no question that the cap on noneconomic damages has had an 
impact on premiums. It has created an unparalleled period of premium 
stability for Kansas physicians and hospitals. Yes, premiums are 
increasing in Kansas but at a much lower rate that other States.
  Case in point: a family physician who delivers babies paid $13,790 in 
1991 . . . . in 2001, that same physician paid $12,575--an 8.8 percent 
reduction. Similar reductions exist for virtually every specialty. In 
the aggregate, physicians paid $75.3 million in premiums in 1991 and 
$60 million in 2002.
  Finally, I wish to point out that there are probably about 15 percent 
more physicians practicing in Kansas today than there were 12 years 
ago, and the total premium is still lower.
  Senator Bond and I have shared with our colleagues what good medical 
liability reform can do.
  Our Kansas City doctors have provided an outstanding example of how 
medical liability affects doctors and patients on different sides of 
the State line.
  I urge my colleagues in the Senate to take a closer look at the 
differences between our two States and the positive impact medical 
liability reforms have had in Kansas. I hope that the Senate will 
support S. 11 so that States like Missouri which are struggling to 
retain doctors and offer the best patient care are not left out in the 
cold.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. Six and a half minutes.
  Mr. DURBIN. I thank the Chair.
  Mr. BOND. Mr. President, I wish to reclaim the remaining time. How 
much time is remaining?
  The PRESIDING OFFICER. The Senator will have 1 minute 30 seconds 
left, but the Senator from Illinois has been recognized.
  Mr. DURBIN. Mr. President, I yield to the Senator from Missouri.
  Mr. BOND. Mr. President, I thank my colleague and fellow Cardinal 
rooter from Illinois for allowing me to finish.
  It is important, as I hope the Senator from Kansas and I have pointed 
out, that we must do something on a national basis. Missouri patients 
cannot continue to lose their trusted doctors to the State of Kansas. 
We cannot see people driven out of the practice of medicine--well-
educated, good practitioners who cannot afford the premiums. Unless we 
act today, retaining and recruiting doctors in Missouri will continue 
to be a difficult task.
  I urge my colleagues to consider the experience of patients in Kansas 
City and across Missouri and support the essential medical liability 
reforms in S. 11.
  Mr. President, I ask unanimous consent that an editorial in today's 
Wall Street Journal entitled ``Political Malpractice'' be printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                     [From the Wall Street Journal]

                         Political Malpractice

       Democrats are expected to muster the 41 votes needed to 
     kill medical liability reform in the Senate today, so why are 
     Republicans smiling? Perhaps because they know they're teeing 
     up what promises to be one of their better issues going into 
     2004.
       Democrats have long made the Senate the graveyard of any 
     and all legal reform. The news is that they're having a 
     harder time getting away with it. The scandal of asbestos 
     litigation has forced them at least to bargain on that issue, 
     while momentum is also building to limit class-action suits. 
     It says something about Tom Daschle's devotion to the trial 
     bar that he's willing to ask his Members to walk the plank 
     even on medical liability, just as voters are discovering the 
     damage it is doing to health care across the country.
       No fewer than 19 states are in ``malpractice'' crisis; 
     Doctors have protested or walked our from Nevada to New 
     Jersey, while pregnant women have had to cross state lines to 
     find an obstetrician. One New Jersey doctor has held seminars 
     to train toll-booth operators in emergency delivery, since 
     more live births are likely to occur in transit to a distant 
     hospital.
       Before Texas passed a recent reform, 14 of 17 medical 
     insurers had left in the past two years. In Arkansas, doctors 
     who treat nursing-home patients face a 1,000% premium 
     increased on renewals. In West Virginia, trauma centers 
     closed and doctors went on strike before Democratic Governor 
     Bob Wise led a successful reform effort. Because they 
     contribute to the practice of ``defensive'' medicine--or 
     unnecessary procedures just to be sure--liability suits are 
     also a major cause of rising health-care costs.
       All of this prompted the House to limit medical damages by 
     a vote of 299-196 in March. But Senate Democrats continue to 
     just say no. California's Dianne Feinstein dallied with 
     support for a while, before the lawyers and Mr. Daschle 
     yanked her back into line.
       The irony is that the proposed Senate bill is modeled after 
     California's own successful 1975 reform that limited pain and 
     suffering damages to $250,000. Victims of genuine malpractice 
     still get compensated for economic harm, but they are no 
     longer able to win the lottery of a huge jury award. In the 
     past 25 years premiums across the U.S. have risen three times 
     more than in California.
       Even if reform fails in Congress, the national battle has 
     helped to trigger a wave of change in the states. Ten states 
     have passed some liability reform in the past year, and 
     another 17 have debated it. Nearly all of these reforms 
     include some limit on non-economic damages, the kind that 
     drive insurance rates out of sight and are unconnected to 
     genuine harm.
       Still more state reforms are on tap this year. Florida 
     Governor Jeb Bush is calling his legislature back for an 
     unprecedented second session starting today to address the 
     problem. Connecticut, where obstetricians will seen an 85% 
     increase in premiums for next year, may also have a special 
     summer session.
       As federalists, we think this wave of state reform is 
     probably better than a single national law. Unlike class 
     actions, which damage commerce nationwide, medical liability 
     affects health care in individual states. If a state's 
     political-legal class is driving doctors away, then its 
     voters can throw the political bums out. That may be what 
     eventually happens in Missouri, for example, where Democratic 
     Governor Bob Holden is promising to veto reforms passed by 
     the GOP-run legislature. There's also a danger that a 
     national reform might override even better state laws, such 
     as California's.
       The argument for national reform is that the crisis is too 
     acute to wait for 50-state trench warfare, especially against 
     a trial bar grown so rich on tobacco and asbestos shakedowns 
     that it can buy entire legislatures. Some states in crisis, 
     notably Pennsylvania, also have constitutional obstacles to 
     capping non-economic damages. And yet reform's recent success 
     shows that is can be done.
       The vote in Congress will help this along by educating 
     Americans about the problem and who refuses to solve it. 
     Among Republicans, we'll be watching Pennsylvania's Arlen 
     Specter in particular. He's typically a pal of the trial 
     lawyers (his son is a medical liability lawyer), but he also 
     faces a primary challenge next year from a reform proponent, 
     Congressman Pat Toomey.
       But the main result of today's vote will be to get the 
     Democrats on record for killing reform one more time. They 
     will then have handed President Bush and most Republicans an 
     issue that is both good policy and good politics for next 
     year. In a debate between lawyers and patients, we know where 
     the voters will come down.

  Mr. BOND. The Wall Street Journal says:

       As federalists, we think this wave of state reform is 
     probably better than a single national law. Unlike class 
     actions, which damage commerce nationwide, medical liability 
     affects health care in individual states.

  It goes on:

       The argument for national reform is that the crisis is too 
     acute to wait for a 50-State trench warfare, especially 
     against a trial bar grown so rich on tobacco and asbestos 
     shakedowns that it can buy entire legislatures.

  I yield the remainder of my time. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, let me say at the outset, we have talked a 
lot about the Patients First Act that is before us, S. 11. As far as I 
can tell, this is ``patients last.'' It says, regardless of the injury 
you sustained because of medical errors, medical negligence, medical 
malpractice, we are going to limit you to $250,000 that you can recover 
for your pain and suffering no matter how many years you have to 
endure.
  This is a photograph of Sharon Keller whom I met yesterday, a proud 
registered Republican, as she announced in our press conference. After 
a hysterectomy, she went into the doctor's office for an exam. 
Unfortunately, the surgeon, as she examined her, made a move and 
removed a suture and bleeding started. When the bleeding became 
excessive, the doctor left the room and left Sherry on the examining 
table as she went out to find someone

[[Page S9072]]

who could respond to the need and, at the same time, went to see some 
other patients while Sherry was bleeding on the examining table.
  Unfortunately, after a period of time, she went into shock and fell 
off the examining table, as she was left unattended in the examining 
room. When she fell off the table, she hit the counter as she fell and 
damaged her spinal cord, rendering her an incomplete quadriplegic.
  In this state of bleeding and virtually paralyzed, she dragged 
herself out into the hallway to beg for help. The doctor called an 
ambulance to take her to the emergency room but said: Just transport 
her; you do not need to treat her on the way. She waited several hours 
at the emergency room before they eventually treated her. She will 
never walk again. She is a housewife and mother who had no lost 
wages because of this and, frankly, because of this bill, she would be 
limited to recover $250,000.

