[Congressional Record Volume 150, Number 19 (Monday, February 23, 2004)]
[Senate]
[Pages S1422-S1447]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 HEALTHY MOTHERS AND HEALTHY BABIES ACCESS TO CARE ACT OF 2003--MOTION 
                               TO PROCEED

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
resume consideration of the motion to proceed to the consideration of 
S. 2061.
  Mr. FRIST. Mr. President, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, let me welcome everybody back from the 
Presidents Day recess. I also thank Senator Breaux and congratulate him 
on the delivery of George Washington's Farewell Address. He is the 
112th Senator to give the address. The first reading of George 
Washington's address actually occurred on February 22, 1862, during a 
joint session of Congress and was given by the Secretary of the Senate. 
Beginning in 1893, the Senate made the reading of the address an annual 
tradition. And since that time, each year, in an alternating fashion 
between the parties, George Washington's birthday is observed by the 
reading of the 7,641-word address. I commend Senator Breaux for his 
contribution today.
  Today the Senate will begin consideration of the motion to proceed to 
S. 2061, the OB/GYN medical liability bill. Chairman Gregg is here to 
manage debate, and I encourage Senators to come to the floor to debate 
this sorely needed women's health access issue.
  Due to objections on the other side of the aisle, it was necessary to 
file a cloture motion on this pending motion to proceed. That cloture 
vote on proceeding to the OB/GYN medical malpractice bill is scheduled 
for tomorrow at 5 p.m. Therefore, there will be additional debate time 
tomorrow before the vote. However, I know many Members are interested 
in this bill and hopefully are prepared to speak today. We will have no 
rollcall votes today. The cloture vote will be the first vote tomorrow.
  Over the next few minutes I would like to make a statement on the 
Healthy Mothers and Healthy Babies Access to Care Act.
  Mr. President, our medical litigation system is failing the American 
public. It is failing our communities, our hospitals, our doctors, and 
our families. Most importantly, it is failing our patients. Its purpose 
should be to promote the common good and improve the health care of all 
Americans through the fair and efficient resolution of meritorious 
medical negligence claims. But instead of accomplishing this noble 
goal, our litigation system is out of control. It is broken. It is 
causing a health care crisis. Due to this broken system of medical 
justice, medical liability premiums are skyrocketing. The result: The 
system is in crisis.
  The ultimate victims are the patients who see that their access to 
care being threatened and in some cases their access to care is 
disappearing altogether. In addition, this ailing system hurts our 
Nation even more by directly and indirectly costing us billions of 
dollars. The situation is grave. It is being brought to the Senate 
floor because it is grave, because the system is broken, and because 
the crisis is getting worse by the day. Every day that we talk without 
acting is a day of continued decline.
  We have all seen the headlines of the horror stories of hospitals 
closing obstetric wards; of trauma centers having to shut their doors 
because of the liability crisis; of expectant mothers unable to find 
obstetricians, having to switch from obstetrician to obstetrician 
because their obstetrician is having to leave town or leave their 
practice; the stories of doctors dropping services of specialized care; 
the stories of doctors having to move from a State where the liability 
premiums are so high that they can't afford it to other States where 
effective liability reform may have already taken place and they have 
lower premiums. The headlines go on and on and on. Almost daily there 
are fresh stories and new victims.
  The problems are so severe that Time magazine, in its June 9 cover 
article, devoted the article and the front page to this very problem. 
The American Medical Association lists 19 States where access to 
quality care is in serious jeopardy right now. As a physician, as a 
doctor, this crisis and the worsening of this crisis really strikes 
home to me personally. When I go back home or travel around the country 
and talk to my physician colleagues, they tell me of personal stories 
that are causing changes in the way they practice medicine. Many 
doctors consider the current medical litigation system as the single 
greatest threat to providing patients today with affordable, high-
quality health care.
  At first, the problem of skyrocketing medical liability costs 
presents doctors with uncomfortable choices. But in the end, it is the 
patients who are hurt. It is the patients who suffer. Skills of 
physicians are redirected. They leave their practice. They are no 
longer available to give care and patients receive less care. No longer 
is this a problem of an additional expense of doctors or for doctors 
all across the country; it is now an issue of health care for all.

  What makes this situation so tragic is that highly qualified and 
committed doctors are literally being forced from their fields of 
medicine, fields they have devoted their lives to, fields they cherish. 
We are not talking about a few bad doctors who are leaving. Rather, we 
are talking about the very best men and women in the health care field 
today who have devoted their entire professional lives to healing 
others. These good men and women don't want to drop these specialized 
services such as trauma care, delivering babies, working in emergency 
rooms. They don't want to move from already underserved areas, either 
urban or rural. They don't want to stop seeing those expectant mothers. 
They don't want to be unavailable if somebody comes to a trauma center 
or to an emergency room.
  Tragically, and all too often, the current liability system leaves 
them with no choice. The current system doesn't single out bad doctors 
or negligent acts or poor quality of medicine. Our medical litigation 
system has not made medical care in the United States safer or better. 
In fact, in many cases it has made care just the opposite--less safe.
  How? By discouraging doctors from sharing information that could 
prevent medical errors and by encouraging doctors to order unnecessary 
and costly tests that sometimes do more harm than good. The exploding 
costs hit almost all doctors and hurt patients by driving up 
unnecessarily the cost of medical care of everyone who is listening to 
me right now. Your health care costs are higher because of these 
unnecessary and frivolous lawsuits. You are being affected. Our current 
medical litigation system is the root cause of this crisis. It is an 
inefficient system that is full of perverse incentives. The current 
system hurts everyone seeking access to quality and affordable health 
care, and it hurts the very negligently injured patients it is supposed 
to be helping.
  The system encourages lawsuit abuse by rewarding trial lawyers who 
file huge claims in friendly venues in search of the big payout. These 
lawyers often pocket up to 40 percent of any settlement or any payment 
the injured patients receive. That is 40 cents on the dollar that the 
trial lawyer pockets that does not get to that injured patient.
  At the same time, many of the negligently injured patients--those who 
deserve to be compensated--never receive any compensation at all 
because their legitimate claims are too small for that personal injury 
lawyer who is out there looking for his or her big payday.
  (Mr. ROBERTS assumed the Chair.)
  The system compensates a few at the expense of the many. The effects 
of these massive suits are staggering. Between 1995 and 2002, the 
average claim payout for medical malpractice jumped 83 percent. Between 
1997 and 2002, the percentage of medical malpractice payments of a 
million dollars or more more than doubled.
  The mere threat of huge jury awards forces many doctors and insurance 
companies to settle cases for large amounts, even if they are not 
guilty.

[[Page S1423]]

The current system encourages frivolous lawsuits, unnecessary lawsuits. 
Most of the cases filed in U.S. courts are without merit, with almost 
two-thirds being dropped or dismissed; that is, two out of three are 
being dropped or dismissed. Only 1 out of 20, or 5 percent of cases, 
actually go on to trial, and a staggering 80 percent of those cases are 
won by the defendant. These numbers are clear evidence of the rampant 
abuse of the current system, and the system must be reformed.
  It should be no surprise that this excessive litigation is forcing 
malpractice premiums to rise dramatically. In 2002, physicians in many 
States saw their premium rates rise by 30 percent or more. In some 
States, for some specialties, malpractice insurance is rising by as 
much as 300 percent per year.
  We debated this issue last July with a comprehensive bill, S. 11, the 
Patients First Act. That broad, comprehensive reform measure was 
designed to put our medical litigation system back to work for all 
Americans. Bringing the bill forward in July was the first time that 
the Senate had ever considered comprehensive medical litigation reform 
as its own freestanding bill. Unfortunately, the measure was never 
fully debated, as opponents of reform blocked it by filibustering the 
motion to proceed.
  Since that time, the horror stories have not stopped. In fact, they 
have increased. Because this issue is so critical to the health of 
Americans, and because this crisis continues to escalate, we will try 
once again to address it on the floor of the Senate.
  This time, instead of bringing up a broad, comprehensive bill and 
letting it suffer from the same political attacks as before, we have 
narrowed our focus on one of the groups most severely hurt by the 
crisis, obstetricians and gynecologists. More importantly, we want to 
focus specifically on the health care needs of women and children and 
babies. The underlying bill, the Healthy Mothers and Healthy Access to 
Care Act of 2003, is narrowly tailored to focus on obstetricians, 
gynecologists, and other doctors who perform these services. In the 
more narrow scope, the reform measures are almost identical to the ones 
in the more comprehensive bill, S. 11.
  OB/GYNs, by the very nature of their work, are a higher risk 
specialty group, so it is understandable that their liability premiums 
would be somewhat higher than lower risk doctors. However, the amounts 
that OB/GYNs are paying throughout the country for liability insurance 
today are staggering. For example, locally, in Virginia, OB/GYNs are 
paying up to $84,000 in medical liability premiums per year. At the 
outset, I will say all OB/GYNs have to have liability insurance. Today, 
all physicians have to buy medical liability malpractice insurance to 
practice. Locally, it is $84,000. In New York, they are paying up to 
$124,000 per year. In Pennsylvania, they are paying up to $153,000 per 
year. In Florida, OB/GYNs are now paying up to an astonishing $250,000 
in premiums each and every year to stay in the practice of delivering 
babies. That is a quarter of a million dollars every year that 
obstetricians are paying in Florida.
  I wish to stress once again that these are payments the doctors are 
making merely to purchase the liability insurance. Whether or not they 
have ever had a case brought against them, whether or not there has 
ever been a medical error or mistake made at all, this is what many 
obstetricians are having to pay in these States. There is no added 
value in that $250,000 to health care. These payments are not helping 
the patients live better lives or receive higher quality of health 
care, and these amounts are not being paid just by a few bad doctors. 
They are being paid by doctors who have never been sued, who are the 
best in their profession, who have dedicated their lives to helping 
women and children.

  Because of these skyrocketing premiums and the constant threat of 
litigation, many obstetricians are leaving their practice because they 
simply cannot afford it. Who can blame them? If an obstetrician 
delivers 100 babies a year, and let's say just in Florida they are 
paying $250,000 for that opportunity to deliver babies, that is a tax 
of over $2,000 each time that obstetrician delivers a baby. If you are 
a mother listening, or an expectant mother who is getting ready to go 
in the hospital, I am saying that there is an additional $2,000 tax 
that the doctor is paying, which may well be passed on to you because 
somebody has to pay it. That is money that doesn't add to the care of 
your baby, or to the care of the delivery, or to the safety of the 
delivery, or to health care itself.
  Women living in rural areas have an additional problem. They are 
finding now that there are too few doctors to deliver the babies in 
these rural communities. By now, most of my colleagues have heard the 
horror stories of women having to drive hours just to see an 
obstetrician, or in the course of a 9-month pregnancy, having two, 
three, four, or five obstetricians because many doctors are having to 
leave either a region or the practice altogether. A June 9 Time 
magazine article tells the tragic story of an expectant mother in rural 
Arizona having to drive 2 hours on a desolate highway just to see a 
doctor.
  This should not happen in America. We should be encouraging 
physicians to practice in rural, underserved areas, not chasing them 
away with the threat of frivolous lawsuits. It should be no surprise 
that the American College of Obstetricians and Gynecologists is one of 
the strongest supporters of meaningful medical liability reform. Of 
course, they support this narrowly tailored bill. Their primary concern 
is women's access to affordable, quality health care. They are uniquely 
situated to understand the threat the current system has placed on 
women's health and babies' health, and they are demanding action by 
Congress. They will not tolerate filibusters or blocking this issue. I 
urge my colleagues to listen to their unique concerns.
  In a statement to the Senate Judiciary and HELP Committees last year, 
the American College of Obstetricians and Gynecologists very clearly 
outlined the problem facing women. They said:

       An ailing civil justice system is severely jeopardizing 
     patient care for women and their newborns. Across the 
     country, liability insurance for obstetricians-gynecologists 
     has become prohibitively expensive. Premiums have tripled and 
     quadrupled practically overnight. In some areas, OB/GYNs can 
     no longer obtain liability insurance at all, as insurance 
     companies fold or abruptly stop insuring doctors.
       When OB/GYNs cannot find or afford liability insurance, 
     they are forced to stop delivering babies, curtail surgical 
     services, or close their doors. The shortage of care affects 
     hospitals, public health clinics, and medical facilities in 
     rural areas, inner cities, and communities across the 
     country.