  Is that jackpot justice? Has Sherry Keller made out like a bandit--
$250,000--for what she is going to go through for the rest of her life? 
Is she being treated first as a patient? She is being treated last, and 
that is unfortunate and unfair.
  There is a medical malpractice insurance problem in America. We 
should address it in a responsible way and not at the expense of 
victims such as Sherry Keller.
  Senator Graham of South Carolina and I have introduced a bill as an 
alternative to this which we believe is a constructive first step 
toward dealing with this.
  First, to increase patient safety efforts across the United States to 
reduce malpractice.
  Second, to provide an immediate tax credit for doctors and hospitals 
for their malpractice premiums. Doctors and hospitals cannot afford to 
wait 8 to 15 years, as the sponsor of this legislation says it will 
take, before limiting the recovery of victims results in lowers 
premiums.
  Incidentally, there are people in the insurance industry who will not 
even say it will result in any reduction in premiums over a period of 
time.
  We also repeal the antitrust exemption given to the insurance 
industry, which is totally unfair, which will end collusion among those 
companies in setting rates.
  We reduce frivolous lawsuits in saying to attorneys, those few bad 
actors: If you do it, we not only will fine you, but ultimately we will 
prohibit you from filing this type of lawsuit.
  We give grants to hard-hit areas described in Missouri, Kansas, 
Illinois, and North Carolina, so they can deal with losing doctors and 
hospitals. We say that punitive damages are going to be allowed in only 
the most egregious cases, serious intentional situations. But if a 
doctor has been involved in helping his or her community through 
Medicare and Medicaid, they would be immune from punitive damages in 
medical malpractice cases.
  We do not provide this great protection for the drug companies and 
the medical device manufacturers who decided to jump on this medical 
malpractice bandwagon for the ride and limit their own liability.
  We do not preempt State laws. Individual States can still make 
decisions they made historically, and we do provide statute of 
limitations be decided by each State.
  This is going to result in lower premiums and better situations for 
people across America. It is a better way to go. I, frankly, think we 
have to look at the root causes of the malpractice insurance problem. 
First is the incidence of malpractice of epidemic proportions, 
according to the Bush administration. That is the root cause.
  Secondly, the malpractice insurance companies, when they made 
investments during the Clinton era, as the stock market was booming--
and we all remember that--they did quite well. When the bottom fell out 
a couple years ago in the stock market, so did their investments.
  What does an insurance company do when their investments start to 
lose ground? They raise the premiums on the doctors. That is what is 
going on here. We are being asked to penalize patients and victims of 
medical malpractice because of the investment practices of insurance 
companies. We are riding to the rescue of insurance companies at the 
expense of children whose lives are forever damaged and changed because 
of medical malpractice. We are putting limitations on recovery for 
people who are innocent victims so we can help the bottom line and 
profitability of insurance companies.
  Time and again, this Senate races to protect special interest groups 
and forgets the families, children, and elderly people across America 
who are the victims of this wrongdoing. That is not fair to them. It 
certainly is not fair to this country.
  I end by saying to doctors and hospitals across this country, after 
we defeat this bad bill, let us come together for a reasonable solution 
to reduce medical malpractice, to bring in the insurance companies and 
hold them accountable and say to the legal profession they must 
guarantee to us as well that there will be responsible conduct on their 
part.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator's time has expired. All time has 
expired.
  Mr. ENSIGN. I have 2 minutes and 20 seconds remaining.
  The PRESIDING OFFICER. There is no time remaining.
  Mr. ENSIGN. I yielded to the Senator from Missouri and reserved 2 
minutes and 20 seconds for myself.
  The PRESIDING OFFICER. It is my understanding the Senator from 
Missouri used that time.
  Mr. DURBIN. If I might, I am happy to yield 2 minutes to the Senator 
from Nevada. I ask unanimous consent that the Senator from Nevada have 
2 minutes.
  Mr. PRESIDING OFFICER. There is no time to be yielded.
  Mr. SCHUMER. Mr. President, as I understand it, I have 10 minutes.
  The PRESIDING OFFICER. Under the previous order, at 11:10, the 
Democratic leader will be recognized for 10 minutes. At 11:20, the 
majority leader will be recognized for 10 minutes.
  Mr. SCHUMER. I designate myself as the Democrat to control those 10 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. I am happy to yield 2 of those 10 minutes to the Senator 
from Nevada, and I will then take the next 8 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Nevada.
  Mr. ENSIGN. Mr. President, I thank my colleague for the time.
  I will make a couple of quick points. First, we have seen a lot of 
pictures from the Senator from Illinois. He talked about the $250,000 
cap on damages included in this bill. Let's get one thing straight. It 
is a $250,000 cap on pain and suffering.
  He put up a picture of a young child. I will read some of the totals. 
California has comprehensive medical liability reform in place that 
this bill I have presented today is modeled after. These are the 
following awards, and these are almost all economic damages or medical 
damages that were awarded to these infants: $43,500,000 in May 2002; 
July 1999, $30,800,000; April 1999 in Orange County, almost $7 million; 
January 1999 in Los Angeles County, almost $22 million; December 2002, 
$84 million. So for pictures to be put up and to say, what is this 
child going to get, this child can get a lot. Most of these awards are 
in economic damages or in medical expenses. Those damages are not 
capped in this bill.
  The next picture we have to put up is a woman with her child. Because 
there was no OB/GYN available, she had to deliver this child on the 
side of a road by herself. Unfortunately, the patient did have 
complications, and the mother had to provide CPR to the baby on the 
side of the road in the middle of the Arizona desert. Thankfully, the 
baby survived. But she could have had serious consequences, and then 
they would not have been able to get compensation from anybody. And 
this is because there was no care available at the community hospital 
that she had to bypass because the doctors could no longer afford the 
premiums because of the frivolous and outrageous lawsuits that are 
destroying our court system.
  I yield the floor.


                     Nomination of Victor J. Wolski

  The PRESIDING OFFICER. The Senator from New York.

[[Page S9073]]

  Mr. SCHUMER. Mr. President, I ask that I be given 4 minutes of the 
remaining 8 and the Senator from Illinois be given 4.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Mr. President, I want to repeat the arguments against 
Mr. Wolski. Something new has happened since I spoke an hour ago. The 
AFL-CIO has come out against him, which is understandable, because of 
his ideology.
  Mr. Wolski should be defeated for two reasons. First, he is an 
ideolog. This important court, when it comes to the environment, does 
not deal with much else we would care about, other than just claims 
issues, and we should not have somebody who is a self-described 
ideolog. Let me repeat that Victor Wolski, in his own words, said every 
single job he has taken since college has been ideologically oriented, 
trying to further his principles, which he describes as a libertarian 
belief in property rights and limited government.
  I do not think the Founding Fathers intended judges to be ideologs. 
That is why they have us advise and consent, so that if a President, as 
this President does, sees judges through an ideological prism and does 
not nominate moderates--I do not like judges far right or far left--
when he nominates them, we can be the check. We have used that power 
judiciously. We have defeated or filibustered only two of the 134 
nominees the President has made.
  This man deserves to be defeated. He is an ideolog, way over. If my 
colleagues believe we have made advances in clean water and clean air, 
his theory is that any type of environmental law is a taking, which 
denies the compact on which we all live: That if someone lives upstream 
on a river from somebody else, they do not have the right to dirty that 
river and foul the water of the person who lives downstream. If someone 
lives 100 miles east and they own a factory where the winds blow in 
that direction, they do not have a right to spew SO2 and NO2 in the air 
and foul the lungs of people who live downwind.

  Mr. Wolski does not believe in that. He says if someone has the money 
and can build the plant, go build it. That is the core of his beliefs 
in terms of takings. So he is an ideolog. He does not have the 
temperament for the bench, as mentioned. He said that Members of 
Congress were, and this is his word, bums. If he does not like us, he 
has a right to denounce us, but that is not the kind of word of a 
person we want to see as a judge.
  Just as importantly, whatever one's views on Wolski, this is a 
boondoggle, a waste of money. The average number of cases a court of 
appeals judge handles is 355. The Court of Federal Claims handles 24. 
If we add these judges, it will go down to 19--a million-dollar 
boondoggle.
  The Washington Post, in an editorial, called it the ``Court of 
Extravagance.'' When President Clinton was President, Members of the 
other side refused to fill these vacancies, stating there were too few 
cases and too small a workload. Well, the workload is even smaller and 
we are nominating four judges. We do not have money for all of what we 
are talking about--prescription drugs health care, education--and we 
are doing this. It is wrong. It is hypocritical of those who have said 
in the past that this court should not be filled, because it has such a 
low caseload, to fill it now.
  I urge Mr. Wolski's nomination be defeated.
  Mr. SANTORUM. Mr. President, I rise in support of proceeding to the 
consideration of S. 11, the Patients First Act. The issue of medical 
liability reform has been studied extensively, and clearly Federal 
policymakers have an obligation to address the explosion in litigation 
across the country and jackpot-sized awards that are having a severe 
impact on doctors, hospitals and patients' access to care.
  This is a national crisis that requires a Federal solution. The 
crisis is not confined within State lines, as patients are losing 
access to physicians within their State and are having to cross State 
lines merely to get access to care. Similarly, physicians are being 
forced to leave their practices due to high insurance rates, and 
relocate to a State that has enacted some type of reasonable reform 
that has remained on its books through judicial review.
  In Pennsylvania and many other States, health care providers are 
facing enormous increases in their medical liability insurance premiums 
or are unable to obtain coverage at all due to a significant rise in 
scarce resources being drained from our health care system because of 
sporadic and sometimes frivolous health care litigation. As a result, 
real patients are being denied access to care and losing their family 
doctors because of exorbitant medical liability costs.
  In some States including Pennsylvania, some ob-gyns have been forced 
to stop delivering babies, trauma centers have closed, and physicians 
are grappling with how they can continue to provide other high-risk 
procedures. South Philadelphia now has no operating maternity wards. In 
Fayette County, a practice of three obstetricians that delivers half of 
the babies born in the area stopped delivering babies when faced with a 
premium increase from $150,000 in 2002 to $400,000 in 2003. And 
according to the Pennsylvania Medical Society, 72 percent of doctors in 
our State have deferred the purchase of new equipment or the hiring of 
new staff due to increased medical liability costs.
  To be sure, Mr. President, the health care profession is not free of 
error. And I fully support a person's right to seek just compensation 
when they are harmed by negligent or improper medical care. And I also 
fully support initiatives referenced over the past couple of days that 
would help to root our and prevent medical errors. But escalating jury 
awards and the high cost of defending against lawsuits--even frivolous 
ones--are driving up liability premium increases, with devastating 
results for patients.
  According to Jury Verdict Research, the median jury award increased 
43 percent in just one year, 1999-2000. More than half of all jury 
awards today top $1 million, and the average jury award has increased 
to $3.5 million. And the vast majority of medical liability claims do 
not result in any payments to patients.
  And so how does this impact patients? Quite simply, medical 
professionals are fleeing from areas where medical liability premiums 
are escalating at a rapid pace. We have heard of many horror stories 
over the past couple of days and in Congressional testimony about 
patient access to care being adversely affected. The Wilkes-Barre Times 
Leader, on October 23, 2002, reported the experiences of one of my 
constituents in Northeastern Pennsylvania who suffers from two 
herniated disks, having to travel an entire day because high insurance 
premiums have decreased the number of neurosurgeons.
  The truth is--every American pays the price for this country's 
liability crisis, and Congress and the President have a responsibility 
to fix this very serious problem.
  Pennsylvania's own Representative Jim Greenwood has been a strong 
leader on this issue and has introduced the bipartisan HEALTH Act, 
legislation which would put in place new Federal minimum standards for 
liability reform, based on measures that have been proven to be 
effective in States like California with its proven MICRA reforms, to 
help prevent excessive awards that are driving up health care costs, 
encouraging frivolous lawsuits, and promoting time-consuming legal 
proceedings.
  The Patients First Act we are seeking to consider here in the Senate 
is largely based on the House-passed HEALTH Act, and includes many 
commonsense provisions which can serve as a bipartisan model for 
medical liability reform. It would establish a reasonable Federal fall-
back cap on non-economic and punitive damages, but would allow States 
the flexibility to set levels higher and lower if they choose. It would 
allow for unlimited economic damages, and would ensure fair allocation 
of damages, in proportion to a party's degree of fault. It would also 
ensure that more of the awards from meritorious cases are paid to the 
patient instead of trial lawyers.
  Far from limiting the opportunities of patients to seek redress in 
the courts, S. 11 would ensure full and unlimited recovery of economic 
damages, of medical expenses, of rehabilitation costs, childcare 
expenses, all current and future wage earnings that are lost, including 
employer-based benefits, and any other economic losses.

[[Page S9074]]

  We have heard a lot from the other side of the aisle about how this 
legislation would somehow limit patient access to the courts by forcing 
a Federal mandate to limit non-economic damages to $250,000. This is 
completely false, and the other side of the aisle knows it. S. 11 would 
give States the flexibility to establish or maintain their own laws on 
damage awards, whether higher or lower than those provided for in this 
bill.
  And the experience of California shows that injured patients have not 
only maintained access to the courts, but in many cases have received 
multi-million dollar awards in economic damages, including minors and 
non-working spouses.
  The opponents of moving to consideration of this bill have also tried 
to move the spotlight away from the underlying issues of cost and 
access and suggest that the answer lies in insurance reform. This is a 
flawed argument that takes needed attention away from the real 
problems.
  Suggestions that liability rates are high because insurance companies 
are trying to recover past losses are, quite simply, factually wrong. 
As a matter of law, medical liability rates are determined by estimates 
of future losses from claims. State regulators are already required by 
law to reject liability insurance rates that are excessive. Changing 
insurance laws will do nothing to change the underlying reason for 
rising premiums--an increase in meritless litigation and skyrocketing 
jury awards.
  President Bush is committed to passing balanced bipartisan 
legislation that will put reasonable limits on liability lawsuits while 
allowing compensation for patients truly harmed by medical malpractice. 
Such reforms can save the Federal government and our health care system 
tens of billions of dollars in rooting out frivolous lawsuits and 
reducing defensive medicine.
  We can and should create a medical liability system that more 
equitably and rapidly compensates patients who have received 
substandard care, but which at the same time limits frivolous lawsuits 
and increases access to health care by reducing the excessive costs of 
the system.
  Mr. President, we have an obligation to at least move to 
consideration of this bill, to have the opportunity to offer 
amendments, and to show the American public that Congress is capable of 
working toward real solutions on this growing health care crisis.
  Mrs. DOLE. Mr. President, today the Senate must make a decision that 
will affect the entire state of our health care system. For years, 
America has enjoyed world-class health care. We have led the way in 
cures and treatments, we have developed the latest and the best 
technologies, and we have ensured that our doctors are trained in 
ground-breaking procedures. Indeed, our Nation has accomplished much in 
the area of health care.
  But today the future of our world-renowned health care system sits in 
the balance as this Senate mulls two very important choices. Will we 
succumb to some trial lawyers who have nearly crippled the system by 
filing hundreds of frivolous lawsuits each year? Or will we do the 
right thing and place limits on these lawsuits and the big-money fees 
lawyers earn off of them, so that our doctors can have the peace of 
mind they need to do the job they love? I challenge my colleagues to do 
the latter.
  America is in the midst of a crisis. Those who need health care, the 
most vulnerable and sickest among us, are the real victims. We have all 
heard their stories. Too many of our patients can't get doctors, can't 
get specialists, can't get health care. In North Carolina, rural 
residents have been among the hardest hit. Patients tell stories of 
driving miles just to find a doctor to treat an illness. There have 
been reports of women driving for miles and miles just to find someone 
to deliver their baby. This is beyond unacceptable. No one in this 
country should have to struggle like this for health care. The America 
I know is better than that.
  I have heard from doctors in my State. And this crisis is having a 
detrimental effect on our medical providers. Too many of them can't 
afford rising malpractice insurance rates. They have had to curb their 
medical practices, stop taking some patients, move to another State and 
perhaps the most painful, leave the profession altogether. Dr. Jack 
Schmitt says his insurance premiums went from $18,000 to $45,000 a 
year. He eventually decided to leave his practice and teach at the 
University of Virginia Medical School.
  Doctors who decide to remain are forced to practice defensive 
medicine and order an excessive amount of tests and procedures to 
protect themselves from lawsuits. Dr. Steve Turner of Garner estimates 
that internists like him prescribe close to $5,000 a day in defensive 
medical practices or $1.2 million a year per doctor. This cannot 
continue.
  North Carolina is included on a list of 18 States that the American 
Medical Association says is suffering from a medical liability crisis. 
According to the AMA, some North Carolina hospitals have seen their 
liability insurance premiums rise three- and five-fold in the last few 
years. Specialists--like our obstetricians, emergency doctors, and 
anesthesiologists--are seeing even higher increases.
  Consider this: Novant Health, the corporate parent of Presbyterian 
Hospital in Charlotte, saw its malpractice insurance increase by 114 
percent between the years 2000 and 2003. They are now paying $4.5 
million in malpractice insurance.
  In Catawba County, doctors participating under the Network of Primary 
Care practices have been told that because of rising premiums, charity 
care will no longer be purchased for them under their policy. This 
means if doctors want to volunteer their medical services at a soup 
kitchen, homeless shelter, or some other charity, they are going to 
have to first buy separate, costly insurance coverage themselves.
  Even our Level III trauma center in Cabarrus County is in danger of 
closing after premiums increased 88 percent. The list, the stories, and 
the pain are endless.
  The legislation before us is a solution that we know works. It is 
modeled after California's MICRA law which has been in place since 1975 
and has kept insurance premiums down in that State. This legislation 
does not cap damages. Victims who suffer from a doctor's malpractice 
will be able to recover every penny of their actual economic damages. 
It does limit noneconomic damages, like pain and suffering. Punitive 
damages would be limited and so would attorneys' fees. But the 
legislation allows patients to collect for medical bills, funeral 
expenses and other costs. And States would still have the option of 
setting higher or lower caps than what is in the bill.
  This really is one of those issues where the Senate cannot sit idly 
by. The House has passed a bill. It is time for the Senate to do the 
same.
  We have a choice. We can vote with some trial lawyers who file 
endless lawsuits and watch our health care system spiral into decay, or 
we can put an end to this debate and protect our health care system by 
casting a vote for our patients and the medical professionals who so 
tirelessly care for them. I urge my colleagues to vote in favor of 
cloture. Let's pass the bill for our patients who need it most.
  Mr. NELSON of Florida. Mr. President, while I recognize that medical 
malpractice insurance premiums have increased at an alarming rate in 
many States, I rise today in opposition of the Patients First Act of 
2003, S. 11. This bill does not put patients first, and fails to 
address major parts of the problem.
  Any legislation aimed at reducing premiums for medical malpractice 
insurance must include reforms to the industry, and should be done by 
experts at the State level. Insurance regulation and tort law are 
traditional State issues.
  The Senate is moving forward on this bill even though it has not been 
vetted through the appropriate committees. To date, there have been no 
hearings in Judiciary or a markup of S. 11.
  In addition to foregoing the appropriate legislative process, I am 
also concerned that this proposal, as introduced, fails to do what it 
promises to do--ensure patients' access to doctors and decrease 
malpractice insurance rates for physicians.
  As a former insurance commissioner, I learned first hand that 
insurance is best regulated at the State level. That level or 
regulatory oversight over the industry ensures that residents of a 
particular State are all afforded the

[[Page S9075]]

same protections and guarantees. A one-size-fits-all approach like S. 
11 is not the best policy.
  In addition, one of the cornerstones of the McCarran-Ferguson Act in 
1945 was that in exchange for exemption to Federal antitrust laws, the 
regulation of the business of insurance would be carried out at the 
State level.
  In the late 1980s and early 1990s insurers flocked to the medical 
malpractice insurance market because of increased cashflow and rising 
interest rates. These insurers pursued as much business as they could 
and as competition increased, prices dropped. This competition created 
an environment of underpricing the actual risks of the insurance.
  As the economy worsened and investment income dried up, insurance 
companies increased premiums to recover investment as well as insurance 
losses. The Senate should not ignore the business practices of the 
insurance industry in the so-called ``medical malpractice crisis.''
  In a recent report by the Institute of Medicine it was estimated that 
98,000 people die each year due to preventable medical errors. That is 
268 each day. Why then instead of solely focusing on the tort system 
are we not also addressing this issue? After all these errors are the 
reasons most people seek compensation.
  The Senate's proposal fails to improve overall patient safety and the 
reporting of medical errors. Patients should have access to this 
information and be allowed to make informed decisions about their 
physicians.
  Proponents of this legislation argue that by limiting the risk of 
insurance companies through caps on damages, that by protecting their 
interests, we will then lower medical malpractice insurance premiums 
and ensure access to health care providers. I do not believe this is 
accurate.
  In the State of California, which already limits non-economic damages 
to $250,000, the average actual premium is $27,570, 8 percent higher 
than the average of all States that have no caps on non-economic 
damages. Clearly a cap did not keep these premiums from rising.
  In Florida, as in the Nation, we have had some sad malpractice cases. 
If patients had access to information about their doctors then perhaps 
Willie King may not have had the wrong foot amputated in 1995.
  Mr. King was admitted to University Community Hospital in Tampa, 
Florida, for the removal of his right foot. Imagine his surprise when 
he woke up to find that Dr. Rolando Sanchez had removed the left one 
instead. As it turns out 2 years earlier, Dr. Sanchez had settled a 
claim from a man who agreed to one type of hernia operation but instead 
had another, State records show.
  Still, Mr. King--who was already collecting disability--still had to 
have his other foot removed and was unable to remain independent as he 
had been prior to the operation.
  To cap damages, without regard to the extent of an injury is 
shortsighted and unfair. Caps just do not fix the problem. It is far 
more complicated than that.
  In California, which is often touted as the example of how effective 
caps are, medical malpractice premiums increased by 190 percent during 
the first 12 years following enactment of the $250,000 MICRA cap. It 
was not until California's Proposition 103 was enacted that malpractice 
premiums were lowered and stabilized.
  In Florida, where this issue is being hotly debated, insurers have 
made no guarantees to lower their premiums. Even after the Governor 
sought to get that assurance by further protecting them from lawsuits, 
the industry still refused to guarantee any sort of decrease in rates.
  In addition to caps not reducing malpractice insurance premiums, they 
are also unfair. Take the case of Janet Pandrea from Coconut Creek.
  In January 2002, at the age of 65, Mrs. Pandrea was diagnosed with 
cancer in her chest. Janet had been married for 46 years, she had been 
a healthy and active mother and grandmother. She was told to begin 
chemotherapy treatments, and died from complications after only 2 
months.
  The doctors did not tell her family why she died so suddenly, so they 
requested an autopsy. The autopsy showed that she never had cancer. 
Janet should never have been subjected to the chemotherapy that killed 
her.
  The economic damages for a 65-year-old woman would cover only her 
medical bills. Her family would not be able to recover more than 
$250,000 for the loss of their wife, mother, and grandmother.
  Mr. President, I rise in opposition to this legislation, not because 
I do not think that there is a serious problem with the medical 
malpractice insurance in this country, but I do not support this bill 
because it will not reduce premiums or enhance a physician's ability to 
provide care.
  Mr. FEINGOLD. Mr. President, I recognize that we have a problem in 
this country with malpractice insurance premiums. I would like very 
much for Congress to address that problem. It is my judgment that S. 11 
will not solve that problem, and it will harm innocent Americans who 
have suffered horrible and permanent injury at the hands of negligent 
medical practitioners. I will therefore vote no on the cloture motion.
  Mr. President, there are many provisions of S. 11 with which I have 
serious disagreement. Let me just mention a few. In a provision called 
the fair share rule, the bill eliminates joint and several liability in 
medical malpractice cases. What that means is that if one responsible 
defendant is insolvent and has no insurance coverage, the victim of 
malpractice ends up without a full recovery of his or her damages. This 
is not fair. Most State laws provide that the risk of one defendant 
being insolvent or judgment-proof is borne by the other responsible 
defendants. There is no reason to change this longstanding principle of 
law.
  Another problem with this bill is the new statute of limitations that 
the bill imposes on medical malpractice claims. Shorter statutes of 
limitation don't discourage frivolous claims, they encourage them. 
Lawyers facing a looming statute of limitations have to file lawsuits 
to protect their clients' options. Imposing a statute of limitations of 
as little as 1 year, as this bill does, does not allow adequate time to 
investigate a claim and determine if it is really worth filing.
  I am also concerned that this bill has been drafted to protect not 
only doctors but medical device manufacturers and drug companies from 
liability claims. There is no evidence that suits against these 
defendants are contributing to rising medical malpractice insurance 
premiums. So this bill is not just a medical malpractice bill, it is a 
product liability bill.
  But the most ill-advised provision in this bill is the cap on 
noneconomic damages of $250,000. At the one hearing held on this issue 
this year, the Judiciary and HELP Committees heard from Linda McDougal, 
a 46-year-old Navy veteran from Woodville, WI. Last year, Ms. McDougal 
underwent a double mastectomy after her biopsy results were switched 
with those of another patient. She didn't have cancer, she never had 
cancer. We can be thankful for that. But her life, and her family's 
life, will never be the same.
  I hope everyone in the Senate will read Linda McDougal's testimony 
and learn about her experience. It is a powerful cautionary tale for 
those of us who are charged with voting on legislation concerning 
medical malpractice.
  I find it hard to believe that anyone in this body can look Linda 
McDougal or any of the thousands of victims of catastrophic medical 
malpractice in the eye and say, ``$250,000 is all your pain and 
suffering are worth.'' Would any of us be able to tell our mothers or 
our wives or our daughters that their damages should be limited to 
$250,000 if they were the victims of the unspeakable pain and lifelong 
sadness that Linda McDougal will endure? Remember, Linda McDougal 
didn't have extraordinary medical bills or lost wages. Her damages are 
noneconomic. But her loss is real, it is permanent, it is unfathomable.
  There is no question that we have a problem in this country over the 
cost of malpractice insurance. But the solution cannot be to penalize 
innocent victims like Linda McDougal, to prolong and extend this 
suffering by denying them adequate compensation.
  We have virtually no evidence that caps on economic damages will 
actually lower insurance rates. Indeed, as Senator Durbin noted in this 
debate, in