  These are the words of the American College of Obstetricians and 
Gynecologists, the ones on the front line in women's health care today.
  The system is broken. The system is hurting women and babies today. 
This was very clearly spelled to the Senate Judiciary and HELP 
Committees last year.
  I have a series of letters from doctors in Tennessee and, indeed, 
from around the country. At the appropriate time, I will enter several 
of these letters into the Record rather than take the time now because 
there are Senators in the Chamber who wish to debate this particular 
issue. Let me simply say that as a physician, as majority leader, as a 
representative of the people of the great State of Tennessee, I have 
letters from Paris, TN, from Athens, TN, Shelbyville, TN, from Memphis, 
TN, from obstetricians who are basically saying there is a crisis going 
on and asking that we do something about it.
  I do hope the opponents of reform at least acknowledge the severity 
and gravity of the problem and don't run from it once again. We must 
acknowledge the symptoms of the crisis before we start to address its 
cause. Unfortunately, these horror stories are truly just the tip of 
the iceberg of the problems caused by our broken litigation system. The 
system costs our country directly and indirectly billions of dollars--
wasted dollars, I would argue--each year. These costs are the sort of 
costs that don't find their way into letters to us as elected officials 
or into newspaper articles, but they hurt the American people.
  The fear of these outrageous lawsuits forces doctors, for example, to 
practice defensive medicine. Slowly, but surely, people are 
understanding what defensive medicine is. As a doctor, I know these 
pressures all too well.
  In order to avoid lawsuits--frivolous lawsuits--and to make sure they 
would

[[Page S1424]]

be fully protected in the event they were called into question by an 
unnecessary or frivolous lawsuit, we find extra tests and procedures 
are ordered. They are unnecessary to the care of that particular 
patient or that particular patient's problem. It is a waste. Yet the 
system we have today incentivizes those unnecessary tests.
  These extra steps add little, if anything, to the quality of health 
care, but they add a lot to the bottom line of health care costs 
because hundreds of thousands of doctors actually order these 
unnecessary tests. The cost adds up.
  We all hear of the $700 CAT scan or MRI scan for a routine headache 
that an emergency physician orders simply out of practicing defensive 
medicine. It is no surprise to me that surveys show 75 percent or more 
of doctors acknowledge practicing defensive medicine.
  The exact number is hard to calculate, but reports have put the cost 
of defensive medicine at tens of billions of dollars per year. When you 
realize that three out of four doctors frequently order tests or 
procedures, these total dollar figures, indeed, are realistic. In fact, 
a recent Government report estimated reasonable liability reform would 
save the country health care costs of $70 billion to $126 billion per 
year in defensive medicine expenditures.
  In addition to these massive indirect costs, the Federal Government 
would save over $14 billion directly over 10 years with comprehensive 
liability reform, according to the Congressional Budget Office. The CBO 
attributes most of these savings to the Medicare and Medicaid programs 
which would experience lower health care costs. The Federal Government 
would also realize savings from lower costs of health care benefits for 
Federal employees.
  The current medical litigation system also impedes our ability to 
improve patient safety. The threat of excessive litigation by 
unscrupulous lawyers discourages doctors from openly discussing medical 
errors in ways that, if that discussion could take place, would 
dramatically improve health care delivery in this country.
  These facts were outlined and well documented in the 1999 Institute 
of Medicine report ``To Err Is Human.'' That is why in addition to the 
reforms in this bill which hopefully we will be considering on the 
floor of the Senate, most of us are strong supporters--or we should 
be--of S. 720, the Patient Safety and Quality Improvement Act. This is 
vital legislation that will encourage a culture of safety and quality 
by providing for voluntary reporting of patient safety data without the 
fear of being sued.
  Some of the opponents of the legislation we are debating today will 
try to confuse the medical malpractice issue with patient safety. If 
you listen closely, you will hear them say, in effect, that we need to 
maintain our broken medical liability system in order to reduce medical 
mistakes. Do not be misled. This argument amounts to nothing more than 
defending the status quo. In fact, as the IOM has said, and as we know 
from adopting voluntary reporting and learning systems in other 
contexts, such as in general aviation--more lawsuits don't improve 
quality--they make matters worse.
  Our health care system must put a greater emphasis on preventing 
medical errors, not hiding or surpressing these errors due to fear of 
lawsuits. To create such a system, we must pass both patient safety 
legislation and litigation reform. And I am committed to passing 
patient safety legislation too. It is now being blocked by at least one 
Senator on the other side of the aisle despite the fact that it has 
passed the HELP committee unanimously.
  Fortunately, we know how to address the cause of the crisis because 
reform measures have already succeeded at the state level. The Healthy 
Mothers, Healthy Babies Access to Care Act is based on these reforms. 
It is a common sense measure that will restore balance to our broken 
litigation system in the narrow area of OB/GYN services. It will 
protect the right of the negligently injured patient to sue for just 
compensation while curtailing lawsuit abuse. Though this bill has a 
narrow scope, it is comprehensive reform with several critical 
components. Let me briefly mention just a few key provisions.
  The bill ensures that injured patients will receive a larger 
percentage of their award by limiting attorneys contingency fee to a 
reasonable sliding scale. For awards over $600,000, lawyers can keep 15 
percent of any payment. Currently, lawyers in many states can take up 
to 40 percent of all awards and settlements, leaving the injured 
patient grossly undercompensated.
  The bill places a statute of limitations of three years on bringing a 
suit. This ensures that a suit will be brought in a timely manner and 
evidence preserved.
  The bill controls excessive awards for noneconomic damages by placing 
a $250,000 cap on these types of awards. Noneconomic damages are 
subjective awards for pain and suffering that cannot be easily 
quantified. They contribute greatly to the personal injury lawyers' 
lawsuit abuse. Of note, the caps contained in this bill are 
``flexible'' and do not preempt state law. Thus, if a state has already 
defined a different cap on noneconomic damages or subsequently passes a 
different cap--whether higher or lower--that State designated cap 
prevails.
  At the same time, the bill ensures that negligently injured patients 
will receive full economic damages. Economic damages are the out-of-
pocket expenses that a victim might suffer due to a doctor's 
negligence, such as hospital costs, doctor bills, long-term care, other 
medical expenses, and lost wages. When a patient is negligently 
injured, they deserve full economic recovery.
  Experience at the State level clearly shows that comprehensive 
medical liability reform works. The Healthy Mothers, Healthy Babies 
Access to Care Act is modeled after California's Medical Injury and 
Compensation Reform Act, or MICRA, which became law in the mid 70's. 
Thanks to MICRA, California doctors and patients have been spared the 
medical liability crisis that other states are facing. You simply don't 
hear the horror stories about OB/GYNs quitting their practice or women 
unable to find an obstetrician in California. This is true despite the 
fact that it is a big State with a high cost of living. In fact, since 
MICRA passed, total insurance premiums paid in California have risen by 
only 167 percent while total insurance premiums paid for the rest for 
the country have risen by 505 percent--more than three times as much.
  Over the next day or two as we discuss this bill, opponents of reform 
will likely go to great lengths to blame the current crisis on 
insurance companies, the stock market, the bond market, doctors, 
hospitals and on and on. I fear we will hear this crisis blamed on just 
about everyone and everything except for the true cause--the current 
litigation system. The system is broken. This broken system is hurting 
patients and now is the time to fix it.
  I urge my colleagues to support the Healthy Babies, Healthy Mothers 
Access to Care Act. This narrowly tailored, commonsense reform of our 
broken and inefficient medical litigation system will be a big step in 
improving our health care system for all Americans. Passage of this 
measure will help ensure access to quality health care for women and 
babies, protect negligently injured patients, and save our country 
billions of dollars in health care costs every year.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The highly competent clerk will now report the 
motion to proceed.
  The legislative clerk read as follows:

       Motion to proceed to the consideration of S. 2061, a bill 
     to improve women's access to health care services and provide 
     improved medical care by reducing the excessive burden the 
     liability system places on the delivery of obstetrical and 
     gynecological services.

  The PRESIDING OFFICER. The distinguished Senator from Alaska is 
recognized.
  Mr. STEVENS. Mr. President, I ask unanimous consent that I be allowed 
to speak as in morning business for up to 4 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Stevens are printed in Today's Record under 
``Morning Business.'')
  Mr. STEVENS. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The distinguished Senator from New Hampshire 
is recognized.
  Mr. GREGG. Mr. President, I join with my colleague from Alaska in 
congratulating Senator John Glenn on the honor he received.

[[Page S1425]]

  I am rising today, however, to speak about the bill which is 
hopefully going to come before the Senate and on which the majority 
leader has been so eloquent, as he often is. Especially when there are 
issues concerning the care for other people, the majority leader has 
truly established a record that is unique, certainly in the Senate, 
with the hands-on experience of physically saving lives as a result of 
his skills as a surgeon and a doctor. He has decided to bring to the 
Senate the issue of how we make sure women in this country have 
adequate access to doctors, especially during that period in their 
lives when they are delivering children.
  I personally cannot think of anything more important to our culture 
than babies. If we were to pick one event in the life of a citizen of 
this country--or I suspect anywhere in the world--that really is an 
event of great wonder and alters a person's view of the world and how 
they work with the world, it is when one has a child. Certainly they 
want to make sure their children are delivered in a safe way and with 
the best medical help that can be obtained.
  This is why this bill is so important, because trial lawyers do not 
deliver babies. Doctors deliver babies. If we do not have enough good 
doctors dealing with women who are about to deliver or who are becoming 
pregnant or who believe they wish to have a child, and to deal with 
them in a manner which allows women to have ready access so that they 
do not have to drive miles in order to see their doctor or they do not 
have to wait days in order to see a doctor because there are not any 
available, if we do not have that structure in our society then we put 
at risk our ability as a society to have healthy children and to have 
mothers who are comfortable and feel safe about the experience of 
childbirth. That is something that is serious.
  Regrettably, that is where we have arrived as a society. Whether we 
like it or not, we have arrived at a time where women in this country 
are at significant risk of not being able to see a baby doctor because 
the baby doctors in this country are being driven out of the business 
by the cost of their errors and omissions insurance. That insurance has 
skyrocketed dramatically in the last few years as a result of lawsuits, 
and further in my statement I will get into some specific statistics 
that will show why these lawsuits are occurring and what their impact 
has been on the actual ability of doctors to practice, in a statistical 
term.
  All of us who work in this area of trying to address the concerns of 
getting women decent access to doctors so they can have children safely 
have heard stories and anecdotes which are so regrettably consistent in 
the sadness of the tales that there has to be a great deal of truth to 
them. It is also supported by the numbers and statistics.
  Last week I had the chance to meet with four obstetricians in New 
Hampshire. Two of them had to get out of the business of delivering 
babies. It was the favorite part of their practice. They were OB/GYNs. 
The cost of their insurance had increased so dramatically they could no 
longer afford to go into the operating room and deliver a child. 
Neither of those two doctors had ever had a claim against them relative 
to the children they had delivered before they gave up the practice, 
and they delivered quite a few.

  Two of the other doctors were still delivering babies, but they had 
significantly curtailed their practice or their practice had been 
dramatically impacted by the cost of their insurance. One doctor told 
us everything he earned in the first 5 months of his practice every 
year went to pay his insurance premiums relative to a potential claim 
against him, and he never had a claim against him personally. There had 
never been a claim. Yet his premiums had jumped over 100 percent in the 
last 3 years. He was finding it very difficult to stay in the business 
of delivering children, but because he was the only doctor in that part 
of our State who was really doing that, he felt a social obligation to 
continue delivering babies, as well as the fact that he personally 
loved the practice of delivering babies. It was getting to a point 
where he was not sure how much longer he could do this.
  Also at this meeting there were two doctors who should have been 
there but were not because they had left the practice. They were two 
doctors from northern New Hampshire, which is a rural part of our 
State. They are no longer practicing and delivering our children. As a 
result, there is no doctor in northern New Hampshire today who delivers 
babies. There is no OB/GYN because they have been driven out of the 
practice of medicine. Those two doctors have left the practice in that 
area. One moved to another State and the other simply dropped the 
business of delivering babies.
  The stories go on. They are real and they impact real people. In 
order to see a doctor, a woman in northern New Hampshire today who is 
pregnant has to now drive from Colebrook, NH, probably down to Hanover, 
NH, or at least down to Littleton at the closest, which is a long 
drive. It is a curvy road and in the winter it is a difficult drive. 
Even though people are comfortable driving in the winter in New England 
and in New Hampshire, we can get some serious snow and ice and it can 
be very testy and sometimes one cannot even get through because the 
snow cannot get removed in time or it is too heavy. So that woman is at 
risk, and it is not just in New Hampshire.
  This is a photograph of a woman from Arizona named Melinda Sallard. 
She was forced to drive about 45 miles in order to deliver her child. 
In the first 2 blocks, they drove by the hospital that was next door to 
their house, but there was no OB/GYN doctor there because they had 
given up the practice, so she had to drive 45 miles to the hospital. On 
the way, she had the baby in Arizona. The baby's heartbeat had actually 
stopped while she delivered it in the car, and while her husband kept 
driving to the hospital, she was able to start the baby's heartbeat 
again and the baby survived. Now we see the photograph, but it was 
risky and it was traumatic. She should have had a doctor in the 
hospital that was almost next door to her house, but she did not. She 
did not because the doctors in that hospital had to give up the 
practice.
  We have Dr. Schmitt, one of the best doctors in North Carolina, 
according to the patients who saw him deliver babies, who loved the 
practice, but because the cost of his insurance went up so much as a 
result of the potential of a suit, of which I understand he had never 
had any, he had to give up the practice. This is a picture of the 
doctor and I think just about the last child he delivered. The child is 
not very happy about being the last child he delivered. He does not 
have a smile on his face. He wanted the doctor to deliver other 
children. Dr. Schmitt had to give up the practice. He actually moved 
because he could not maintain the premiums that were driving up costs 
so extraordinarily.
  What is causing this? Essentially, it is being caused by lawsuits, 
many of them frivolous. In fact, there is a statistic that says only 4 
percent of the lawsuits against OB/GYNs have a recovery. The rest are 
frivolous--not all frivolous, maybe, but the majority are. The rest 
don't lead to any recovery at all. But as a result of those 4 percent 
of lawsuits getting astronomical recoveries, the whole pool of coverage 
costs for all baby doctors has increased so dramatically that they have 
been driven out of the business or they have been put in a position 
where they can no longer deliver children in a manner which is either 
fair or accessible for many women.
  We are at serious risk of having this discipline so contracted that 
we will end up rationing care in this area, which could be very serious 
and unfortunate for women. It is a function of the fact that our legal 
system has run amok relative to baby doctors and the women who need to 
see those baby doctors. I have heard our candidates from the other side 
of the aisle, both of whom are Members of this body--I have heard 
Senator Kerry say: I have spent my career fighting against special 
interests. I think he has said that almost every day, but that is a 
direct quote from the newspaper where he said it in Boston. ``I spent 
my career fighting against special interests.''
  Where is he fighting for these women? Where is he when these women 
want to see a OB/GYN and they can't? I suggest maybe he is fighting for 
the special interests on the other side of the coin, those who are the 
trial lawyers. For some reason the trial lawyers

[[Page S1426]]

appear to have the ear of the majority--not the majority but of enough 
so we cannot even hear about this bill on the floor much less vote on 
it. We should at least be able to take up the bill. But, no, no, the 
trial lawyers aren't going to let us take up this bill. We are not even 
going to be allowed to debate it on the floor and have votes on 
amendments.
  Maybe some who spent their career fighting special interests could 
come down to this floor and explain that one to me. Explain to me why 
Dr. Schmitt isn't practicing medicine anymore. There is somebody who 
needs someone to fight for him. Explain to me why Mrs. Sallard had to 
drive 45 miles and have her baby in the car. Explain to me why we don't 
have a doctor in Colebrook, NH, who will deliver babies or see people 
when they want to have babies. Explain that to me if you want to talk 
about fighting special interests or maybe come down and explain to me 
why trial lawyers are right. Then you say you fight against special 
interests. There is an irony there.
  I have heard Senator Edwards say: ``I want to make health care a 
birthright for every single child born in this country.'' That is 
Senator Edwards in the Des Moines Register--``every single child born 
in this country.'' Senator, come down and explain to us how children 
are going to be born if their mother cannot see a doctor. What type of 
risk is that child going to be at when they are born if the mother 
cannot see a doctor in Colebrook?
  This bill is being held up because there are interests out there that 
do not want to bring this issue to the floor of the Senate even for 
debate. They just want to stiff-arm it on behalf of an interest in this 
country which believes that it should have the right to bring these 
suits but has, as I said, 96 percent of them thrown out of court and in 
the same manner throws out of the delivery room the doctors, throws out 
the women to be on their own to look for a doctor miles away, at great 
inconvenience.