[[Page S9076]]

States that have caps on noneconomic damages, insurance premiums 
increased 48 percent from 1991 to 2002. But in States without caps, the 
insurance has been only 36 percent. So the case has just not been made 
that the caps in this bill will lower malpractice premiums. But more 
importantly, the case has not been made, and in my view cannot be made, 
that these caps are fair to victims like Linda McDougal.
  There very well may be solutions that we in the Senate can develop to 
addrsess the cost of medical malpractice insurance in this country and 
the effect on patient care that rising premiums are causing. And there 
certainly are things we can do to address the disturbing problem of 
medical error in this country. The Institute of Medicine estimates that 
between 44,000 and 98,000 adverse medical events occur in hospitals 
every year.
  If we want to reduce malpractice insurance premiums we must address 
these problems as well as looking closely at the business practices of 
the insurance companies. What we shouldn't do is limit the recovery of 
victims of horrible injury to an arbitrarily low sum.
  This is obviously a complicated issue. This is the kind of issue that 
needs to be explored in depth in our committees so that a consensus can 
emerge. It is not the kind of issue that should be brought directly to 
the floor with such a great gulf between supporters and opponents. So I 
will vote ``no'' on cloture today, and I hope that the bill will go 
through the HELP Committee and/or the Judiciary Committee before we 
begin floor consideration of this important topic.
  Mr. ALEXANDER. Mr. President, I come to the floor today to express my 
concern with the rising cost of medical liability insurance. I have 
heard from doctors and hospitals from one end of Tennessee to the 
other, all concerned with the sky rocketing cost of medical liability 
premiums. The increasing cost of medical liability insurance is 
creating a patient access crisis because doctors are leaving the 
practice of medicine.
  At Hardin County General Hospital in Savannah, TN, both an 
orthopedist and an OB/GYN have left the hospital to go practice in 
other States because their insurance premiums were too high. High 
medical liability insurance is one more reason it is difficult to 
recruit specialists to rural areas.
  At the University of Tennessee Health Sciences Center in Memphis, 
young people just entering the profession are being sued at a 
horrifying rate, discouraging them from continuing with the practice of 
medicine. Since 1990, one third of all residents in training have been 
served with a malpractice suit. Some specialties, such as OB/GYN and 
Neurosurgery, are being sued so frequently that students are not 
pursuing these specialties. This will soon cause a crisis in access to 
specialty care.
  Tennessee hospitals experienced liability insurance premium increases 
of 75 percent to 400 percent last year. Baptist Memorial Health Care 
Corporation in Memphis, TN, had liability coverage of $2.7 million for 
2002. For 2003, Baptist was quoted $8.3 million for liability coverage. 
This is an increase of $6 million in 1 year.
  In 2002, the medical liability premium for an OB/GYN in Tennessee was 
$62,000. In 2003, the premium more than doubled to $160,000, and in 
2004, it is estimated to more than double again to $285,000. This sort 
of increased cost is not sustainable. I am worried about who will 
deliver babies in my State. Other physicians are also feeling the 
squeeze. In 2002, the medical liability premium for a family practice 
physician was $44,000. In 2003, the premium increased to $117,000. 
Again, this sort of increased cost is not sustainable.
  I believe that S. 11, the Patients First Act, is a great step in the 
right direction. The Patients First Act will reduce the effects of 
excessive liability costs by placing a sensible cap on non-economic 
damages. The bill will still allow unlimited economic damages. If a 
patient is injured, they will have unlimited access to economic damages 
to pay for their recovery.
  S. 11 will help stem the tide of rising medical liability premiums 
before patients lose access to medical care. I hope we reach cloture on 
the motion to proceed so that we can consider this very important 
legislation.
  Mrs. MURRAY. Mr. President, there is a health care crisis in this 
country. Millions of Americans have no health insurance. Insurance 
companies continue to increase their premiums and doctors and patients 
are the ones who are paying.
  In my home State of Washington, our health care system is in trouble. 
Some doctors are closing their practices, retiring early, or moving to 
other States. We have a shortage of nurses and other medical 
professionals. And one in nine Washington State residents do not even 
have health insurance.
  Doctors in my State are seeing their malpractice insurance premiums 
increase by 100 and even 200 percent. At the same time, Medicare, 
Medicaid, and private insurance companies are reducing their 
reimbursement amounts. These multiple forces have created a perfect 
storm for doctors and patients.
  In some specialties, like OB GYN, the malpractice insurance market is 
out of control. Insurance companies keep jacking up their premiums. 
These insurance company increases are simply not sustainable.
  I strongly support legislation to correct these problems and to get 
skyrocketing insurance premiums back under control. We must help to 
stabilize our health care system by making sure that doctors are not 
forced out of business by rising insurance rates.
  Unfortunately, the proposal before us is not the answer. There are 
major flaws with both the process and the substance of the proposal.
  First, this bill would preempt State patient rights laws, and give 
more protection to HMOs and insurance companies at the expense of real 
people who are hurt.
  Second, caps on noneconomic malpractice awards have not been 
effective at reducing insurance rates in States where they have been 
tried; and
  Third, this bill is being used as a political club, instead of a real 
attempt to find a meaningful solution.
  I am deeply disappointed that some Senators would rather play 
political games with our Nation's health care instead of trying to find 
a real solution.
  One problem is that this proposal preempts State patients' right laws 
and protects HMOs and insurance companies rather than doctors and 
patients.
  For the past 3 days Senators have talked about the impact of the 
medical malpractice crisis on doctors and patients across the country. 
And those who have been following this debate might assume that this 
legislation would only provide protection to doctors and hospitals. But 
this bill goes much further.
  S. 11 also extends additional protections to nursing homes, HMOs, 
drug and medical device manufacturers.
  Not only does S. 11 provide liability relief for these groups. In 
some cases it preempts State patient bills of rights laws and 
protections--protections that patients and doctors have fought hard to 
achieve.
  Since 1997, I have worked to secure passage of a Federal Patient's 
Bill of rights to protect patients and to ensure that insurance 
companies make decisions based on sound medicine, not profit margins.
  Working with doctors and hospitals we have twice tried in the U.S. 
Senate to enact a comprehensive Patients' Bill of Rights, but were 
defeated by special interests. The foundation of any patients' bill of 
rights legislation is holding HMOs accountable for making medical 
decisions. Unfortunately, S. 11 would take us in the opposite 
direction.
  Many States, like my home State of Washington, did not wait for 
Federal action to protect patients and doctors. In March 2000, 
Washington state enacted a strong Patients' Bill of Rights law that 
held HMOs and insurance companies accountable and liable for harm 
caused when insurance plans denied or delayed access to recommended 
health care services.
  The State law also provides a 3-year statute of limitation from the 
completion of the independent external review process. But, S. 11 would 
preempt this law. It would impose a Federal noneconomic limitation of 
$250,000 and would reduce the state of limitation to 1 year.
  This is the wrong approach. The Senate leadership is proposing to 
substitute the judgment of the Federal

[[Page S9077]]