  This is a battle of special interests. My special interest in this 
one happens to be babies and mothers. Somebody else's special interest 
happens to be the trial bar. I am happy to defend this special 
interest, babies and mothers, on the Senate floor today. I would like 
to know why the other side is not willing to let us have this bill come 
forward.
  Let's get into some specifics about the size of the problem. The next 
chart we have shows the cover of Newsweek, which ran a very good piece 
on ``Lawsuit Hell, How Fear of Litigation is Paralyzing Our 
Professionals.'' Right in the middle is a doctor. It could be a 
midwife. Remember, midwives are as much affected by this as doctors. 
But essentially it is those people you see when you most need them, and 
especially if you are a woman and you want to have children. That 
person's career is paralyzed, and as a result of their career being 
paralyzed, our ability to get adequate health care is paralyzed. It is 
a good story. I recommend it to everybody.
  I want to make the point this is about women and it is about women's 
right to access decent health care. So speaking on behalf of that 
special interest--I know Senator Kerry is fighting against special 
interests, and he is probably fighting against this special interest, 
but I want to put something on the record. I don't want to put it in 
the Record because we will ruin the Record, but I want to mention that 
we have 85,000 petitions. Eighty-five thousand women have signed 
petitions asking that we at least consider this bill, where we at least 
get a vote on whether or not their doctors can have some protection. 
Eighty-five thousand women want to see a doctor, want to be safe when 
they get into those child-bearing years. They want to have the 
opportunity to have safe medical care.
  So we have brought those petitions here today. I am obviously not 
going to put them in the Record. I don't want the American taxpayer to 
have the expense of printing this. But I want to make it clear this is 
about real people, women who need health care, and especially need it 
when they are about to have children.
  The extent of this crisis is significant. It is not limited to New 
Hampshire, although New Hampshire has a very definite problem. The 
American Medical Association has developed this chart which basically 
color-codes States on the effect of the medical liability crisis on the 
availability of doctors. There are a number of States in this country 
where it is getting to be critical, where you are in a crisis mode if 
you want to see a doctor because you may not be able to see one. Those 
are the States in red.
  If you recall, in West Virginia the doctors actually weren't 
available for some time because of that issue. In Pennsylvania the same 
problem arose. It arose in State after State, large States with large 
populations: Florida, Texas, Pennsylvania, Ohio, Missouri, and smaller 
States, too, such as Wyoming. Every one of those red States is in 
crisis. That means there is a real problem, that you may not be able to 
see a doctor when you want to have a child or getting to see that 
doctor will be difficult.
  The yellow States are the ones moving toward crisis. This is not an 
abating problem; it is a growing problem. Only the white States, and 
there are very few of them, have been able to get their acts together, 
and we will find out why in a few minutes when we start talking about 
what States have passed limitations on liability insurance, and that 
being the issue.

  I want to take a specific look at a specific State which is in 
crisis: New York. New York State--I just picked New York out 
arbitrarily--is in crisis. This is for baby doctors. There are seven 
counties in New York where there are no obstetricians, where, if you 
are an expectant mother and you want to go see a doctor, you cannot 
stay in the county you are in. Some of those counties have a fairly 
high delivery rate: 200 in this county, 289, 215, 322 children. This is 
on an annual basis.
  Then there are a number of other counties which only have one 
obstetrician, and some of those counties have even larger numbers of 
delivery rates. So you are dealing with some people who are having to 
drive a heck of a long way in order to see a doctor. And New York State 
can get pretty cold and snowy, especially around Buffalo and Syracuse, 
where, as far as I can tell, it always snows except for in June and 
July. In any event, it can be hard to drive if you are an expectant 
mother. You can be under a lot of pressure to get to those doctors.
  It is not that they can't practice in those counties; it is that they 
cannot afford to practice in those counties. Why can't they? This 
problem is a uniquely rural problem in some ways. In order to pay that 
insurance premium, which is so high and has gotten so extraordinarily 
high over the last few years--in order to pay that premium you 
basically have to deliver a lot of babies.
  If a doctor has a practice in a rural area, not generating a huge 
amount of births, then you cannot work hard enough or deliver enough 
births to pay your premium. The doctor I mentioned from Laconia, NH--by 
our standards a fairly populous area of our State; not overly populated 
but a fairly decent community--has to work 5 months to pay just his 
insurance premium. If he were working in Colebrook, obviously, he would 
have had to work all year to pay the insurance premium and then he 
would not have earned enough to pay the premium. That is why we have no 
OB/GYN in Colebrook, NH. There are not enough babies being delivered. 
The premiums have gone up so radically they cannot afford to continue 
to practice.
  I am sure there are a lot of places in the Presiding Officer's State 
of Kansas which have the exact problem. I know parts of Kansas are 
reasonably rural. Those folks probably have to drive a long way to see 
a doctor. Kansas is a big State compared to New Hampshire. It is flat, 
so it is an easy drive, but still it is a long drive.
  Let's talk about some of the statistics so this is not just 
anecdotal: 72 percent of the OB/GYN doctors in Pennsylvania surveyed 
have changed their practice to reduce their liability--that means they 
have stopped delivering babies; 75 percent of the OB/GYN doctors in 
West Virginia, as well; 71 percent in Kentucky. There are dramatic 
drops in doctors willing to deliver babies or do any high-risk 
procedures at all.
  OB/GYN doctors in New Hampshire experienced a 100-percent increase in 
premiums within 3 years. That is a staggering number. As I mentioned 
earlier, only 4 percent of the lawsuits

[[Page S1427]]

brought relative to OB/GYN practices actually lead to recovery. That is 
staggering because it shows there are a lot of frivolous lawsuits.
  What is the way to resolve this? There are a lot of moving parts in 
the health care question. I am not saying the only issue that affects 
costs that the OB/GYN doctor incurs during their practice is the 
liability issue, the insurance issue, the issue driven by lawsuits 
which have no relationship to a doctor's practice because the doctor 
has never been sued. There are other factors. There is technology, 
hospital associations, all sorts of factors. Obviously, the insurance 
industry has gone through some significant adjustments, especially in 
the rate of return on investments as a result. But we know the single 
most significant factor by far is the increase in costs of the 
insurance policy. That is the item that is most affecting the ability 
of the doctors to continue to practice.
  We also know those States which have taken action in this area have 
actually been able to control the costs so the doctors are no longer 
feeling pressure at that level. The best example is California. 
Liability reform occurred in California, with caps, in 1977. As a 
result, in the California cost increase experience, premiums have gone 
up 182 percent compared with the rest of the United States, which has 
gone up 573 percent. The chart shows the difference. It reflects the 
fact that if you put in a responsible approach to premiums to liability 
insurance, you can control the rate of growth of the cost and, as a 
result, you can create more availability of doctors and more affordable 
health care.
  This chart shows that reform works. The bottom line reflects 
obstetrics. The first two areas, Los Angeles and Denver, have in place 
laws which limit recovery in the area of pain and suffering. Their 
basic premium for a policy of $1 million/$3 million is $54,000 and 
$33,000. The next four jurisdictions do not have those laws: New York, 
Las Vegas, Chicago, and Miami. Premiums in Miami are almost four times 
higher than Los Angeles, which would be a comparable city, and about 
seven times higher than Colorado; Chicago, two times higher; Las Vegas, 
two times higher; New York, 1\1/2\ times higher than Los Angeles; two 
times higher than Denver. That reflects the fact that if you put in 
responsible reform in the area of liability insurance you can control 
those premium costs.

  What is responsible reform? It is reform that addresses the primary 
concerns of a person who is injured but also addresses the fact that we 
have a large number of frivolous lawsuits being brought and a large 
number of lawsuits leading to extraordinary recoveries, which costs are 
being passed on to all the OB/GYN baby doctors in this country. As a 
result, baby doctors who have absolutely no history of malpractice are 
forced out of practice and mothers are not able to see their doctors 
and are being limited in access.
  This bill tries to address that. First, it says right off the top 
that a State has the right to make a decision on what the cap will be. 
We have essentially addressed this issue of States rights. We put in a 
cap that if a State wants to go above it they can go above it; if they 
want to go below it, they can go below. We also say there is no 
limitation on recovery for medical costs.
  There was a recent decision where, unfortunately, there was a severe 
injury and the child would need medical care for years. The bill came 
to something like $18 million. That would be an award that could occur 
if that was the child's medical costs; that could be recovered--whether 
$18 million, $10 million, $5 million, even more, $20 million. 
Hopefully, that will not happen too often but if it does the parents 
have a right to that recovery.
  As to lost compensation, if the mother is injured and there is a loss 
of compensation, if she has a job that she can no longer go back to or 
is limited in her ability to get a job, there is absolutely no limit as 
to what the recovery is relative to her compensation. If she is going 
to have a lifetime expectancy earning of $10 million, discounted to 
whatever that is, she gets that recovery.
  What we do not have in this bill, or what we try to cap because this 
is where the costs have gone out of control, this is what is driving 
the premium rates, is a limit on pain and suffering, which is basically 
the money that is thrown on top. Pain and suffering is what a jury 
feels when they hear a sad story that they think deserves an extra 
bonus award. That is limited to $250,000 under this bill. That is a 
reasonable limit. Most States are at that number that have acted in 
this area. But if a State wants to go above that area, it can step out 
of that and pass a higher amount.
  The practical effect of this bill, should it pass, is that the 85,000 
women who have written to us, the literally hundreds of thousands of 
women who are worried whether they will have a good doctor to see or 
even whether they will be able to see a doctor or whether they will 
have to drive many, many miles to see a doctor, putting themselves at 
risk, those women's concerns will be addressed to some degree because 
we will make practicing medicine in the area of delivering babies 
affordable again. We can get a doctor back in Colebrook. A doctor will 
not have to work 4 or 5 months of the year just to pay his or her 
premium. Doctors who love to deliver babies in Dover, NH, will be able 
to get back into the business of delivering babies because they will be 
able to afford the premium.

  That is what this is all about. It is about giving women the 
opportunity to have access to good doctors who can deliver babies and 
have those babies be healthy. Why we are not even going to be allowed 
to vote on going to this bill is beyond me, but that, I understand, is 
a position the Democratic leadership has taken. It seems ironic in the 
face of Senator Edwards' statement, which I will read again, as the 
potential standard bearer of his party: ``I want to make health care a 
birthright for every single child born in the country.''
  It is going to be hard for children to be born if they cannot see 
baby doctors. I do not understand why we cannot at least debate this 
issue on the Senate floor and have a vote on it. Senator Kerry would 
appear to want to do this because he wants to fight special interests. 
Well, I want to promote this special interest--which is children, 
mothers, expectant mothers, and doctors who deliver babies. So if the 
other side wishes to oppose those three constituencies, that is their 
choice. But I think they need to explain to us why it is good for a 
mother, good for a baby, or good for a baby doctor that the practice of 
medicine is being curtailed in this country in the very critical 
discipline of obstetrics.
  Mr. President, I understand the Senator from Vermont wants the floor 
so I yield.
  The PRESIDING OFFICER. The distinguished Senator from Vermont is 
recognized.
  Mr. LEAHY. Mr. President, I thank the distinguished Senator from 
Kansas, the Presiding Officer. And I thank my friend from New Hampshire 
for his usual courtesy in allowing me to have the floor. I will talk 
about the same issue.
  I am really disappointed there seems to be politics being played in 
this medical malpractice insurance debate. I feel a little bit like 
Claude Rains in ``Casablanca.'' I feel like saying: I am shocked--
shocked--in an election year we may find politics being played on what 
we all acknowledge is a serious matter.
  What we have before us is a one-size-fits-all bill. It is a one-size-
fits-all bill for a problem that varies greatly from State to State. 
This bill would actually encroach on the rights of every State--my 
State of Vermont, the distinguished Presiding Officer's State of 
Kansas, the State of New Hampshire, all others. It would yank away from 
our States legal rights and legal responsibilities they now have. And 
if history is any kind of a predictor, they would take those rights 
away forever. I think we have to show great care in the Senate when we 
want to so trample the rights of our individual States.
  The American public assumes the 100 Members of the U.S. Senate--if 
they are going to do something to drastically change the lives of 
people in all 50 States, if they are going to drastically step in and 
set aside the legislatures of the 50 States--would do it only after 
careful consideration. But instead we have short-circuited our own 
procedure. Usually, when we have a bill, as everybody knows from civics 
101, it is introduced, it is sent to the appropriate committees, 
hearings are held, debate is held in the committees,

[[Page S1428]]

amendments are voted on, and then it is sent to the floor--but people 
have had a chance, both for and against the bill, to come in and 
testify.