Government in Washington, DC for the judgment of the State legislature 
in Washing State. As insurance has historically been a State, not a 
Federal, issue, Congress must be careful about this Federal expansion.
  The second problem with this proposal is that caps on malpractice 
awards do not necessarily reduce insurance rates.
  I have heard my colleagues refer to California's experience as a 
model for Federal action, since California has enacted caps. However, 
recent data shows that average actual premium rates in California are 
actually higher than States that have no such caps, according to the 
Medical Liability Monitor.
  Across the country, States that have imposed caps on noneconomic 
damages, are now seeing similar increases in insurance premiums as 
those States without caps. If the goal is to help insurance companies 
with their profit margins, then this bill might help. But if the goal 
is to help doctors afford to pay for insurance, then this bill will not 
help.
  Even if caps did force insurance companies to reduce their rates, are 
caps fair to patients who were harmed?
  We know that as many as 90,000 people a year die from medical errors. 
Not all of these errors constitute malpractice, but limiting fair and 
just compensation for even a fraction of these individuals and their 
families is a major change in our judicial system--and a huge price to 
pay in the name of reform.
  If this legislation had gone through the appropriate committee 
process, Congress might have gotten some answers to these questions, 
and the legislation before us might have been helped doctors and 
patients.
  Unfortunately, this bill was brought forward for purely political 
reasons. This is the greatest tragedy of all for doctors and patients. 
Some colleagues would use this bill to help their follow partisans 
rather than the physicians who need it.
  This bill did not go through the standard committee process. There 
were no public hearings to get expert testimony to help shape the 
legislation. There was no committee markup for the legislation for 
Senators to weigh in on the issue.
  In fact, there are a number of reports indicating that malpractice 
claims are not necessarily responsible for higher insurance premiums. 
These reports suggest that it is not the growing number of cases or 
even the size awards that are driving premium increases, but rather the 
decline in the value of investments for insurance companies.
  Without the opportunity to fully understand the problem--with 
hearings and markups-Congress cannot develop a real, workable solution.
  Instead, some Republicans are exploiting this legislation, according 
to the Washington Post, ``as an issue for next year's election.''
  In fact, even Republicans have acknowledged that this is not a 
serious proposal, but instead is a ``political document.''
  A Republican Senator was quoted in the New York Times this morning 
discussing this bill. He said the Senate leadership is ``bringing this 
bill up to get most of my Democratic friends to vote against it, a 
handful of Republicans to vote against it, and they're going to take it 
on the campaign trail.''
  This is outrageous. Patients are losing their doctors. Doctors are 
going out of business. And rather than address a critical problem, the 
Senate leadership is playing political games.
  So what is the answer?
  Clearly, the medical malpractice insurance rates doctors are facing 
are untenable. They are a real problem for doctors, for patients, and 
for our entire health care community. Every week, I hear from doctors 
throughout Washington State about the challenges that soaring 
malpractice insurance premiums are causing.
  That is why I support the Durbin-Graham proposal to provide immediate 
relief to doctors.
  When insurance markets are dysfunctional--as they certainly are in 
malpractice--the Federal Government has a tradition of providing needed 
support. We did that with flood insurance a few years ago, and we did 
it again with terrorism insurance in 2001. When an insurance market 
fails, there is certainly precedent for Federal corrective actions.
  If we can provide relief for terrorism and flood insurance, we should 
be able to provide relief for high-risk, critical practices like trauma 
and OB GYN services.
  While we need to examine every way that we might address this crisis, 
as I look at this idea, I am also realistic. Noneconomic damages are 
not the only factor impacting insurance premiums. It is not clear to me 
that capping just noneconomic damages will really solve the problem. In 
addition, malpractice insurance is traditionally a state issue. If the 
Federal Government is going to insert itself so dramatically in a State 
matter, we need to be sure this approach is going to work.
  There are still too many unanswered questions to proceed with this 
bill. We know that the status quo is not sustainable, but we need to 
recognize that this is a complicated problem and there can be no quick 
fixes.
  It is time to stop playing politics and start working together to 
find solutions and heal our ailing system.
  Mr. EDWARDS. Mr. President, I speak out for ordinary people.
  We all recognize that we need to do something about the medical 
malpractice problem in this country. Premium rates are too high and, in 
some cases, drive away the medical care these people need. I have 
spoken out loud and clear about this issue and recently published an 
op-ed piece in the Washington Post calling for common sense provisions 
included in our bill, which I am proud to cosponsor.
  The PRESIDING OFFICER. I ask unanimous consent to have that printed 
following my remarks. Without objection, it is so ordered.
  Mr. EDWARDS. We have to do something about this problem. But the 
answer is not to slap down the victims, which is exactly what the 
Republican plan will do.
  This is nothing new. Time and again, we have seen this administration 
and the Republican majority stand up for corporate interests with 
little regard for the people who will be harmed by this rush to protect 
big business. This time it is the malpractice insurance companies who 
are being protected at the expense of ordinary people.
  S. 11 comes right off the insurance companies' wish list. It might as 
well have been written by the insurance companies. It drastically 
limits the compensation these companies have to pay children and 
parents who have been blinded, paralyzed or otherwise severely injured. 
The victims who make the least money will suffer the most under this 
plan. The harm to the kinds of families I represented as a lawyer for 
nearly 20 years will be enormous. We need to stand up for these people.
  We need to fight for people like little Tristan Lewis, who lives in 
my State of North Carolina. Tristan was born 3 months premature, but 
her early signs were good. She was breathing on her own and had scored 
eight out of 10 on the APGAR tests, used to rate newborn babies. 
Unfortunately, nurses attempted to warm Tristan with heated IV saline 
bags that burned the tiny girl. They heated the bags in a microwave 
without doctor approval; they failed to check the temperature of the 
bags, and then left Tristan on the boiling hot bags for over 10 
minutes, even though she was crying loudly.
  Black burns covered much of Tristan's back. The third-degree burns 
had penetrated her skin. Nine days after she was born, Tristan was sent 
to another hospital for a surgery, commonly needed by premature babies, 
to close a blood vessel near her heart. The doctors there discovered a 
dangerous infection. Tristan had meningitis, which likely entered her 
little body through the burn wounds. Tristan spent most of her first 
year in the hospital and she had more than a dozen surgeries.
  The pain and complications of the burns increased Tristan's blood 
pressure and caused or aggravated bleeding inside her brain. The 
bacteria that led to her meningitis probably entered her body through 
the burn wounds, where the skin's ability to serve as a barrier against 
infection had been weakened.

[[Page S9078]]

  Tristan, who is now 7, is legally blind. Her eyes bring in images, 
but her brain cannot process them. She is fed through a tube. 
Antiseizure medications make her groggy, so she spends most days 
sleeping. Tristan has no purposeful movement and cannot communicate.
  The hospital's insurance company agreed to settle the case. Now 
Tristan's mother knows that her little girl will always have what she 
needs.
  But if the administration had its way, the hospital would have been 
less likely to settle the case and Tristan would have been limited to 
$250,000 for her ``noneconomic'' suffering. That is just not right. It 
is wrong to try to protect the profits of big insurance companies at 
the expense of victims like little Tristan.
  But every time we point out these inequities, we are shouted down 
with cries of ``class warfare!'' Well, the American people need to hear 
the truth. We are engaging in class warfare. What we have here is a 
fight for fairness.
  The Republican plan is just plain, flat out unfair. And it won't 
work. It penalizes the worst injured people but it doesn't do a thing 
to solve the problem. It doesn't do anything to punish the bad lawyers 
while rewarding the good. It doesn't do anything to make doctors 
accountable for bad behavior. All this plan does is save insurance 
companies money by slamming the courthouse door in the face of innocent 
victims who have nowhere else to turn. But it doesn't require them to 
pass along one cent of this savings to doctors. So victims lose, 
doctors get nothing, and the insurance companies get richer. How can 
anyone claim that is fair?
  Our plan is fair and it will work. It will work because it cracks 
down on price gouging by the insurance industry and takes aggressive 
action against lawyers who bring frivolous lawsuits that don't belong 
in court.
  We have got to reform the insurance industry, something the 
Republican plan completely sidesteps. Today insurance companies use 
slow and burdensome processes to discourage both doctors and patients 
from filing legitimate claims. Worse still, these companies can fix 
prices and divvy up the country in order to drive up their profits. 
Even when companies don't explicitly collude, they set their rates 
based on a trade-group loss calculation that they know other companies 
will follow. In any other industry, this kind of conduct would be 
subject to scrutiny under the antitrust laws. But an obscure 1945 law 
gives insurance companies a broad antitrust exemption. Because of the 
insurance lobby's influence, Congress has even blocked the Federal 
Trade Commission from investigating insurance company rip-offs. These 
special privileges have go to go and our plan does just that.
  Next, we need to prevent and punish frivolous lawsuits. The vast 
majority of lawyers are responsible advocates for their clients, but 
the few who aren't hurt the real victims, make a bad name for the good 
lawyers and clog up our courts. But for all his talk about frivolous 
lawsuits, President Bush does nothing to address them. He has got it 
backward--instead of cracking down on irresponsible behavior and 
baseless cases, he is targeting serious victims who win in court and 
are believed by juries.
  Our plan requires that before a lawyer can bring a medical 
malpractice case to court, he or she must file an affidavit from a 
qualified health specialist verifying that real malpractice has 
occurred. Lawyers who file frivolous cases will face tough, mandatory 
sanctions. Lawyers who file three frivolous cases will be punished 
severely--in other words, three strikes and they are out.
  And, while it is important to clamp down on frivolous lawsuits, we 
also must do everything we can to prevent malpractice in the first 
place. That is why our plan includes measures that will help patients 
avoid doctors with bad track records.
  And, finally, our plan enhances patient access to quality health care 
by easing the burdens imposed on doctors by out-of-control insurance 
companies. First, it repeals the special interest antitrust exemption 
that allows insurance companies to collude and jack up premium rates 
with impunity. Second, it provides a tax credit for malpractice 
premiums paid, based upon the nature of risk in their areas of 
practice. And, third, our plan will help stem the tide of health care 
providers being driven out of certain geographic areas by out-of-
control insurance rates by, among other things, providing grants and 
tax credits to areas experiencing shortages.
  Our plan is fair, it is reasonable, and it will work. The Republican 
plan is not only mean-spirited, but it won't do a thing to solve the 
problem it is supposed to address. Their plan doesn't do a thing but 
build more wealth for big insurance companies on the backs of ordinary 
people who have already suffered too much. And I won't stand by and let 
that happen. None of us should. That is why I urge all of my colleagues 
to stand up for what is right and fight for fairness by voting no on S. 
11.

                [From the Washington Post, May 20, 2003]

                     Let's Keep Doctors in Business

                           (By John Edwards)

       The rising cost of malpractice insurance for doctors is 
     getting in the way of good health care. In rural areas, some 
     specialists can no longer afford to practice, and patients 
     can't get the care they need. We need to fix this problem 
     now, and we need to fix it in a way that is consistent with 
     the doctors' own Hippocratic Oath: First, do no harm.
       Unfortunately, President Bush's proposed prescription comes 
     straight off the insurance companies' wish list: a sharp 
     limit on the compensation these companies have to pay 
     children and parents who have been blinded, paralyzed or 
     otherwise severely injured. The victims who make the least 
     money will suffer the most under this plan. The harm to the 
     kinds of families I represented as a lawyer for nearly 20 
     years will be enormous.
       What the president's proposal won't do is work. Insurance 
     premiums have spiked recently because of insurance companies' 
     losses on their investments, not their losses to victims. In 
     fact, about half the states already have some limits on 
     victim compensation, yet premiums in states with caps average 
     about the same as premiums in states without caps. California 
     finally controlled rates not by attacking victims--that 
     didn't work--but by reforming the insurance industry and 
     rolling back premium increases.
       We need a real solution that frees doctors from crippling 
     insurance costs--without preventing the most badly injured 
     victims from receiving the compensation they deserve.
       That real solution has three elements. Most important, we 
     need to crack down on price gouging by the industry. We also 
     need aggressive action against frivolous lawsuits that don't 
     belong in court--not against the serious lawsuits that bring 
     help to the most badly injured. And finally, we need to 
     reduce the number of medical errors, many made by a very 
     small fraction of the medical profession.
       The most critical step is reforming the insurance industry. 
     Today insurance companies use slow and burdensome processes 
     to discourage both doctors and patients from filing 
     legitimate claims. Worse still, these companies can fix 
     prices and divvy up the country in order to drive up their 
     profits. Even when companies don't explicitly collude, they 
     set their rates based on a trade-group loss calculation that 
     they know other companies will follow. In any other industry, 
     this kind of conduct would be subject to scrutiny under the 
     antitrust laws. But an obscure 1945 law gives insurance 
     companies a broad antitrust exemption. Because of the 
     insurance lobby's influence, Congress has even blocked the 
     Federal Trade Commission from investigating insurance company 
     rip-offs. These special privileges must go.
       Next, we need to prevent and punish frivolous lawsuits. 
     Most lawyers are responsible advocates for their clients, but 
     the few who aren't hurt the real victims, undercutting the 
     credibility of the legal system and clogging our courts. For 
     all his talk about frivolous lawsuits, President Bush does 
     nothing to address them. He's got it backward--instead of 
     cracking down on irresponsible behavior and baseless cases, 
     he's targeting serious victims who win in court and are 
     believed by juries.
       Before a lawyer can bring a medical malpractice case to 
     court, we should require that he or she swear that an expert 
     doctor is ready to testify that real malpractice has 
     occurred. Lawyers who file frivolous cases should face tough, 
     mandatory sanctions. Lawyers who file three frivolous cases 
     should be forbidden to bring another suit for the next 10 
     years--in other words, three strikes and you're out.
       Finally, we can reduce malpractice premiums by helping to 
     reduce malpractice. The Institute of Medicine found that at 
     least 44,000 people die from preventable medical errors every 
     year. In medicine, as in law, a few people cause the most 
     problems: Only 5 percent of doctors have paid malpractice 
     claims more than once since 1990. This same 5 percent are 
     responsible for more than half of all claims paid. One part 
     of the problem is state medical boards whose discipline is as 
     lax as state bar associations'. We need to provide resources 
     and incentives for boards to adopt real standards on the 
     ``three strikes'' model. At the same time, we need to 
     encourage doctors to report more medical errors voluntarily, 
     so we can learn more about systemic problems.
       Together these measures will give relief to most doctors 
     who are suffering under the

[[Page S9079]]

     staggering weight of insurance premiums. But where premiums 
     still cause shortages of medical care, Washington must 
     provide a temporary subsidy so good doctors can continue 
     their essential work. We shouldn't be padding insurers' 
     profits and hurting people who have already suffered 
     immensely, as the president proposes. But we should be 
     protecting good doctors and the patients who depend on them.
       The writer, a Democratic senator from North Carolina, is 
     seeking his party's nomination for president.
  Mr. JOHNSON. Mr. President, I support the bipartisan medical 
malpractice alternative legislation, a bill that is more comprehensive 
than the bill previously being considered on the floor, S. 11, called 
the Patient First Act. I want to thank Senators Durbin and Lindsey 
Graham for their leadership and hard work on this issue, and I am proud 
to be a cosponsor of the alternative, which really begins to address 
the root of the medical malpractice premium problem, rather than just 
attempt a quick fix as does the approach found in Senator Ensign's 
legislation.
  In South Dakota, we already have a cap on noneconomic damages at 
$500,000, which has been in effect since 1997. While some are claiming 
that caps are supposed to reduce premiums doctors pay, this issue is 
not that cut and dried. The Medical Liability Monitor found that in 
South Dakota, prior to 1997, medical malpractice premiums charged by 
some insurers were being maintained or on the decline, while for others 
rates were going up. And these rates varied across specialty. For 
example, in 1996 the premium rate went up for general surgery across 
two insurers, while one company increased premiums for internal 
medicine and OB/GYN and another insurer reduced rates for those exact 
same specialties. Since the implementation of caps in my State, rates 
initially declined, but in 2002 rates jumped as high as 20 percent over 
the previous year. This would indicate that caps are not the quick fix 
that Republicans would like you to believe is needed.
  Generally, my feeling is that caps are really a State issue and that 
we should spend our time focusing on how to prevent the need for 
malpractice in the first place, through measures to reduce medical 
errors and improve patient safety. Beyond my overall view of this 
issue, I am disappointed that our Republican colleagues have taken the 
issue of medical malpractice, which touches the core of these important 
patient care issues, and are using it for politically motivated 
purposes. This legislation has not had any hearings in the Health, 
Education, Labor and Pensions or Judiciary Committee. It has not been 
given careful consideration in a bipartisan way prior to the majority 
leader bringing it to the floor. This is not the way we get things done 
in the Senate and this is one of the reasons why I cannot support S. 
11.
  I also cannot support S. 11 because it is crafted in such a way that 
has broad implications across the health care continuum. This bill's 
supporters will try and tell you that it is only about doctors' 
abilities to continue to provide care to patients. While I do recognize 
that this is of significant concern and support measures to bring down 
the cost of medical malpractice premiums, this bill goes far beyond 
that. S. 11 represents a broad, sweeping initiative that would apply 
not only to lawsuits against doctors, but to all health care lawsuits, 
thereby shielding HMOs, drug companies, nursing homes, hospitals, and 
medical device manufacturers who injure patients.
  And what is equally disturbing is that this so-called fix is not even 
considered the solution by all doctors, some who have conceded that 
this legislation would not reduce their malpractice premiums for 3 or 4 
years. This legislation also discriminates against the most vulnerable: 
the aged, children and low-income. By placing a cap on noneconomic 
damages, it says to those with lesser earning potential--``your lives 
mean less and a small pot of money for the rest of your life is enough, 
irrespective of how much of your quality of life has been taken from 
you.'' I cannot support this mindset and would prefer to approach this 
issue more comprehensively and without discriminatory practices.
  As mentioned, we have learned that caps do not necessarily translate 
to lower premium rates. Studies have examined this issue and results 
are found on both sides, some finding that caps do reduce malpractice 
premiums, while others find the exact opposite. This says to me that we 
do not have the sound evidence needed to say that caps are the way to 
go. Because of this, we must be looking at other creative ways to 
address this issue that is forcing many doctors, especially those in 
high-risk specialties, to leave practice. That is why I support the 
Durbin/Graham alternative, which takes a critical look at the causes of 
high malpractice premiums and seeks to address them.
  The Durbin/Graham alternative does provide some relief to doctors 
through tax credits for malpractice premium rates. It also provides a 
voluntary system to share medical error information through a database 
that is immune from legal discovery and will improve patient safety. It 
addresses issues related to frivolous lawsuits and provides some 
protection from punitive damages for health professionals participating 
in federally funded programs. This alternative finally addresses 
Federal antitrust exemptions enjoyed very broadly by insurance 
companies in an effort to diminish their opportunity to collude and set 
rates. These initiatives get at the root of the medical malpractice 
problem and are a step in the right direction. I urge my colleagues to 
vote against cloture on the motion to proceed to S. 11 and work 
together to embrace the Durbin/Graham alternative.
  Mr. McCAIN. Mr. President, Americans are fortunate to enjoy some of 
the best medical care available in the world. If we do not reform the 
current system, however, our good fortune will not last. Medical 
malpractice reform looms as one of the most critical factors negatively 
impacting our Nation's health care system. In the year 2000, doctors 
alone spent $6.3 billion on medical malpractice insurance coverage. 
That does not take into consideration coverage paid for by hospitals, 
nursing homes, and other groups.
  Originally intended to provide patients with security by improving 
quality and providing fair and equitable compensation for valid claims, 
our Nation's medical malpractice system has only succeeded in adding 
billions of dollars a year to the cost of health care, while reducing 
patient access to physicians and treatment. The current system is 
broken.
  Qualified doctors with years of valuable experience are leaving the 
medical field in droves. Some are opting for early retirement, while 
others are changing fields. Many physicians, particularly those in 
high-risk specialties, are moving to States that have implemented 
reforms or are opting to scale back their practices. Discouraged by the 
current system, many of today's medical students cite medical 
malpractice as a major factor in their choice of fields.
  Rural areas have been hit particularly hard. In Arizona, our rural 
hospitals are struggling to keep qualified doctors. In our border 
region, where hospitals already struggle with the high cost of 
uncompensated care due to illegal immigrant populations, the Copper 
Queen Hospital in Bisbee has been without an obstetrician for over a 
year because of the high cost of medical malpractice insurance. Because 
of this void, pregnant women in southeastern Arizona have had to drive 
extremely long distances to reach the nearest hospital with an 
obstetrician.
  Earlier this year, the daughter of a hospital board member gave birth 
on the side of the highway as she and her husband drove over a mountain 
pass to the nearest hospital in Sierra Vista. Fortunately for Bisbee 
and the surrounding areas, a local community health center, which is 
shielded from high liability costs by Federal law, recently received a 
Federal grant to develop a birthing facility. Now, the community will 
be able to retain obstetricians and pregnant women will be assured 
access to vital prenatal care.
  Unfortunately, patients suffer most from the failures of our current 
system. Not only are patients losing access to qualified doctors, they 
are also losing health care coverage, substantially contributing to the 
rising numbers of uninsured Americans, most recently estimated at over 
41 million. A recent study by Pricewater-
houseCoopers found that 7 percent of the rise in health care costs are 
due to litigation and risk management. Those skyrocketing health care 
costs are

[[Page S9080]]