  Certainly, the Governors of the various States would have a chance to 
come in and say either we want you to just trample our rights and 
trample our legislature, trample our own authority or we do not. In 
this case, that did not happen. In this case, the bill was just written 
up in a couple lobbying shops down on K Street and brought up here for 
people willing to introduce it at the request of those lobbyists. And 
instead of letting States find solutions that are best for their 
citizens, the Republican majority prefers this attempt to tally points 
on some election year political scoreboard for what are powerful 
special interests, but they are going to do it at the public's expense.
  Instead of looking at the big picture, the overly broad antitrust 
immunity that the insurance companies get, or the fact that a lot of 
insurance companies made a lot of poor calls in the stock market and 
lost a lot of money and are now saying, well, the doctors can pay 
higher premiums to pay it back--instead of looking at ways to reduce 
medical errors so there would be less suits--what they have said is 
that we have to help these big insurance companies--not help the 
individual States, not help the people involved. We will help the 
insurance companies.
  No matter they are unwilling to clamp down and ask for higher medical 
standards, no matter they have lost billions playing the roulette 
wheels in the stock market, no matter they do not want to debate, it is 
an election year and their lobbyists came up and said we really want 
this bill, so here it is.
  Here is a bill that would take a chain saw to the legal rights of the 
American people and to the prerogatives of each of the 50 States that 
we take an oath to represent in the Senate. It has been tried before. 
It did not work. This time the bill is limited to obstetrical and 
gynecological care. Actually, it is not just making sure the insurance 
companies are helped out. But what the majority says and what the 
lobbyists say is they want to limit the legal rights of the most 
vulnerable patients: mothers and infants. It is unfortunate because we 
do have a health care system that is in crisis. We hear that so often 
that the force of it tends to diminish, but that truth is one we have 
to confront. The crisis is one that has to be tackled and solved.
  Dramatically rising medical malpractice insurance rates are forcing 
some doctors to abandon their practices or to cross State lines where 
it might cost less. So many times, of course, these insurance rates 
have gone up even though there have been no cases that would indicate 
why they have.
  Patients who need care in high-risk specialties, such as obstetrics, 
and patients in areas that are already underserved, such as many rural 
communities in my State and the Presiding Officer's State, are too 
often left without adequate care.
  What I find amazing is that here we are, the richest and most 
powerful Nation on Earth, and instead of simply being able to do what 
most Democratic nations do--that we would assure access to quality 
health care for all our citizens--we are saying: No, we will allow our 
doctors and our providers to be driven from their calling by the 
manipulations of some of the insurance companies.
  That is why I was hoping we would have a real debate, we would have 
real hearings, to find out what is happening, that we would find out 
what happens when you give antitrust immunity to the insurance 
companies to set rates however they might want.
  Different States, though, have different experiences with medical 
malpractice insurance. Many of these States are not seeing rates 
skyrocket, but the State's insurance remains largely a State-regulated 
industry. Are we going to say that even for those States that have much 
lower insurance rates, we are going to say, tough, no matter what you 
have been doing, no matter what you did to make things work right, 
tough, because we are going to throw that all out. We are just going to 
wipe you off the books. We are going to wipe off your State control 
because we, the 100 Members of the Senate, understand it so much better 
than you possibly could. We know so much better than your 50 Governors, 
your 50 legislatures, and we know it so well we are able to do this 
without any hearings, without any discussions, without any work from 
the outside?
  We are able to do it because we are U.S. Senators. And we know that 
what was handed to us by the lobbyists when they drafted this bill must 
be right because, after all, they come to our fundraisers.
  I don't think it should be that way. I don't think that my own State 
of Vermont should be set aside when our Governor and our legislature 
are working to try to find the best solution for our small State.
  I think of the one time we did have a hearing on this in the Senate 
Judiciary Committee--not this bill but a predecessor bill--when Linda 
McDougall came here. It was pretty tragic. She told us that she had had 
a double mastectomy because they made a mistake. She wasn't supposed to 
have had any mastectomy, but somebody read the papers wrong and that is 
what happened.
  If the Senate is able to pass this bill and get it signed into law, 
she would still be allowed to recover, for what was gross negligence, a 
total of $250,000. That is about what Senators make in around a year 
and a half. Which do you think she would rather have? Would she rather 
have her body back intact or the $250,000? Please.
  Arbitrarily limiting injured patients' remedies under the law without 
addressing systemwide medical errors that result in patient harm and 
death is a recipe for failure. We should be asking what were the things 
that went wrong; how did these things happen that such a terrible 
mistake was made?
  We are fortunate in this Nation to have many highly qualified medical 
professionals. I think in my own little State of Vermont how fortunate 
we are to have extremely good physicians. Unfortunately, sometimes even 
good doctors make errors. If there is no pressure on the insurance 
companies, no pressure on the medical societies to keep the standards 
up, why should they go up? If the Senate, in its infinite wisdom, can 
take a lobbyist bill and just pass it and stop them from having to 
worry, why should they worry?
  We must do all we can to support the men and women who commit their 
professional lives to caring for others, but we must also ensure that 
patients have access to adequate remedies if they receive inadequate 
care.
  Let's understand, notwithstanding what the insurance companies' 
lobbyists tell us, 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 business models 
geared toward ever increasing profits, as well as the cyclical 
hardening of the liability insurance market. In cases where insurers 
made a bad investment and experienced the same disappointment from Wall 
Street that many other Americans have, it should not be able to recoup 
its losses from the doctors it ensures. The insurance company should 
bear the burden of its own business model, just as every other business 
in this country ought to do.
  A nationwide arbitrary capping--with no hearings--of awards available 
to victims, as the Republican majority has proposed, should not be the 
first and only solution turned to in a tough medical malpractice 
insurance market.
  I might ask my friends, does anybody think if we pass this bill, if 
we override the legislatures of Texas or New Hampshire, Ohio, Vermont, 
or anywhere else, if we override all those legislatures and pass what 
the lobbyists and the fundraisers have asked us to pass here--this 
bill, with no hearings, no committee work, just came from the pens of 
K Street, I suppose--does anybody think if we pass this pig in a poke 
that these medical malpractice rates are going to come down? Come on. I 
have a bridge in Brooklyn to sell you if you believe that.

  We can pass this. We can help the insurance companies out of their 
bad investments. We can make sure that people who have been severely 
injured through medical malpractice are unable to recover for it. We 
can do all those things. But I guarantee you, the rates will not come 
down. We have seen enough other times when we passed special interest 
legislation supposedly

[[Page S1429]]

to help consumers and it has helped businesses. It has not helped the 
consumers.
  What we ought to be doing is conducting thoughtful and collaborative 
consideration in committee that might achieve a sensible solution that 
is fair to patients, that supports our medical professionals and their 
ability to practice. I suggest one thing we might do is take away the 
blanket exemption from Federal antitrust laws that the insurance 
industry has. Insurers have for years had this novel exemption that 
nobody else has enjoyed. The McCarran-Ferguson Act permits insurance 
companies to operate without being subject to most of the Federal 
antitrust laws. Do you think our Nation's physicians, our doctors and 
their patients, have benefited by allowing the insurance companies to 
operate without being subject to most of our antitrust laws? Of course, 
they have not. They have not used this exemption from antitrust laws to 
benefit the patients. They have not used it to benefit the doctors they 
insure. They have used it to benefit themselves.
  With this antitrust exemption, they can collude to set rates, 
resulting in higher premiums, certainly higher than real competition 
would achieve. And because of the exemption, law enforcement officials 
can't even investigate the collusion.
  If we want to do something, let's get rid of the antitrust exemption 
that let's them set doctors' premiums anywhere they want. Let's get rid 
of the antitrust exemption that allows them to recoup their losses in 
the stock market--not losses for malpractice cases--by just charging 
ever higher premiums.
  More than a year ago, I introduced the Medical Malpractice Insurance 
Antitrust Act, S. 352. Senators Reid, Kennedy, Durbin, Edwards, 
Rockefeller, Feingold, Boxer, and Corzine cosponsored the legislation. 
It would modify McCarran-Ferguson with respect to medical malpractice 
insurance and then only for the most pernicious antitrust offenses: 
price fixing, bid rigging, and market allocation. These are the 
anticompetitive things that affect premiums.
  I can't imagine how anybody could object to a prohibition on 
insurance carriers fixing prices or dividing territories. After all, 
all the other industries in our Nation have to abide by these laws or 
they pay the consequences. So we will find out who really carries sway 
here. Is it the insurance companies and their lobbyists or is there 
some indication that the American people may still have a voice in the 
Senate?
  Let's find out what happens when we bring up an amendment to remove 
the antitrust exemption these insurance companies now have. This 
legislation languished for a long time. We actually had hearings on 
this. But the one that is written downtown comes straight to the floor.
  If we are really serious about controlling rising medical malpractice 
insurance premiums, we have to limit the broad exemption to Federal 
antitrust law and promote real competition in the insurance industry, 
and work at reducing medical errors across the health care system. This 
partisan bill doesn't do that.
  This partisan bill is designed to be a talking point for fundraisers. 
It is not designed to help doctors in rural, underserved areas to be 
able to pay their medical malpractice insurance. It doesn't help the 
women and children in this country who need these medical specialties. 
It may help insurance companies and fundraisers, but it doesn't help 
anybody. If we are going to pass something, let's pass something real.
  I see my good friend from Texas and my friend from Ohio on the floor. 
When I started speaking, there was nobody else seeking recognition. My 
good friend, Senator Gregg, was kind enough to yield when I came here. 
I will be speaking more on this, but I will yield to whichever Senator 
wants the floor.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from Texas is 
recognized.
  Mr. CORNYN. Mr. President, I ask unanimous consent to be added as a 
cosponsor of the Healthy Mothers and Healthy Babies Access to Care Act 
of 2003.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I am happy the majority leader has seen 
fit to bring this important issue to the floor. I will have some 
specific comments about the bill in just a moment.
  I believe our civil justice system is badly broken insofar as it 
serves the interests of the few at the expense of the many. What I mean 
by that is our system of resolving civil disputes, whether they be 
medical malpractice lawsuits, or automobile accident cases, or any 
other kind of ordinary bread-and-butter lawsuit you see decided in 
courthouses across this country, in which citizens volunteer to give up 
a substantial amount of their time, that this process takes too long 
and it is too expensive to serve the interests of justice. It 
discourages those who have meritorious claims from even bringing those 
claims because they don't want to endure the time or expense. It too 
often benefits the very few at the expense of the rest of the public.
  Particularly, the benefit is to a handful of lawyers. I must say, I 
am proud to be a lawyer. I practiced law a long time before I was a 
judge presiding over a trial court in San Antonio, TX, for 6 years and 
serving on the Texas Supreme Court for 7 years. I am proud to be a 
lawyer.
  The problem is we have a handful of lawyers who are literally the 
tail wagging the dog on this and other reform issues that are so 
important to restoring public confidence in our civil justice system 
and making sure that rather than serving the interests of the few, the 
interests of the general public are served by the way in which we 
handle disputes like medical liability cases and other tort litigation.
  We have in this country what some have called the ``sporting theory'' 
of justice. We have an adversary system, where each side retains a 
champion and we go in and we have a clash between these adversaries in 
court, and the theory is--and in many respects it works well--the 
impartial jury decides the facts and the judge applies the law, and 
then we have a judgment in the dispute. It is a way of resolving our 
disputes without violence, in a way that seems to satisfy the public 
generally. But the problem is in modern-day litigation--and nowhere is 
this more prevalent than in the area of medical liability litigation--
the interest of the person who is harmed is not truly paramount in 
consideration in terms of the way the system works. In fact, many 
times, it is the patient who may be injured or harmed who receives 
actually less money than the lawyer who brings the lawsuit.
  As you know, many of these lawsuits are handled on a contingency fee 
basis. In other words, the lawyer who brings the lawsuit will represent 
a client in court--a patient in this instance--and say, well, if I 
represent you, then I will take 50 percent of everything you recover. 
It won't cost you a penny if I don't recover anything, but if I do, I 
will recover 50 cents off the top of every dollar you recover. Of 
course, there are other expenses associated with this kind of lawsuit, 
such as the hiring of expert witnesses, court costs, and the like.
  Too often, what happens in these cases is the lawyer ends up the one 
walking out of the courtroom with the most money, not the injured 
party, not the person for whose benefit a lawsuit is brought. To me, 
that simply turns our civil justice system on its ear. It calls into 
question whether this is a system of resolving disputes in a way that 
serves the interests of the public; or does it, as it appears too 
often, serve the interests of a handful of personal injury lawyers who 
make their living bringing this kind of lawsuit.
  There is another aspect of this as well. In our civil justice system, 
we know almost anybody can file a lawsuit for virtually anything. If 
you can get a lawyer to file a lawsuit, then you can sue someone for a 
small fee, whereby the clerk will serve the papers on the defendant, 
and typically the defendant will have to hire a lawyer to represent 
them. At this point, there is no determination made that there is any 
merit to that lawsuit. Well, what happens too often is the very nature 
of being able to file that lawsuit without any determination if there 
is any merit at all leads to a form of legalized extortion, because the 
person who has been sued has no recourse but to hire someone to defend 
them. Even if they end up winning the lawsuit, even if the lawsuit 
filed is dismissed ultimately, there is no recourse for that defendant 
who

[[Page S1430]]

has been wrongfully sued or sued in a frivolous lawsuit.
  This, too, adds to the expense of ordinary litigation and makes very 
little sense to me or, I think, to a lot of people. I think the more 
the public understands who it is who benefits from the current state of 
our civil justice system, our tort system, our medical liability 
system, the more the people will understand it is not them, not the 
injured patients, not those whom the system is designed to benefit; it 
is for those who filed the lawsuits, the lawyers who represent those 
folks. Unfortunately, because of the costs associated with just the 
expense of litigation, we know too often those persons who are sued 
will make what is known in the profession as a nuisance settlement. In 
other words, they will say, well, it is going to cost me tens of 
thousands of dollars just to defend myself against a frivolous lawsuit. 
Rather than defend myself and win the lawsuit, but end up $100,000 out 
of pocket, or whatever the cost may be, I will pay you $5,000 or 
$10,000 to simply have it go away.
  Unfortunately, you can see why the financial incentives tend to favor 
nuisance settlements of lawsuits which, unfortunately, have the 
unintended impact of encouraging further litigation and other lawsuits 
even when they are frivolous. We need to do something about it. I join 
the senior Senator from New Hampshire who said we need some meaningful 
medical liability reform. We need to make sure that it is not the 
lawyers who bring these lawsuits who benefit but, indeed, the public. 
Nowhere is this a greater concern than when it comes to access to 
health care and medical liability lawsuits.

  Last fall, I spoke in this Chamber, along with others, in support of 
broad-based medical liability reform. Today I rise to speak in favor of 
this narrow, but very important, bill that deals with women's access to 
physicians who will deliver their babies, access which has been damaged 
terribly by the current dysfunctional way in which we resolve disputes 
about medical liability.
  The change we argued for last fall and this change as well would 
drastically reduce the cost of health care by reducing frivolous claims 
and eliminating the need to pay extraordinary amounts of money for 
medical liability insurance.
  Unfortunately, we failed to pass meaningful reform. We have heard--I 
heard the Senator from Vermont mention this a moment ago--that the real 
culprit in all this is the insurance companies; it is not the lawyers 
who benefit disproportionately from the status quo; we know it is not 
the patients who do not benefit very often; and we know people who seek 
access to health care are denied access to that health care because of 
this dysfunctional system. The Senator said it is the insurance 
companies.
  I take second chair to no one in saying that if, in fact, he can 
point to abuses perpetrated by insurance companies or anyone else, we 
certainly ought to take up that issue. But I believe the motivation is 
really one to create a diversionary tactic, a smokescreen, if you will, 
to say it is not the lawyers, it is not us, Heaven forbid, it is not 
the women who want their babies delivered, it is the insurance 
companies. We have heard this time and time again when, in fact, I 
believe the empirical evidence that has been produced in my State and 
other States shows that, in the end, insurance companies, which are 
typically subject to strict State regulations, are having to play a 
lottery game, a sort of game of roulette. They don't know what the 
rules are because they change with every million-dollar, multimillion-
dollar, tens-of-million-dollar judgments in lawsuits. So they charge an 
insurance premium, just like we pay for homeowners insurance or 
renter's insurance or any other kind of insurance, and ultimately that 
cost is passed on to the consumer. In this case, the consumer of that 
insurance, the one who pays that premium, is the physician who wants to 
practice medicine, who wants to dedicate their life to the interests of 
people who are sick and who need their help--in this case, mothers who 
need access to good baby doctors so they know the baby they have 
carried for all these months will be delivered safely and will be 
healthy.
  The good news I guess, if we can find any good news in this sordid 
situation in which we find ourselves, where these lawyers who benefit 
from the status quo are the ones who are calling out the tune and 
having others dance to the tune they have called out, is that some of 
the States are stepping up; they are not waiting on a solution from 
Washington, DC, and that is a good thing.
  As someone who believes that local government and State government 
tends to be more responsive because it is closer to the people they 
serve, than for the Federal Government, I think it is good that the 
States are stepping up, but this is not strictly a State problem.
  When we consider how much money we appropriate each year--we just 
passed a $400 billion Medicare bill which is now estimated to cost more 
than $100 billion more than that over 10 years--when you think about 
Medicare, when you think about Medicaid, when you think about S-CHIPS, 
the Federal taxpayer--in other words, everyone who earns a wage in the 
United States--subsidizes this broken medical liability system because 
much of the costs associated with health care today are due to either 
counting in what this rapidly increasing cost is in terms of 
determining what a fee for a service is or otherwise having to suffer 
the consequences when doctors simply pull up stakes and move out of 
their State, leaving mothers, in this case, who want a doctor to 
deliver their baby in the lurch.

  In my own State, out of 254 counties, there are 154 counties in which 
a pregnant woman cannot find a specialist to deliver her baby. A large 
part of that cause is because of the cost of medical liability 
insurance which is simply priced out of the market, and physicians say 
I am going to retire early rather than subject my family and myself to 
putting at risk everything I have worked a lifetime to save and achieve 
or people who just simply have gotten tired of being in the crosshairs 
their whole life by a system that serves the interests of the few at 
the expense of the many. I think Senator Gregg had a chart that showed 
what I mentioned a moment ago behind, that out of the 254 counties in 
Texas, 154 have no obstetrician/gynecologist, no specialist in 
delivering babies. The yellow depicts those pregnant woman would have 
to drive to one of the white counties simply to find someone who will 
deliver her baby, and sometimes they don't make it. Sometimes the baby 
is damaged because complications ensue because there is no doctor close 
by who is qualified to deliver that baby because of this broken medical 
liability system.
  I think it was Senator Frist or perhaps Senator Gregg had a chart 
that showed a chart of 19 States where there is a medical liability 
crisis because of this civil justice system, a system that is supposed 
to be a just system but is truly an unjust system. It is simply broken.
  Each of these red States, including, we can see, the State of Texas, 
is listed as a State in crisis. Nineteen of them are where patients are 
losing access to baby doctors due to skyrocketing medical liability 
insurance premiums and where pregnant women are forced to drive long 
distances just to find a physician to deliver their baby.
  As I mentioned a moment ago, the good news, if there is any good news 
in all this, is that the States are not necessarily waiting on the 
Federal Government. In my own State, just this last year, the voters 
passed a constitutional amendment, proposition 12, which would provide 
some of the relief that is sought to be delivered to the entire Nation 
in this particular bill. We have already seen some very beneficial 
effects of this constitutional amendment and the legislation that 
implements it because we have seen medical liability insurance 
companies offer to reduce their premiums by 12 percent or 19 percent in 
another case.
  So we are beginning to see some real impact of the predictability and 
the commonsense reforms that I believe are designed into this important 
bill. Because the American taxpayer pays to support the Medicaid 
system, pays to provide indigent health care, pays to provide other 
types of medical care, this is truly not just a State problem. This is 
a national problem, and I know many of my colleagues, myself included, 
are concerned when we hear those dreaded words from the Federal

[[Page S1431]]

Government: We are from the Federal Government and we are here to help. 
Those are some of the most dreaded words in the English language 
because, indeed, the States and local government, I believe, tend to be 
much more responsive. This is truly not just a statewide problem in my 
State or any State. This is a national crisis that calls out for a 
national solution.
  This is not something that affects only obstetricians or baby 
doctors. Indeed, this affects the ability of hospitals to do business 
in rural parts of our country, rural parts of my State. Emergency 
departments lose staff and scale back critical services such as trauma 
units. From 2002 to 2003, we saw a 56.2 percent average premium 
increase faced by emergency room physicians and the hospitals in which 
they practice. One-third of the Nation's hospitals saw 100 percent or 
more increases in liability insurance premiums in 2002. We may think 
this does not really concern me, this is the hospital owned by a 
corporation, or this is a doctor's problem, somebody who drives a big 
shiny car, who makes a lot of money. But this is not about helping 
doctors or helping the corporations that own hospitals. Many of them 
are owned by nonprofit associations and are charitable organizations 
that keep their doors open because they believe in their mission. This 
is ultimately about access to health care.
  I have heard some of my colleagues on the other side suggest that 
because of the booming number of uninsured in this country, estimated 
to be at any snapshot in time as many as 43 million people, we need 
universal, federally funded health care in this country. We know, 
because the Joint Economic Committee has told us so, that 3.9 million 
uninsured Americans would be able to receive health insurance if 
Congress were to pass commonsense medical liability reforms. Almost 4 
million currently uninsured individuals would be able to receive health 
insurance if Congress were to pass commonsense medical liability 
reforms.
  This is not just an isolated matter. This does not just affect 
doctors who are fortunate by virtue of their training and that 
expertise to earn significant incomes. This is not just about big 
hospitals with shiny buildings owned by corporations. This ultimately 
comes down to the individual who wants what we all want, and that is 
access to good quality health care, but who simply cannot find it 
because they either cannot afford the health insurance or their 
employer has been priced out of the market because of booming health 
insurance premiums, in large part caused by this liability crisis or, 
as we have seen, simply the doctors who, rather than live in the 
crosshairs of this broken system, decide to retire or to move away to 
some other location.
  I know there are others, such as Senator DeWine, who want to speak 
after me, so I will conclude my remarks. But I plead to my colleagues 
to allow this matter to be debated. That is all we are talking about at 
this point. All we are looking for is 60 Senators who will have the 
courage to stand up to the trial bar, the personal injury trial 
lawyers, who insist that this matter not be debated on the Senate 
floor. When so many pay the costs of that intransigence, I suggest that 
is just not fair and it is not just.
  I encourage our colleagues to reexamine their conscience and ask 
whether they are serving the best interests of their constituents, and 
in this specific instance so many women who need a doctor to deliver 
their baby. This country's future depends on those healthy babies being 
delivered and becoming productive citizens, not harmed by an avoidable 
medical complication because the mother, during her hour of need, and 
the baby during its hour of need could not get the medical care they so 
richly deserve and upon which America depends.
  We must end the liability lottery where only a few patients and even 
more trial lawyers receive astronomical awards. Even when there is no 
award in a frivolous lawsuit the costs simply run up what we all pay 
for health insurance, those of us who can get it, and render many more 
even unable to get access to health insurance and thus access to health 
care at all. We must pass meaningful medical liability reform that 
includes real and lasting change and brings the lessons of Texas and 
other States that have been successful in passing statewide reform to 
the entire Nation because, indeed, this is no longer just a State-by-
State crisis, as we have seen with 19 States in an emergency situation. 
This is a crisis that affects our entire Nation. It affects the quality 
of life that we enjoy and the promise that I believe we all wish to see 
delivered to every American, and that is the ability to live out our 
dreams. Part of that means access to decent, good quality health care, 
something that is being impaired by our failure to act in this 
instance.

  I yield the floor.
  (Mr. COCHRAN assumed the Chair.)


                       POLITICAL CRISIS IN HAITI

  Mr. DeWINE. Mr. President, at this very minute, there is an urgent 
crisis in America's own backyard, a crisis on the island nation of 
Haiti. I have come this afternoon to talk about that. I have been on 
the Senate floor many times in the past to talk about Haiti. I think I 
have traveled to Haiti 13 times since I have been in the Senate. I have 
talked before about the AIDS crisis there. I have talked about the 
horrible dehumanizing poverty. I have talked about the lack of clean 
water. I have talked about the food shortages. I have talked before 
about the children who are sick with AIDS and other diseases such as 
malaria and tuberculosis, children who have been orphaned when their 
parents die from AIDS, children who have little hope for a better 
future unless significant reforms are implemented and changes are made.
  Today, I come to the Senate floor to talk about what everyone has 
seen in the news in the last several weeks, and that is something that 
is now dwarfing the poverty, the AIDS, and all the other problems, and 
that is the current crisis, the violence that has erupted across this 
island nation.
  The chaotic and dangerous situation in Haiti right now is anything 
but a surprise. The fact is that a crisis has been looming there since 
at least before Christmas. In January, in an opinion piece that I wrote 
for the Miami Herald, I urged Haitian President Aristide to reach an 
agreement with the legitimate opposition groups, the political groups, 
to reach wholesale political change and reform. In that opinion piece, 
I urged him to pull back his own gangs of thugs and to tell them to 
stop their violence. I suggested then that President Aristide had 
within his own power the ability to avert further chaos and inevitable 
disaster at the hands of insurgent groups by ending the political 
impasse with the opposition and by creating a government that the 
international community could, in fact, support.

  I am pleased that just this weekend President Aristide agreed to the 
proposal of the U.S. administration, our administration's proposal to 
end the political stalemate. It is imperative that the legitimate 
political opposition groups in Haiti now accept the terms of this 
agreement. As I speak this afternoon, these groups are considering this 
proposal. But I must say, time is of the essence. I believe our 
administration's proposal, based on other Caribbean nations' earlier 
proposal, is a reasonable offer and one that has the greatest chance of 
bringing about an immediate end to the bloodshed.
  Members of the Senate need to understand that, really, there are 
three forces at play here. There is the Aristide government; there is 
the legitimate political opposition in the country; and then there are 
the thugs, and we can use no other term to describe them but the thugs 
who are trying to overthrow the Government.
  Let there be no mistake about it. These are not democrats, with a 
small ``d.'' They care not for democracy. When we talk about the 
political opposition we mean just that, the political opposition, the 
legitimate political opposition in Haiti. It is not associated with 
these thugs.
  So we call upon them today, the political opposition, to agree to the 
proposal made by the U.S. Government. President Aristide has agreed to 
this. We ask, and believe it is clearly in the best interests of Haiti, 
for the political opposition to agree to it as well.
  This agreement includes the setting up of a broad-based advisory 
council to Aristide's government. It also includes the appointment of a 
new Prime Minister. That is very significant. Further, it includes the 
disarming of gangs

[[Page S1432]]

aligned with Aristide's Lavalas Family Party.
  I urge the opposition groups to accept this because, quite candidly, 
this proposal is the best hope for creating a coalition government that 
can stop the violence and a coalition government that can be accepted 
by the international community and can be respected on the world stage.
  The fact is, unless agreement is reached and unless the violence 
stops, there will be serious consequences for our hemisphere, for 
Haiti, and, yes, for the United States. We do not know what is going to 
happen in Haiti, but as we think about what our response might be if in 
fact settlement cannot be reached or if in fact a settlement is reached 
and the violence continues, we need to keep in mind a few basic facts.
  First, Haiti is in our neighborhood and what happens in our 
neighborhood affects the United States. Haiti is a nation that lies 
only about 800 miles from our shores and is, therefore, less than a 
1\1/2\ hour flight from Miami.

  Second, amazingly there are at least 20,000 U.S. citizens living in 
Haiti today. Let me repeat that. The official estimate is that there 
are at least 20,000 U.S. citizens living in Haiti today. These are 
missionaries; these are doctors; these are nurses and other U.S. 
citizens. No one knows for sure how many U.S. citizens are actually 
down there. They are, so to speak, embedded all throughout the country.
  The reality is that an awful lot of humanitarian workers are simply 
not going to flee. They are not going to leave this Nation no matter 
what our advisories say. They are there simply to help the people of 
Haiti and they are going to stay. They are going to stay to help the 
children. They are going to stay to help the elderly. They are going to 
stay to help the sick. They are not going to abandon the people. 
Therefore, we have an obligation as a country to protect them and we 
need to be concerned about them.
  Furthermore, if the violence does not end, then we in the United 
States will once again be seeing boats swollen with Haitians, risking 
their lives for the chance of a better life. Our Coast Guard will be 
out there having to stop them and we will be seeing them floating 
toward Miami and the Florida shores.
  No one knows what the future will hold. We have watched on the news. 
We have read in the newspapers as these thugs, these rebels have taken 
over most of the main cities of Haiti--all of the main cities of Haiti, 
except Port-au-Prince. No one knows what will happen next. I said the 
hope is there will be agreement reached between the opposition, 
legitimate political opposition and the Aristide government. But if we 
assume the violence will continue, if we assume these thugs, these 
insurgents do what they say they are going to do and they move toward 
Port-au-Prince, no one can predict what will happen. But it is 
certainly not out of the realm of possibility that there will be a 
bloodbath in Port-au-Prince.
  There is no army. President Aristide, tragically--we have seen the 
police corrupted. There is no real police force of which to speak. So 
what Aristide has done is he has armed the gangs of Port-au-Prince. So 
there are arms everywhere in Port-au-Prince. They are the ones who 
would be there to ``defend'' Port-au-Prince.
  So you would have certainly the potential of the gangs of Port-au-
Prince with their guns versus the insurgents coming in, and the people 
who would be the victims would be the children, the women, and the 
elderly would be caught in that tragic crossfire. That very well could 
be the scene that we will see unfold in front of us on CNN, on the 
network news.
  Those are things we need to contemplate in the days ahead as we think 
about what our reaction might have to be. I believe our administration 
has taken the right steps. Mr. Roger Noriega, representing the 
administration, went to Haiti and made this proposal. It was the right 
thing to do. It was a good proposal.
  Haiti is out of time. I, again, urge the opposition leaders, the 
legitimate political opposition leaders to accept the administration's 
proposal. It is clearly in Haiti's national interest. If the opposition 
doesn't accept the proposal without question, the situation will spiral 
out of control very quickly. It may, in fact, spiral out of control 
anyway, but clearly it will spiral out of control if it is not 
accepted. If it does spiral out of control, the United States needs to 
be prepared to act in our own national self-interest.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Dole). The Senator from Wyoming.
  Mr. ENZI. Madam President, our Nation's medical litigation system is 
broken and we need to start working to fix it. I urge my colleagues to 
vote for cloture on the Gregg-Ensign bill. It is time to stop 
filibustering and to start working.
  I just got back from Wyoming. They are having this same debate there. 
They don't trust us to finish it here. They are trying to finish it on 
a local basis. They are having a debate on a constitutional amendment 
to be able to do medical tort reform.
  I tell you, that is a very difficult thing. Litigation reform 
requires a constitutional amendment in Wyoming. That means there may be 
a vote of the people, but that can't happen until at least November and 
we are in a crisis in Wyoming right now. We are not the only State in a 
crisis.