passed from health insurance companies to employers, making it more 
difficult for American businesses to provide coverage to employees. 
Businesses today pass a larger share of the cost burden on to employees 
than ever before, and many, particularly small businesses, have made 
the difficult decision to drop employee coverage entirely.
  This morning, the Senate voted on the motion to invoke cloture on, S. 
11, the Patients First Act of 2003. I voted to invoke cloture on this 
bill, not because I believe it is the perfect solution to this crisis, 
but because I believe that our Nation's medical malpractice system is 
broken and we must begin debating viable solutions. I have long 
supported tort reform generally, and medical malpractice in particular, 
because the current system is unfair and inefficient.
  Unfortunately, the medical malpractice debate has been polarized by 
two powerful special interest groups, preventing necessary compromise 
and real reform. On one side, the trial lawyers, fearing the loss of 
enormous jury awards, have fought tooth and nail against any cap on 
non-economic damages. Similarly, the insurance industry and other 
medical special interest groups have been equally unwilling to 
compromise on the dollar amount of these caps. As long as this body 
remains polarized in between these two competing interests, we will not 
have real reform and the American people will suffer.
  Under the bill considered today, patients would be able to recover 
the full cost of medical expenses coupled with past and future wage 
losses through unlimited economic damages. To address exorbitant jury 
awards for non-economic damages, this bill, caps non-economic damages 
at $250,000, while allowing states the flexibility to maintain their 
own caps. A federally imposed ceiling would be a tremendous help to 
States like Arizona that require State constitutional amendments in 
order to implement medical liability reform.
  The reality is, we know that caps on damages do successfully reduce 
the cost of medical malpractice insurance. Malpractice rates 
nationally, have risen three times faster than in California, where 
caps have been in place for twenty years. Similarly, a recent study by 
the Agency for Healthcare Research and Quality found that states that 
enacted limits on non-economic damages have 12 percent more doctors per 
capita than states without caps.
  Although I support reform efforts, I am concerned that $250,000 may 
not be a realistic amount at which to cap non-economic damages. I 
recognize that although the state-imposed cap of $250,000 has 
functioned well in California, there are also certain medical errors 
which are difficult, if not impossible to put a price tag on.
  Additionally, I believe any medical malpractice reform legislation 
must be coupled with meaningful measures to address the alarming 
numbers of medical errors in this country. A 1999 study by the 
Institute of Medicine found that upwards of 98,000 people a year die of 
medical errors. Congress must address this escalating problem, 
particularly in the context of the current debate. Bipartisan 
legislation establishing medical error reporting requirements passed 
the House and will hopefully pass the Senate later this year, however 
much more can and should be done on this issue.
  I believe a majority of my colleagues in the Senate agree that there 
does exist a serious problem in our Nation, that patients and doctors 
are suffering as a result, and something must be done. When the Senate 
voted this morning to invoke cloture, this bill did not have the votes 
necessary to continue debate. In fact, it did not even garner a 
majority vote. If we are truly committed to addressing this important 
issue, we must put special interests and partisan politics aside and 
work together to craft an equitable compromise.
  Mr. LEAHY. Mr. President, I am disappointed that the majority appears 
to be playing politics with the medical malpractice insurance debate. 
This is a complex issue, and the bill before us would encroach on the 
rights of every state and would take away the legal rights of the 
American people. Great care is in order as Congress considers such 
steps. But instead of introducing a bipartisan bill and sending it 
through the committee process to reach consensus, the majority is 
rushing a partisan bill directly to the Senate floor. That is highly 
unfortunate, because our health care system is in crisis. We have heard 
that statement so often that it has begun to lose the force of its 
truth, but that truth is one we must confront, and the crisis is one we 
must abate.
  Dramatically rising medical malpractice insurance rates are forcing 
some doctors to abandon their practices or to cross state lines to find 
more affordable situations. Patients who need care in high-risk 
specialties--like obstetrics--and patients in areas already underserved 
by health care providers--like many rural communities--are too often 
left without adequate care.
  We are the richest and most powerful nation on earth. We should be 
able to ensure access to quality health care to all our citizens and to 
assure the medical profession that its members will not be driven from 
their calling by the manipulations of the malpractice insurance 
industry.
  The debate about the causes of this latest insurance crisis and the 
possible cures grows shrill. I had hoped for a calmer and more 
constructive discussion within the Senate Judiciary Committee and on 
the Senate floor. My principal concerns are straightforward: That we 
ensure that our nation's physicians are able to provide the high 
quality of medical care that our citizens deserve and for which the 
United States is world-renowned, and that in those instances where a 
doctor does harm a patient, that patient should be able to seek 
appropriate redress through our court system.
  To be sure, different States have different experiences with medical 
malpractice insurance, and insurance remains largely a State-regulated 
industry. Each State should endeavor to develop its own appropriate 
solution to rising medical malpractice insurance rates because each 
State has its own unique problems. Some States--such as my own, 
Vermont--while experiencing problems, do not face as great a crisis as 
others. Vermont's legislature is considering legislation to find the 
right answers for our State, and the same process is underway now in 
other States.
  In contrast, in States such as West Virginia, Pennsylvania, Florida, 
and New Jersey, doctors are walking out of work in protest over the 
exorbitant rates being extracted from them by their insurance carriers.
  Thoughtful solutions to the situation will require creative thinking, 
a genuine effort to rectify the problem, and bipartisan consensus to 
achieve real reform. Unfortunately, these are not the characteristics 
of the bill before us. Indeed, S. 11 is a partisan bill that was 
introduced only a few days ago without any committee consideration. 
Ignoring the central truth of this crisis--that it is a problem in the 
insurance industry, not the tort system--the majority has proposed a 
plan that would cap non-economic damages across the nation at $250,000 
in medical malpractice cases. The notion that such a one-size-fits-all 
scheme is the answer runs counter to the factual experience of the 
states.
  Most importantly, the majority's proposal does nothing to protect 
true victims of medical malpractice and nothing to prevent malpractice 
in the first place. A cap of $250,000 would arbitrarily limit 
compensation that the most seriously injured patients are able to 
receive. The medical malpractice reform debate too often ignores the 
men, women and children whose lives have been dramatically--and often 
permanently--altered by medical errors. The experience of Linda 
McDougall, who testified a few months ago before the Senate Judiciary 
Committee, is just one tragic example of such an error. Mrs. McDougal 
is recovering from an unnecessary double mastectomy, and her testimony 
reminded us all of the real-life consideration of these issues. 
Arbitrarily limiting injured patients' remedies under the law without 
addressing the system-wide medical errors that result in patient harm 
and death is a recipe for failure.
  The majority's proposal would prevent individuals like Linda 
McDougall--even if they have successfully made their cases in courts of 
law--from receiving adequate compensation. We

[[Page S9081]]

are fortunate in this nation to have many highly qualified medical 
professionals, and this is especially true in my own home state of 
Vermont. Unfortunately, good doctors sometimes make errors. It is also 
unfortunate that some not-so-good doctors manage to make their way into 
the health care system as well.
  While we must do all that we can to support the men and women who 
commit their professional lives to caring for others, we must also 
ensure that patients have access to adequate remedies should they 
receive inadequate care.
  High malpractice insurance premiums are not the direct result of 
malpractice lawsuit verdicts. They are the result of investment 
decisions by the insurance companies and of business models geared 
toward ever-increasing profits as well as the cyclical hardening of the 
liability insurance market. In cases where an insurer has made a bad 
investment, or has experienced the same disappointments from Wall 
Street that so many Americans have, it should not be able to recoup its 
losses from the doctors it insures.
  The insurance company should have to bear the burdens of its own 
business model, just as the other businesses in the economy do. And a 
nationwide arbitrary capping of awards available to victims--as the 
majority has proposed here this week--should not be the first and only 
solution turned to in a tough medical malpractice insurance market. The 
problem at hand deserves thoughtful and collaborative consideration in 
committee to achieve a sensible solution that is fair to patients and 
that supports our medical professionals in their ability to practice 
quality health care.
  One aspect of the insurance industry's business model requires a 
legislative correction--its blanket exemption from federal antitrust 
laws. Insurers have for years--too many years--enjoyed a benefit that 
is novel in our marketplace. The McCarran-Ferguson Act permits 
insurance companies to operate without being subject to most of the 
federal antitrust laws, and our nation's physicians and their patients 
have been the worse off for it.
  Using their exemption, insurers can collude to set rates, resulting 
in higher premiums than true competition would achieve--and because of 
this exemption, enforcement officials cannot investigate any such 
collusion. If Congress is serious about controlling rising premiums, we 
must objectively limit this broad exemption in the McCarran-Ferguson 
Act.
  In February, I introduced the ``Medical Malpractice Insurance 
Antitrust Act of 2003,'' S. 352. I want to thank Senators Reid, 
Kennedy, Durbin, Edwards, Rockefeller, Feingold, Boxer and Corzine for 
cosponsoring this essential and straightforward legislation. Our bill 
modifies the McCarran-Ferguson Act with respect to medical malpractice 
insurance, and only for the most pernicious antitrust offenses: price 
fixing, bid rigging, and market allocations. Only those anticompetitive 
practices that most certainly will affect premiums are addressed.
  I am hard-pressed to imagine that anyone could object to a 
prohibition on insurance carriers' fixing prices or dividing 
territories. After all, the rest of our nation's industries manage 
either to abide by these laws or pay the consequences.
  Many State insurance commissioners police the industry well within 
the power they are accorded in their own laws, and some states have 
antitrust laws of their own that could cover some anticompetitive 
activities in the insurance industry. Our legislation is a scalpel, not 
a saw. It would not affect regulation of insurance by state insurance 
commissioners and other state regulators. But there is no reason to 
continue, unexamined, a system in which the Federal enforcers are 
precluded from prosecuting the most harmful antitrust violations just 
because they are committed by insurance companies.
  Our legislation is a carefully tailored solution to one critical 
aspect of the problem of excessive medical malpractice insurance rates. 
I had hoped for quick action by the Judiciary Committee and then by the 
full Senate to ensure that this important step on the road to genuine 
reform is taken before too much more damage is done to the physicians 
of this country and to the patients they care for.
  But our legislation to narrow this loophole in the nation's anti-
trust laws for medical malpractice insurers has languished for months 
in the Senate Judiciary Committee. Instead of conducting hearings and a 
markup on our bill, the majority now rushes a ``tort reform'' agenda 
item to the floor without any committee consideration.
  I want to comment for a moment on why committee consideration is so 
important to building the consensus needed to enact serious legislation 
to address the serious issue of rising medical malpractice premiums. 
During the last Congress, some of my colleagues on the other side of 
the aisle complained about the lack of committee consideration of 
prescription drug legislation. This year, we had committee 
consideration of a bipartisan bill and the Senate passed prescription 
drug legislation.
  Last year, during that debate, Senator Lott said: ``If we bring these 
important issues to the Senate floor without them having been worked 
through committee, it is a prescription for a real problem . . . .''
  Last year on the Senate floor, Senator Nickles declared: ``What 
happened to the committee process? Shouldn't every member of the 
Finance Committee have a chance to say, I think we can do a better job? 
Maybe we can do it more efficiently or better. No, we bypass the 
committee and take it directly to the floor.''
  And Senator Snowe, one of the Senate's most thoughtful members, 
wisely pointed out: ``I think each of us here knows that without a 
markup in the committee we are creating a predetermined train wreck. We 
are heading for a train wreck because we are creating a process 
designed for failure. It is designed for politics. It is not designed 
for creating a solution to a serious problem.''
  If Congress is serious about controlling rising medical malpractice 
insurance premiums, then we must limit the broad exemption to federal 
antitrust law and promote real competition in the insurance industry, 
as well as attack this problem at its core by reducing medical errors 
across our health care system. Unfortunately, the partisan bill before 
us is not designed for creating a solution to a serious problem. 
Instead, it is designed purely for politics.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, how much time is remaining on this side?
  The PRESIDING OFFICER. Four minutes.
  Mr. DURBIN. On the other side?
  The PRESIDING OFFICER. They have 10 minutes.
  Mr. DURBIN. I am happy to yield to the other side unless they are 
going to use the entire 10 minutes and then I will use my 4.
  Mr. McCONNELL. I ask the Senator from Illinois, what is the time 
situation?
  Mr. DURBIN. Ten minutes on his side, 4 minutes on my side.
  Mr. McCONNELL. And the suggestion of the Senator was?
  Mr. DURBIN. If the Senator is going to divide it and would like to 
have one speaker and then I will speak and he can close.
  Mr. McCONNELL. I was going to split the time with Senator Ensign and 
use the last 5 minutes. Does the Senator from Illinois want to be the 
last speaker?
  Mr. DURBIN. I defer to the Senator. I believe that as proponents of 
the bill, the Senator should have the last word. If the Senator is 
going to divide his time, I would just suggest that one of his speakers 
go first, I speak, and then the Senator be the last speaker.
  Mr. McCONNELL. Let me ask if my friend from Nevada is ready to 
proceed?
  He will be ready momentarily.
  Mr. DURBIN. I will use my 4 minutes.
  First, I thank my colleagues on both sides of the aisle. Although we 
disagree on the approach, and I certainly do not support S. 11, I 
encourage all of my colleagues in the Senate to join me in stopping 
this bill from moving forward. This is too important to come to the 
floor without a committee hearing, without deliberation. It is unfair 
to address the medical malpractice premium crisis in America by simply 
saying that victims of malpractice shall be limited in what they can 
receive from a court.