  Last year, we brought a medical litigation reform bill to the Senate. 
The legislation would have placed reasonable limits on the amount of 
money attorneys can take from a verdict or a settlement in an injured 
patient's favor. The bill also would have limited awards for punitive 
damages and noneconomic damages. In other words, the pain and suffering 
awards.
  The bill would not have limited awards to compensate patients for 
economic losses. This is an important point for everyone to keep in 
mind. If a judge and jury were to decide a person suffered an injury 
due to a doctor's mistake or a hospital's negligence, that person would 
be entitled to receive full compensation for their economic loss, 
including everything from rehabilitation to lost wages resulting from 
their injury. I cannot stress this point enough. The bill would not 
have limited awards for any part of economic losses.
  What the bill would have done is place a ceiling on noneconomic 
damages. The bill would have limited the maximum award for noneconomic 
damages to $250,000 in States that do not have their own limits on such 
awards.
  In Wyoming, we do not currently have limits on noneconomic damage 
awards. We do not have limits despite evidence which shows limits on 
noneconomic damage awards have helped control the cost of medical 
liability insurance premiums in other States.
  As a result, people in Wyoming are losing access to affordable health 
care in their communities. The rising cost of medical liability 
insurance in my State of Wyoming is forcing doctors to curtail their 
practices or close them entirely. We have a shortage of doctors in 
Wyoming as it is and the cost of medical liability insurance is making 
a bad problem even worse.
  To address this problem, I cosponsored the medical litigation reform 
bill we offered for debate last year. We needed 60 Members in this body 
to vote in favor of working on the bill to get past a filibuster, but 
only 49 voted in favor. So it was back to the drawing board.
  Here we are again, 9 months later, with a new bill. It is ironic we 
are here 9 months later because this bill focuses on mothers and 
babies.
  Medical liability crisis affects many patients and doctors. Those it 
affects most are the expectant mothers and their obstetricians.
  Doctors who deliver babies have a dubious honor when it comes to 
medical liability insurance. The typical obstetrician pays more in 
annual premiums for professional liability insurance than almost any 
other type of doctor. Part of the reason is that in some states the 
child has the right to sue when they get to adulthood. That is a pretty 
long tail on the liability. If the parent fails to sue, the child can 
sue.
  Some of my colleagues have pointed out the statistics and numbers on 
this crisis, so instead I will tell a short story about an obstetrician 
in Wyoming. I told this story in July so I apologize if you have heard 
it before, but it is worth retelling.
  There was an article in the Washington Post about a year ago about 
the medical liability crisis. The reporter for the Post had gone to 
Wyoming to

[[Page S1433]]

see how the crisis affected a State already struggling to keep enough 
doctors as it is.
  According to the article in the Washington Post, the doctor in 
Wheatland, WY, went to a high school basketball game between the 
Wheatland Bulldogs and the nearby Douglas Bearcats.
  Here is Wheatland on a map; here is Douglas. Wyoming is a pretty big 
State. This map shows about a quarter of the State. Each of the 
counties on this map is bigger than Delaware, and the distance between 
Wheatland and Cheyenne is pretty close to the length of Delaware. We 
are talking about a lot of distance, but not many people. One of these 
counties the size of Delaware has 2,500 people living in it total, so 
we have a lot of land, few people, and consequently not many doctors. 
Wheatland and Douglas are 60 miles apart. That qualifies as nearby in 
my State.
  Now the doctor had just announced he would not be delivering any more 
babies in Wheatland or Douglas because of the cost of liability 
insurance. The irony is he delivered just about every player on both 
teams at that basketball game.

  I would like to read a section of this story. The name of the doctor 
is Willard Woods:

       The national malpractice insurance crisis . . . hit home 
     for Wheatland this winter when Woods' insurance company 
     joined a number of national malpractice carriers in declaring 
     bankruptcy.

  I emphasize that last part. Malpractice carriers are declaring 
bankruptcy. Some people say these companies are making out like bandits 
on medical liability insurance. If they are, they would not be 
declaring bankruptcy. These insurance companies are in crisis. They are 
raising their rates to cover the costs from legal cases and 
settlements.
  Back to the quote.

       That left only two firms selling malpractice insurance in 
     Wyoming, and neither one was willing to take on a new 
     obstetrical coverage. Woods did get insurance for his 
     gynecological practice--a branch of medicine that spawns far 
     fewer lawsuits than delivering babies--but the annual premium 
     cost him $116,000, three times what he paid the year before.
       In this wheat-growing region of eastern Wyoming, where 
     medical services are sparse and scattered, the impact is 
     acute. Platte County, with a population of less than 9,000, 
     has five doctors, equal to the number of veterinarians.
       Women with normal pregnancies can still have their babies 
     delivered in the hospital; Woods's two partners, both general 
     practitioners, share the delivery duties.
       ``But if you have any kind of problem like I did,'' said 
     Wheatland mother Kori Wilhelm, who has a genetic blood 
     mutation that makes pregnancy dangerous, ``you have to go to 
     Cheyenne now''--and that's a 140-mile round trip--``to get 
     the specialized treatment we used to get right down the 
     street at Dr. Woods's clinic.''

  Put yourself in that woman's shoes. Until the cost of medical 
liability insurance drove Dr. Woods out of obstetrics, a woman 
experiencing a difficult pregnancy in Wheatland could get specialized 
care in her own community. Now that woman has to drive 140 miles round 
trip for proper prenatal care and to have a specialist deliver her 
baby.
  Madam President, 140 miles is a long way for anyone to travel to see 
a doctor. It is even a longer 140 miles for a pregnant woman. And it is 
truly a long 140 miles for a pregnant woman in the middle of winter 
when high winds and blowing snow often force the highway department to 
close the interstate between Wheatland and Cheyenne.
  I wish this were the only story I could tell about the crisis in 
Wyoming, but it is not.
  I could talk about Dr. Jack Richard, an OB/GYN who reluctantly 
retired last year due to his high cost of medical liability insurance. 
Dr. Richard served the people of Casper, WY, for more than 30 years, 
but he was not ready to retire at the age of 61. Dr. Richard had 
already stopped providing routine obstetrical care in 2000, but even as 
a part-time physician, his premiums had doubled since then.
  I could talk about Lisa Minge, an OB/GYN who left my hometown of 
Gillette in November and moved her practice to Boise, Idaho. She cited 
the high cost of liability insurance as one of the factors in her move 
to Idaho, which has a $250,000 limit on noneconomic damage awards.
  I could talk about Dr. Bert Wagner, an OB/GYN in Cheyenne who stopped 
delivering babies this year to avoid the high cost of insurance for the 
obstetrical side of his practice.
  Or I could talk about a group of family practice doctors in Cheyenne 
who are trying to decide whether they can keep delivering babies. The 
four doctors in this group saw their premiums go from $65,000 in 2003 
to $110,000 in 2004. This is despite the fact they had already limited 
the number of babies they would deliver to 30 per doctor per year to 
avoid having to pay the full obstetrical rate. I don't know what you do 
if you are the mom who needs the 31st baby delivered.

  I have more stories I could tell, but I am not sure what good it 
would do. I am an optimist by nature, but I am afraid I am pessimistic 
about the outcome of this vote.
  Nevertheless, I commend Senators Gregg and Ensign and our majority 
leader, Dr. Frist, for trying again. They have developed a bill that is 
focused on one of the most critical parts of this nationwide crisis--
the plight of expectant mothers who depend on obstetricians to provide 
a safe and healthy delivery for their babies.
  What Senators Gregg and Ensign have proposed is a modest approach 
that will provide some measure of relief to doctors who are squeezed by 
the high cost of medical liability insurance. The bill puts reasonable 
limits in place on the amount of money attorneys can take from 
settlements and verdicts awarded to injured mothers and babies.
  The bill does not limit the amount of money juries and judges can 
award to cover lost wages, rehabilitation, special services, and other 
economic losses an injured mother or child might face. It simply puts a 
reasonable limit on what judges and juries can award for punitive and 
noneconomic damages, which are the types of unpredictable awards that 
are contributing to this health care access crisis.
  I have noticed something interesting during our debates on this 
issue. While we have been debating the pros and cons of reform, no one 
is standing up to defend our current system of medical litigation. No 
one is standing up to defend our current system. We are talking about 
limits on noneconomic damages, or the role of the insurance industry, 
and Senators are saying: Yes, there is a problem, but the bill before 
us doesn't solve it.
  One thing I have not heard is a rousing defense of our medical 
litigation system. Even some of the lawyers in this body have agreed 
frivolous lawsuits are a problem and our medical litigation system 
needs reform.
  Why aren't we hearing anyone defend the merits of our current medical 
litigation system? It is because it is indefensible. Our system does 
not work. It simply does not work for the patients or for the health 
care providers.
  The bill we are debating today is a good bill for mothers and babies 
and the doctors who serve them. But even the sponsors would probably 
admit it is a short-term measure that does not address the fundamental 
problems with our medical litigation system. This is an important bill, 
but it is just a tourniquet to stop the bleeding. It is not going to 
heal our broken system.
  I would like to share with my colleagues a brief analysis of our 
medical litigation system. It comes from this book, ``Fostering Rapid 
Advances in Health Care, Learning From System Demonstrations,'' 
published by the Institute of Medicine of the National Academy of 
Sciences.
  Let me quote a section of this book:

       There is widespread agreement that the current system of 
     tort liability is a poor way to prevent and redress injury 
     resulting from medical error.
       Most instances of negligence do not give rise to lawsuits, 
     and most legal claims do not relate to negligent care. Many 
     injured patients do not know they have suffered an injury 
     resulting from error, and those who go through the legal 
     process often do not even recover the cost of their continued 
     health care.
       A few plaintiffs and their attorneys, however, win large 
     sums that may be disproportionate to their injuries or 
     unrelated to the defendant's conduct. Prolonged, adversarial 
     haggling over claims by plaintiffs' attorneys and liability 
     insurers alienates both providers and patients, and generates 
     legal fees and administrative expenses that consume more than 
     half the cost of liability insurance premiums.
       The apparent randomness and delay associated with this 
     pattern of accountability not only prevent severely injured 
     patients from receiving prompt, fair compensation, but 
     destabilize liability insurance markets and attenuate the 
     signal that liability is supposed

[[Page S1434]]

     to send health care providers regarding the need for quality 
     improvement. Fear and distrust breed inefficient ``defensive 
     medicine,'' and lead to missed opportunities for information 
     exchange and apology that might avoid lawsuits in the first 
     place.
       The shortcomings of the current malpractice system 
     therefore come from three directions, all of which have 
     contributed to the present crisis: inefficient and 
     inequitable legal processes for resolving disputes, 
     problematic responses by clinicians to the threat and cost of 
     liability, and volatile markets for liability insurance. 
     Although some states face greater insurance instability than 
     others as the result of different legal standards, public 
     expectations, and professional cultures, no state is immune 
     to the threat of service interruptions affecting physicians, 
     hospitals, and other health care providers.

  These are not my words. They are not the words of personal injury 
lawyers. They are not the words of tort reform advocates either. As I 
pointed out earlier, these words are from the National Academy of 
Sciences, specifically the Institute of Medicine. This organization was 
created by the Federal Government and chartered by Congress to provide 
unbiased and evidence-based advice on health policy.
  This congressionally chartered body issued a report in 2002 that 
called upon the Federal Government to support demonstration projects in 
the States to evaluate alternatives to current medical tort litigation. 
In response, I have introduced a bill in the spirit of this report.
  This bill, the Reliable Medical Justice Act, would authorize funding 
for States to create alternatives to current tort litigation. The 
funding would cover the costs of planning and initiating proposals 
based on models outlined in the bill or other innovative ideas.
  My bill would require participating States and the Federal Government 
to work together in evaluating the results of the alternatives as 
compared to traditional tort litigation. This way, all States and the 
Federal Government could learn from new approaches.
  As I speak, some States are already looking into alternatives to 
medical litigation as we know it. My home State of Wyoming is one of 
them. Another is Massachusetts, where Governor Romney is working with 
Harvard University on an innovative project. Another is Florida, where 
the Governor's task force recommended the implementation of projects 
along the lines of those suggested in my bill. We should encourage and 
support these States and others that are considering similar ideas.
  Believe it or not, both Newt Gingrich and the editors of the New York 
Times have endorsed the idea of creating and evaluating alternatives to 
medical litigation. If Newt Gingrich and the New York Times are in the 
same tent on an issue, maybe there is room in that tent for most of my 
fellow Senators to support it as well.
  I support the Gregg-Ensign bill. It provides some short-term relief 
for mothers and babies and their doctors. A lot of my colleagues will 
be voting with me, and a lot will probably vote against me. Regardless 
of how we vote on this legislation before us, we must acknowledge there 
is a medical liability crisis, and we must work together to find a 
solution.
  Our medical litigation system is failing us. Medical lawsuits are 
supposed to compensate people fairly and deter future errors. But most 
patients do not get fair and timely compensation, and there is nothing 
to show the lawsuits are deterring medical errors or making patients 
safer.
  I hope my colleagues will vote in favor of providing mothers, babies, 
and their doctors with some immediate relief through the Gregg-Ensign 
bill. I also hope they will look seriously at my legislation, S. 1518, 
which would put us on the road to replacing medical lawsuits with 
better and fairer systems for compensating and protecting patients. We 
need to pass both of these bills before we can say we have begun to 
solve this medical liability crisis.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER (Mr. Thomas). The Senator from North Carolina.
  Mrs. DOLE. Mr. President, 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 our 
doctors are trained in groundbreaking procedures. Indeed, our Nation 
has accomplished much in the area of health care.
  But today, the future of our world-renowned health care system is at 
risk. Some trial lawyers have nearly crippled the system by filing 
hundreds of frivolous lawsuits each year and defeating efforts to place 
limits on these lawsuits and the big-money fees lawyers earn off of 
them.
  Nineteen of our States are in a full-blown medical liability crisis, 
according to the American Medical Association. North Carolina is among 
the hardest hit, particularly our OB/GYNs, who face constantly rising, 
astronomical premiums just to stay in business. Many have been forced 
to move or quit their practices. This problem is particularly evident 
in our rural areas where some women have had to drive for miles just to 
find someone to deliver their baby. This is unacceptable.

  It is understandable why doctors are leaving their practices, when 
the State's top five jury awards in 2001 ranged from $4.5 million to 
$15 million. The annual number of settlements greater than $1 million 
for medical liability cases has more than tripled between 1993 and 
2002.
  Meanwhile, women in our States are struggling.
  Consider these facts: Obstetricians in western North Carolina are 
seeing their insurance premiums increase from 50 to 100 percent. 
Women's Care, P.A., the largest OB/GYN physician group in North 
Carolina saw its premiums increase 30 percent last year--for 3 times 
less coverage. One of its obstetricians will soon stop delivering 
babies. Others may join him.
  And there are more stories. Dr. Mary-Emma Beres of Sparta, NC, a 
small town in the northwestern part of the State with a population just 
under 2,000, had to stop delivering babies after facing a 300 percent 
increase in her malpractice premiums. Her departure left only one 
obstetrician to handle high-risk cases. And it meant some women who 
needed C-sections had to endure a 40-minute ambulance ride to another 
hospital to deliver their baby.
  Then there is Dr. John Schmitt. He is an OB/GYN who left his practice 
in Raleigh after seeing his insurance premiums triple from $17,000 to 
$46,000. He decided instead to join the medical school faculty at the 
University of Virginia. One of his patients, Laurie Peel, highlighted 
this dilemma best when she said, ``When you are a woman, you try to 
find a gynecologist who will take you through lots of things in life. 
You develop a relationship with your doctor. To lose someone like that 
is very hard.''
  It is time to stop this deplorable situation that leaves the most 
vulnerable and sickest among us as the real victims. No one in this 
country should have to struggle like this for health care. The America 
I know is better than that.
  Doctors who do remain in business 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.
  The legislation before us offers a solution that works. It is modeled 
after California's law which has been in place since 1975 and has kept 
premiums down in that State. This legislation does not cap damages. As 
you know, there are cases where compensation is absolutely justified 
and deserved. Under S. 2061, 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. 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 these in the bill.
  Each week in North Carolina, nearly 2,200 babies are born and 300 of 
those babies are born early.
  This legislation deals with the immediate crisis facing OB/GYNs, so 
that at the very least women can have the best health care available to 
them when they deliver their babies.
  Today we have a choice. We can vote with those 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

[[Page S1435]]

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 this bill for our patients who 
need it most.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. THOMAS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Dole). Without objection, it is so 
ordered.
  Mr. THOMAS. Madam President, I join my partner from Wyoming in 
supporting what is one of most important bills we will have before us; 
that is, medical liability, the opportunity for us to do something 
about the cost of health care.
  As I go about town meetings in my State of Wyoming, the topic I hear 
the most about is the cost of health insurance. Obviously, health 
insurance costs are driven by the cost of health care; in this case, of 
course, some directly as a matter of the kinds of payments that have to 
be made for protection under medical malpractice liability insurance.
  I am very pleased to join my colleagues to talk a little about an 
issue that has had a severe impact on health care. It is not the total 
answer, but it is a step in the right direction. We are finding 
ourselves in a situation where we have very good health care, excellent 
health care, which we all want. We all know it is going to be 
expensive, but we find ourselves in a position where we are almost 
cutting off access to health care because of the cost.
  We have 43 million people who do not carry insurance because of the 
cost. Obviously, we help take care of those people when they have 
something without the ability to pay, and the insurance goes up for 
those who do pay. The insurance goes up for the hospitals and the 
doctors who don't get paid for all their patients. So it is a broad 
problem but one we can handle. And one of the issues that is right 
before us is the idea of doing something on comprehensive medical 
liability which, by the way, our friends on the other side of the aisle 
filibustered last year. I hope they will not do it again this year.
  I come from a small State which also has some impact. We have fewer 
insurance carriers in our State because there isn't the kind of market 
to bring people in. We have many communities where there are only one 
or two practitioners and some where there are none. When we lose a 
practitioner, it makes it very difficult for that community.
  Wyoming is one of the 19 crisis States for medical liability 
designated by the American Medical Association. A recent op-ed by Wendy 
Curran, executive director of our Wyoming Medical Society, I think 
described some of the issues regarding the need for liability relief in 
our State. I think she laid it out quite well:

       Wyoming is losing OB/GYNs, emergency trauma surgeons and 
     general practitioners because of high malpractice insurance 
     premiums.

  It is interesting because Cheyenne, WY, is in the corner of our State 
next to the front range in Colorado and we have physicians living in 
Cheyenne and practicing in Colorado because they have this kind of 
protection and this kind of limitation on malpractice suits.

       Wyoming physicians pay higher malpractice premiums than any 
     of the surrounding States, which have all enacted liability 
     reform.

  It is kind of interesting that in our small State we are in the 
process of talking about that now. Whether it will be done in our 
legislature, which is meeting now, I don't know. The fact is, it is a 
budget session of 20 days and it takes two-thirds votes to get it in. 
It is going to be difficult to do.

       Because of the fear of being sued, money is unnecessarily 
     spent on defensive medicine each year, which we all pay for--
     $70 billion to $126 billion a year.

  I had the real opportunity a while back in one of our rural areas to 
talk to a physician, who I think was pretty much retired but had been 
in Africa and had written books, and he had an interesting observation. 
We think about the lawsuits or the settlements that are very costly. He 
mentioned another aspect of this that is costly. In years past, when 
you hurt your arm, you could go in to your family practitioner and he 
or she would look at it, fix it, and send you home or put a cast on if 
he had to. Now, because of the possibilities of being sued, they have 
to send you to a specialist first and take a few more tests. So medical 
care is much more expensive notwithstanding the idea of the suits.

       A recent survey indicates that 71 percent of Wyoming voters 
     support liability reforms.

  So I think most people do believe it is not the full answer to the 
cost of health care, but it is a movement we can make, a step we can 
take that will indeed make a difference. So I support, as my friend 
from Wyoming and the Senator from North Carolina do, the approach taken 
by Senators Gregg and Ensign in this bill.
  OB/GYNs have probably been affected the most, and it is impacting 
access to the care for pregnant women. We have had bills before that 
went clear across the medical spectrum, and I think that is probably 
the appropriate way. But this singles out those issues that are so 
prevalent and difficult. Rural areas are disproportionately impacted, 
as there is often no other provider available, or where an OB/GYN is 
forced to close up shop. We have had that very thing happen in small 
towns, where there is only one OB/GYN. On the other hand, in some towns 
there are none and the general practitioners are concerned about 
delivering the babies.
  We had one physician leave a little town called Wheatland, WY. He 
delivered babies in three counties. His malpractice premiums rose to 
over $100,000 a year in a little community, in addition to what he had 
paid before. Pregnant women in Newcastle and Weston County have to 
travel 80 miles for babies because high medical malpractice premiums 
have forced three local physicians to abandon their practices.

  Dr. Hugh DePalo, a practicing OB/GYN in Casper, WY, indicates that 
his premiums have increased by 300 percent in the past year. It is 
amazing.
  According to the Wyoming Health Care Commission, for every dollar 
malpractice insurance companies make in premiums in Wyoming, they must 
pay $1.25 on suits and settlements. Also according to the Wyoming 
Health Care Commission, some of our hospitals are paying medical 
malpractice premiums of $1,000 to $3,000 per birth, which makes 
delivering babies very unprofitable. Of course, they still do it, but 
somebody else has to pick up the tab.
  It is interesting that these practitioners in Wyoming pay $20,000 to 
$30,000 more a year in malpractice insurance than those in Colorado, 
which has a cap of $250,000.
  Since all the States around us have passed liability reforms, we have 
a tough time recruiting all types of practitioners. We have underserved 
areas. I am chairman of the caucus here on rural health care, and we 
have been pleased with some of our accomplishments, but rural health 
care is different. For a long time, we had different fees paid to rural 
than to urban hospitals. The fact is, because of low volume, it could 
well be that the cost per case for rural hospitals is even higher.
  One of the big costs of health care, of course, is the new equipment. 
We all want to have ``Cadillac'' health service, but when you have 
small volumes, you cannot do that. In our State, we have to have a 
system because you are not going to have all practitioners, specialists 
in every community. Something has to be set up so that it is available. 
So it is a difficult thing. We make it much more difficult by having 
these very high premiums. So we need to do something to protect, in 
this instance, our OB/GYN service for women and their babies and to set 
a reasonable limit on noneconomic damages. Keep in mind that if 
somebody has damages that are economic--this is not a limit on that; 
this is noneconomic damages. We have to provide for a quicker review of 
liability claims so they don't go on for years. We need to assure that 
claims are filed within a reasonable time. We need to educate people 
that frivolous lawsuits only add to the overall costs of health care 
for everyone.
  Sometimes we say there haven't been many lawsuits. The fact is there 
may not be a lawsuit but there is a settlement, which also, because of 
the predicted outcome of the lawsuit, is a very high settlement and the 
costs are still there.

[[Page S1436]]

  So I think the Senate should act on this important legislation that 
contains provisions that allow injured patients to recover economic 
damages--that is fair and legal--such as future medical expenses and 
loss of future earnings. Punitive damages are reasonably limited to the 
greater of two times the amount of the economic damages or $250,000. It 
authorizes periodic payments to injured parties rather than one lump 
payment. It preempts State law unless such law imposes greater 
protections for the health care providers and organizations.
  So I believe it does allow doctors to practice responsibility without 
the excessive testing, in reference to specialists, which is part of 
the growing costs of health care. I think this is a step in the right 
direction. But we have spent a great deal of time talking about 
Medicare and Medicaid, and we always talk about VA. We are going to 
have to look at the broad view of health care now.
  Again, we all want great health care. That ought to be what we go 
for. But it becomes so expensive that it precludes lots of families 
from participating. That is something we don't want to have happen. I 
urge my colleagues to vote for cloture on S. 2061. I think it could be 
one of the most important votes in this legislative year.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEVIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Flawed Intelligence Assessments

  Mr. LEVIN. Madam President, there is now confirmation from the 
administration's own leading weapons inspector that the intelligence 
community produced greatly flawed assessments about Iraq's weapons of 
mass destruction in the months leading up to the invasion of Iraq. It 
is my opinion that flawed intelligence and the administration's 
exaggerations concerning Iraq's weapons of mass destruction resulted 
from an effort to make the threat appear more imminent and the case for 
military action against Iraq appear more urgent than they were.
  However, regardless of whether one thought the threat was imminent or 
not to proceed as unilaterally as we did, our intelligence was so far 
off the mark and the descriptions of that intelligence by the 
administration were even further off the mark that for the sake of the 
future security of this Nation, there needs to be an independent 
assessment not just of the intelligence but also the characterization 
by the administration of that intelligence.
  Today, I want to raise a related issue: how the Director of Central 
Intelligence, George Tenet, misled the American people before the war 
about the status of our sharing of U.S. intelligence information with 
the United Nations inspectors.
  Director Tenet, after 12 months of indefensible stonewalling, 
recently relented and declassified the material that I requested, which 
makes clear that his public testimony before the Congress on the extent 
to which the United States shared intelligence with the United Nations 
on Iraq's weapons of mass destruction programs was false.
  Prior to the war, the CIA identified 550 sites in Iraq as possibly 
having weapons of mass destruction or prohibited WMD materials or 
equipment. They were called ``suspect sites.'' Madam President, 150 of 
those sites were so-called ``top suspect'' sites where the CIA believed 
it would be more likely to find such items. The 150 top suspect sites 
were, in turn, divided into three categories: High priority, medium 
priority, and low priority.
  At two public hearings shortly before the war on February 11 and 
February 12, 2003, I pressed Director Tenet on the issue of how many 
suspect WMD sites were shared with the United Nations. On February 12, 
Director Tenet said the following:

       When the inspections began, we drew up a list of suspect 
     sites which we believe may have a continuing association with 
     Iraq's WMD programs. The list is dynamic. It changes 
     according to available intelligence or other information that 
     we receive.
       Of this set number of suspect sites, we identified a 
     specific number as being highest interest, highest value, or 
     moderate value because of recent activities suggesting 
     ongoing WMD association or other intelligence information 
     that we received.

  And here is his bottom line:

       As I said yesterday, we have briefed all of these high 
     value and moderate value sites to UNMOVIC and the IAEA.

  Mr. Tenet did not say ``some;'' he did not say ``most;'' he said 
``all.'' We have briefed ``all'' of these high value and moderate value 
sites to the U.N.
  I told Director Tenet at the time in two public hearings that he was 
wrong and that classified numbers told a different story. On March 6, 
2003, Director Tenet again stated in writing that:

       We have now provided detailed information on all of the 
     high value and moderate value sites to UNMOVIC and the IAEA.

  National Security Adviser Condoleezza Rice made the same 
representation in a letter to me on March 6, 2003, in which she said:

       United Nations inspectors have been briefed on every high 
     or medium priority weapons of mass destruction, missile, and 
     UAV-related site the U.S. intelligence community has 
     identified.