[[Page S9082]]

It is unfair for us to put ourselves in the place of a jury. If we are 
going to deal with the malpractice insurance crisis that faces us, let 
us do it in an honest and complete fashion.
  Early in this debate, I told the story about David from the small 
town in downstate Illinois. At 6 years of age he went in with a high 
fever and because of medical negligence and medical errors, this 6-
year-old boy became a quadriplegic. He is unable to communicate with 
others. He breaths through a tracheotomy stoma and is fed through a 
gastrointestinal tube. They believe he understands what is being said, 
but he is unresponsive. He is now 17 years of age. His mother has quit 
her job at a local college to be with him full time.
  The decision of this bill is that in cases such as David's what they 
are going to go through the rest of their lives, David and his family, 
is worth no more than $250,000 in pain and suffering.
  This verdict by this jury in the Senate is unfair. I say to doctors 
across America who have a genuinely serious problem that needs to be 
addressed, the love and compassion you give to your patients, the 
commitment you made to your patients is inconsistent with the message 
of this bill. I believe doctors in my home State and those I have met 
with in other places are some of the finest people with whom I have 
ever worked. I genuinely want to work with them to deal with 
malpractice premiums that are much too high, by reducing the incidence 
of malpractice, by saying to insurance companies, just because you made 
a bad investment does not mean you will run a doctor out of business--
that is what is happening with these high premiums--and by saying as 
well to the legal profession, the bad actors have to get out of the 
courtroom; stop harassing doctors with frivolous lawsuits. That is 
relatively uncommon, but where it occurs in one case, that is one case 
too many.
  We need to come together after this bill is stopped today in a good-
faith, bipartisan effort as we did on the terrorism insurance issue. We 
need to bring in the AMA, the bar association, the trial lawyers, the 
insurance companies, and all parties that can come to a good solution. 
We need to do it quickly. We need a tax credit for doctors right now. 
We do not need to pass a bill that might help them 8 or 10 years from 
now; we need to pass a tax credit now, so they can get through this 
troublesome period where the insurance companies have seen the bottom 
fall out of their investment and are charging these high premiums. That 
is the fair way to deal with it.
  Please, do not close off a day in court for deserving victims of 
medical malpractice.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, what is this about today? What are we 
really talking about? We are talking about access to health care by 
patients. We have enacted reasonable limits in this bill so the crisis 
facing 19 States and the patients in 19 States across this country can 
be resolved.
  The problem is caused by out-of-control jury awards and frivolous 
lawsuits which are cheaper to settle--and those get settled all the 
time--than they are to fight. The reason they will settle them is the 
potential huge award and the huge downside risk they have down the 
line. A lot of insurance companies just settle those and pass the 
higher rates on to doctors. That has led to many physicians leaving 
those 19 States in crisis and a lot of new doctors not going into the 
specialties which are in short supply.
  If we ask ourselves the fundamental question, Is there a shortage of 
doctors or is there a shortage of lawyers? we do not have a shortage of 
lawyers in my State home state of Nevada, or in any other State, as far 
as I know. We do not have any shortage of people going into the 
practice of law. We do have a shortage of people going into the 
practice of a lot of the specialties in health care. The reason is that 
we have a jury system that is out of balance. We did not used to live 
in this litigious society of today. People are so sue happy and the 
system is set up to encourage frivolous lawsuits.
  California and Colorado are the two best examples we have of medical 
liability reform that has been on the books long enough. We know it 
works. Victims get what they deserve in those States, but the system is 
balanced so doctors can afford their premiums on medical liability. 
That is what the bill before the Senate today lays out, a model very 
similar to Colorado and California for the rest of the country.
  I encourage all of our colleagues to at least vote for the motion to 
proceed to the bill so we can have a full debate with amendments to 
proceed to solve this severe crisis we have in access to health care 
across the country.
  The PRESIDING OFFICER. The assistant majority leader.
  Mr. McCONNELL. The vote we are about to have is not about the details 
of the underlying bill, it is about whether we think there is a medical 
malpractice crisis in America and whether we ought to do something 
about it. If we were able to get on the bill, it would obviously be 
open to amendment and we would see how the Senate felt, that some issue 
ought to be addressed.
  The Senator from Nevada, the floor leader on this subject, says 19 
States are currently in crisis and 25 are on the way to crisis, while 
only 6 of our 50 States are OK as far as the price of medical 
malpractice premiums not driving physicians out of work is concerned.
  It has been incredibly stated on the other side of the aisle by 
numerous speakers that this crisis has nothing to do with runaway 
judgments. I don't know how you can reach that conclusion. The people 
at CBO and the Department of Health and Human Services and the Joint 
Economic Committee, insurance commissioners, actuaries, all believe 
this crisis is related to runaway judgments.
  California, which we keep referring to, has the model system after 
which the underlying bill has been modeled. My friends on the other 
side of the aisle think this crisis has been created by something else. 
They have been suggesting it is bad returns from the stock market or 
insurance company collusion, or a cadre of quacks who are causing 
problems for medicine. I don't know whether all of that has made some 
contribution, but we know there is one solution that works, and that is 
the California approach. That is what is in the underlying bill.
  We ought to at least recognize this is a national crisis, a national 
problem that ought to be dealt with at the national level. We will have 
an opportunity to find out whether the Senate agrees with that shortly 
when we vote on cloture on the motion to proceed. I hope the Senate 
will give us an opportunity to get to the underlying bill. It would 
then be open to all kinds of amendments and we could begin to proceed, 
as we normally do in the Senate, in crafting legislation to deal with 
national problems.
  We urge our colleagues to vote for cloture on the motion to proceed.
  Mr. FRIST. Mr. President, today we will be voting on a cloture motion 
to allow the Senate to proceed to debate S. 11, the Patients First Act. 
I want to strongly urge my colleagues to vote for the motion to 
proceed.
  We have had a good debate over the last three days, and it is clear 
that right now patients across the country are facing a crisis of 
access to quality health care. Congress needs to act.
  The upcoming vote will allow us to fully debate this critical issue. 
If action is delayed, we know what will happen: Patients will suffer, 
doctors will continue to flee their practices, and more States will be 
added to the AMA crisis list. Since we last debated this issue seven 
more States have joined the list, that is nearly a 60 percent increase 
over last year.
  I have received letters from doctors all over America, including from 
my home State of Tennessee. Premiums in Tennessee have gone up 68 
percent over the last four years, and Tennessee is not even considered 
a crisis state by the AMA yet.
  One doctor from Waverly, TN writes:

       My insurance premiums as a general surgeon have jumped over 
     70 percent in the last four years. The current crisis has 
     forced me to limit doing any moderate to high risk surgery . 
     . .
       There are counties around mine that have lost the services 
     of their general surgeons who have opted to limit their 
     practices to family practices . . . rather than continue to 
     pay the high premiums that are prohibitive for a surgeon in 
     rural Tennessee.

  Another doctor from Madisonville, TN writes:


[[Page S9083]]


       My wife and I came to Madisonville, Tennessee, 24 years ago 
     as national health service corps doctors. We helped start the 
     Women's Wellness and Maternity Center, Tennessee's first out 
     of hospital birth center. We depend on the obstetrical 
     service at Sweetwater Hospital for C-sections and 
     consultation.

  This doctor goes on tell me that because of high malpractice premiums 
Sweetwater has only one remaining obstetrician who is now forced to 
bear full responsibility for providing 24-hour maternity coverage and 
that efforts to recruit additional doctors have failed.
  As these real life stories show, this health care crisis is real and 
it is spreading. The current medical liability system is costly, 
inefficient and hurts all Americans. In addition to damaging access to 
medical services, the current medical malpractice system creates 
problems throughout the entire health care system.
  It indirectly costs the country billions of dollars every year in 
defensive medicine. The fear of lawsuits forces doctors to practice 
defensive medicine by ordering extra tests and procedures. Though the 
numbers are hard to calculate, well-researched reports predict savings 
from meaningful reform at tens of billions of dollars per year.
  It directly costs the taxpayers billions. The CBO has estimated that 
reasonable reform will save the federal government $14.9 billion over 
10 years primarily through savings in Medicare and Medicaid.
  It impedes efforts to improve patient safety. The threat of excessive 
litigation discourages doctors from discussing medical errors in ways 
that could dramatically improve health care and save hundreds or 
thousands of lives. I am a strong supporter of patient safety 
legislation which I hope we will pass this year. But in addition to 
patient safety legislation, we need to address the underlying problem--
our liability system.
  We must reform this broken liability system. That is why I strongly 
support the Patients First Act. I want to thank my colleague, Senator 
McConnell, the majority whip, who skillfully led this debate. I also 
want to thank Chairman Gregg and Chairman Hatch for their longstanding 
leadership of this issue, and Senator Ensign, the lead sponsor of S. 
11, who has seen the current crisis close up in his own State of 
Nevada. And finally, I want to thank Senator Dianne Feinstein of 
California. Her State has been the model of medical liability reform 
and has demonstrated that commonsense reforms work. I look forward to 
continuing to work with Senator Feinstein on this issue. We share the 
goal of putting patients first.
  The Patients First Act will protect access to care and ensure that 
those who are negligently injured are fairly compensated. Again, I 
encourage my colleagues to move this legislation forward. We cannot 
afford further delay.
  I yield the remainder of our time.


                             Cloture Motion

  The PRESIDING OFFICER. All time having expired, under the previous 
order, the clerk will report the motion to invoke cloture.
  The bill 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 Inhofe, Chuck Hagel, Jon Kyl, Judd Gregg, Pat 
           Roberts, John E. Sununu.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to S. 11, the Patients First Act, shall be brought to 
a close?
  The yeas and nays are ordered under the rule. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Florida (Mr. Graham), the 
Senator from Massachusetts (Mr. Kerry), and the Senator from Georgia 
(Mr. Miller) are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Florida (Mr. Graham) and the Senator from Massachusetts (Mr. Kerry) 
would each vote ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 49, nays 48, as follows:

                      [Rollcall Vote No. 264 Leg.]

                                YEAS--49

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Campbell
     Chafee
     Chambliss
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Fitzgerald
     Frist
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Voinovich
     Warner

                                NAYS--48

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Breaux
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Corzine
     Daschle
     Dayton
     Dodd
     Dorgan
     Durbin
     Edwards
     Feingold
     Feinstein
     Graham (SC)
     Harkin
     Hollings
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Shelby
     Stabenow
     Wyden

                             NOT VOTING--3

     Graham (FL)
     Kerry
     Miller
  The PRESIDING OFFICER. On this vote, the yeas are 49, the nays are 
48. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.

                          ____________________