  On January 20, 2004, the CIA, after a year of resistance, finally 
declassified the number of ``high and medium priority 'top suspect' WMD 
sites'' where the CIA shared information with the U.N. inspectors prior 
to the war in Iraq.
  In doing so, they finally acknowledged that 21 of the 105 high and 
medium priority top suspect sites on the CIA list were not shared with 
the United Nations before the war. So the record is now clear that 
Director Tenet twice gave false information on this matter to the 
public and to the Congress shortly before the war.
  The January 20, 2004, letter from the CIA states their position. The 
position of the CIA is that it provided the United Nations ``with the 
intelligence that we judged would be fruitful in their search.'' 
History will, and a thorough investigation would, determine the 
accuracy of that statement. But the public can now judge the accuracy 
of Director Tenet's public statements before the war that all high and 
medium priority top suspect sites were shared with the United Nations. 
All such sites were not shared and Mr. Tenet's repeated statements were 
false.
  Last February, Director Tenet could have answered honestly and said: 
We have not given the U.N. inspectors all the high and medium priority 
top suspect sites and this is why, Senator.
  Instead, he chose a different path, one of misstating the facts. I 
can only speculate as to Director Tenet's motive. If he had answered 
honestly and said that there were 21 high and medium priority top 
suspect sites that we had not yet shared with the United Nations, it 
would have put an obstacle in the path of the administration's move to 
end U.N. inspections and proceed to war. It would have been more 
difficult for the administration to proceed to war without first having 
shared with the U.N. our intelligence on all high and medium priority 
top suspect WMD sites and it would have reinforced widely held public 
and international sentiment that we should allow the U.N. to complete 
their inspections before going to war.
  In other words, honest answers by Director Tenet might have 
undermined the false sense of urgency for proceeding to war and could 
have contributed to delay, neither of which fit the administration's 
policy goals. For the last year, I have attempted to have declassified 
the number of high and medium priority top suspect sites that the U.S. 
did not share with the United Nations. The CIA stonewalled doing that 
for no reason that I can think of except that the facts are 
embarrassing to them. Surely, that is no reason to withhold information 
from the American people and to give inaccurate information repeatedly 
to Congress in public testimony. We rely on our intelligence agencies 
to give us the facts, not to give us the spin on the facts.
  The accuracy and objectivity of intelligence should never be tainted 
or slanted to support a particular policy. What is badly needed and 
what is lacking so far is candor about how we were so far off in the 
assessments of Iraq's possession of WMD. The lack of candor is one of 
the many reasons an independent commission should be appointed by 
Congress, not just by the President, to look at not just how the 
intelligence came to be so flawed but

[[Page S1437]]

how that flawed intelligence came to be further exaggerated by the 
administration in order to support its decision to initiate military 
action.
  One small part of this picture is this recent letter from the CIA 
that finally makes clear the truth. The CIA did not share all of the 
top suspect WMD sites in Iraq that Director Tenet said twice publicly 
before the war that it had shared with U.N. inspectors. It is more 
evidence of the shaping of intelligence to fit the administration's 
policy objectives.
  I ask unanimous consent that the letter from the CIA that I have 
referred to on this matter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                  Central Intelligence Agency,

                                 Washington, DC, January 20, 2004.
     Hon. Carl Levin,
     Committee on Armed Services,
     U.S. Senate,
     Washington, DC.
       Dear Senator Levin: I am responding to your letters of 23 
     October 2003 and 8 January 2004 regarding declassification of 
     specific information concerning the Intelligence Community's 
     (IC's) sharing of information on Iraqi suspect weapons of 
     mass destruction (WMD) sites with the United Nations (UN) 
     inspectors.
       I want to begin by ensuring that there is a mutual 
     understanding of what has been declassified thus far with 
     respect to Iraqi suspect WMD site numbers and the sharing of 
     this information with the UN inspectors.
       In our 23 May 2003 letter, we provided the number of 
     approximate Iraqi suspect WMD sites identified by Central 
     Intelligence Agency, 550; and, the number of suspect sites 
     where inspectors were more likely to find something than at 
     other sites, 150.
       In our 11 July 2003 letter, we provided the number of 
     suspect WMD site packages provided to the UN inspectors, 67.
       In our 9 and 13 May briefings to the SSCI staff, we 
     explained that this number represented the number of site 
     packages shared with the UN inspectors at the IC initiative. 
     The 67 number does not include site packages provided 
     pursuant to UN inspectors' requests,
       Your most recent letters concern three specific requests:
       The number of high and medium priority sites on the IC's 
     150-site top suspect site list. Answer: High: 37; Medium: 68.
       The number of high and medium priority sites where the IC 
     shared information with the UN, including briefing packages. 
     Answer: High: 33; Medium: 51.
       The number of high and medium priority sites where the IC 
     shared briefing packages with the UN. Answer: High: 21; 
     Medium: 30.
       The 21 high and 30 medium site packages provided to the UN 
     inspectors represent site packages provided at the IC's 
     initiative and pursuant to UN inspectors' requests. The 
     number of high and medium site packages provided to the UN 
     inspectors solely at the IC's initiative are 20 and 25, 
     respectively.
       These numbers have been declassified. However, in order to 
     ensure that the numbers are accurately characterized, it is 
     important to reiterate what has been previously provided in 
     earlier correspondence to you regarding the suspect WMD site 
     information shared with the UN inspectors. I specifically 
     call your attention to the Director of Central Intelligence's 
     11 July 2003 letter, signed by the Deputy Director of Central 
     Intelligence, which states:
       ``. . . CIA provided UNMOVIC with the intelligence that we 
     judged would be fruitful in their search for prohibited 
     material and activities in Iraq. We did not have and we never 
     claimed to have, smoking-gun information that would lead the 
     inspectors to a quick find. We selected the best sites we had 
     that we judged would have the best chance of finding 
     something. It is important to remember that we had given the 
     UN a vast amount of data in the 10-plus years we cooperated 
     with them on inspections, including data on many of the sites 
     long suspected of containing illicit activity. Thus, when 
     inspections resumed last year, we wanted to focus our effort 
     on giving the UN new data that we had not told them 
     previously. We started by considering about 150 sites that 
     seemed promising--we further refined that list because many 
     of these sites were already known to the UN inspectors, had 
     been the subject of previous discussions by CIA and those 
     organizations, and on which we had no new information. By the 
     time inspections stopped, we had developed site packages for 
     67 sites. These included the sites on which we had the best 
     intelligence--on which we had pertinent and possible 
     `actionable' information. We would not have helped the UN 
     inspectors by giving them large volumes of data they already 
     had. The UN relied on us to prioritize the information rather 
     than simply to give them everything we had on every possible 
     site in Iraq.''
       We ask that the numbers and text be used in tandem when 
     discussing Iraqi WMD suspect sites and site packages provided 
     to the UN inspectors.
       I believe that with this response all your requests for 
     declassification of Iraqi suspect site numbers have been 
     addressed.
           Sincerely,
                                             Stanley M. Moskowitz,
                                Director of Congressional Affairs.

  Mr. LEVIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BUNNING. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BUNNING. Madam President, today I rise to spend a few minutes 
talking about the need for medical malpractice reform in my State, 
along with the bill before us, S. 2061, the Healthy Mothers and Healthy 
Babies Access to Care Act.
  First, I commend the Senate leadership for bringing up this bill for 
consideration this week. It sends a signal to the American people that 
this is a high health care priority this year and that we have not 
given up the fight for real reform. As a father of 9 and a grandfather 
of 35, I believe there are very few things more important than 
providing mothers with the safest and healthiest environment to deliver 
their children.
  Unfortunately, because of the medical liability crisis in Kentucky, 
the health and safety of both mothers and their babies are being 
jeopardized. Personally, I believe the most effective approach to 
medical liability insurance reform is a comprehensive approach covering 
all health care providers.
  I hear all the time from doctors and hospitals across Kentucky about 
how they struggle to pay their skyrocketing premiums. Last May, the 
Joint Economic Committee found that total premiums for medical 
liability insurance doubled from 1992 to 2001, to reach $21 billion. I 
know hospitals and doctors are struggling under these increases. Last 
year, we had an opportunity to pass a comprehensive reform bill. 
Unfortunately, our opponents did not even give us a chance to fully 
consider the bill or have an up-or-down vote on it. Today we are 
attempting to fix the problem for just one of the specialities that has 
been the most severely affected by the increase in malpractice 
insurance premiums. Those are the OB/GYN doctors.
  Specifically, this bill would improve access to care for pregnant 
women by placing some reasonable limits on lawsuits against their 
health care provider. The bill provides unlimited awards for economic 
damages and places a $250,000 cap on damages for pain and suffering.
  The bill also ensures that health care providers will only be liable 
for their share of any damages in a lawsuit brought against an OB/GYN 
doctor, along with limited attorney's fees.
  All of these are steps in the right direction and the right thing to 
do. I urge my colleagues to vote for cloture tomorrow. The liability 
system we have now is badly flawed and broken and must be fixed. It 
encourages lawsuits and defensive medicine and forces doctors to become 
more worried about going to court than properly caring for their 
patients. This, in turn, leads to higher insurance premiums and gaps in 
care. Under our current liability system everyone loses, doctors and 
patients--everyone, that is, except the personal injury lawyers.
  It is obvious people are beginning to understand the impact that 
soaring medical malpractice premiums are having on their communities. 
In fact, a recent poll showed that 68 percent of Kentuckians support 
putting limits on medical malpractice awards. That is right, 68 percent 
of Kentuckians. That is an overwhelming number of Kentuckians 
supporting reform.
  I hear all of the time about how premiums rise, squeezing physicians 
financially, and affecting Kentuckians' access to quality health care. 
Last year, the American Medical Association added Kentucky to its list 
of crisis States. This means the current liability system is seriously 
eroding patient care. In Kentucky, physicians are choosing to close 
their offices or retire early. Others are packing up and moving to 
other States with more sensible insurance regulations.
  A study conducted by the Kentucky Medical Association shows that over 
a 3-year period, Kentucky had a net loss of 819 physicians. According 
to the study, over 1,200 physicians moved out of the State to more 
friendly communities, and 281 retired. Even worse, we are losing young 
doctors. In that time, 500 residents packed their bags and left

[[Page S1438]]

Kentucky. That means 58 percent of the residents who trained in the 
State moved elsewhere to practice. My State cannot continue to bleed 
physicians like this. It takes a toll on our communities and our 
patients.
  The American College of Obstetricians and Gynecologists also 
conducted a survey back in 2002 and found that 71 percent of the 
Kentucky physicians who responded to their survey have actually changed 
their practice--changed their practice from what they did because of 
the medical liability reform crisis that we are having. In my book that 
is completely unacceptable.
  They also estimate that 3,240 pregnant women in Kentucky are without 
OB/GYN care. If that is not a crisis, I don't know what is.
  The medical liability crisis not only affects physicians in private 
practice, it affects our hospitals as well. Last year, two hospitals in 
eastern Kentucky--Our Lady of Bellfonte Hospital in Russell and the 
Knox County Hospital in Barbourville--both completely stopped 
delivering babies. This puts mothers in rural areas at a much greater 
risk of complications. No expectant mother should have to drive past 
the hospital she has trusted for years to find one that will deliver 
her child. It doesn't make any sense. It just is not common sense.

  While the liability crisis clearly must be addressed for the entire 
country, individual States are trying to pass legislation to help the 
doctors within their own borders. I commend them for this effort. In 
Kentucky, the State senate recently passed a bill by a vote of 23 to 14 
that would allow Kentuckians to vote whether they want to amend the 
State constitution to allow for medical malpractice reform. Now it is 
up to the Kentucky House of Representatives to pass similar 
legislation. I believe the general assembly should pass a 
constitutional referendum and let Kentuckians vote on this issue since 
the crisis is threatening their access to care and ultimately costing 
them more in health care costs.
  I have consistently supported medical malpractice reform since I came 
to this Congress in 1986, and I will support S. 2061 this week. It is 
the right thing to do, and it is the right thing to do for my State.
  It is important that my colleagues take a stand and decide if they 
are with the mothers and children or if they are with the personal 
injury lawyers. Personally, I will be supporting the mothers and 
children in my State.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.


                            Jobs In America

  Mr. KENNEDY. Madam President, I would like to take a few moments of 
the time of the Senate to review one of the compelling issues facing 
the Nation, all across our country, and that is the state of our 
economy translated in ways that working families understand it--the 
state of jobs in America. How are people doing with the jobs they have? 
Are they working longer? Are they working harder? What has happened to 
the millions of Americans who are on the unemployment lines? What about 
the millions of Americans who have lost any hope?
  It seems to me, as I have said on many other occasions, that we have 
an administration that looks at the state of our economy from the 
position of Wall Street but not Main Street. The reason I say that is 
because I look at the remarks of the President of the United States 
that he made today. I will include the relevant parts of the speech. I 
am now quoting.

       At home, obviously, the economy and jobs are on my mind. I 
     know they're on yours, as well. I am pleased that the economy 
     is growing. . . . My view of Government is to create an 
     environment that is good for the entrepreneur. . . . And that 
     we ought to keep on with the tax cuts.

  That is his recommendation in terms of his statement that he made at 
the National Governors Association.
  The rhetoric fails to match the realities of most Americans' lives. I 
know the President and his economic advisers have been touring the 
country claiming that the tax cuts for the wealthy have led to an 
economic recovery. A closer look at the States they have been visiting 
makes it clear this President and this White House are out of touch 
with the real needs and everyday concerns of average American families.

  The President told small businesses in Tampa, FL, last week that tax 
relief was a vital part of the economic recovery and failed to mention 
52,000 jobs have been lost in Tampa, FL, since he took office and that 
the jobs being created in the State pay 15 percent less than the jobs 
that have been lost. He did not mention Tropical Sportswear, an apparel 
maker in Tampa which shipped more than half of its cutting room jobs 
overseas.
  And in a minute I will talk about the new Time magazine just out on 
the market and its cover story about too many jobs going abroad. I fail 
to see much in the President's comments to the Governors and to the 
American people showing the sensitivity that families are feeling all 
across this country about outsourcing.
  Two weeks ago the President touted his economic policies in 
Harrisburg, PA, where 14,000 jobs have been lost since January 2001. 
The jobs being created in Pennsylvania pay 23 percent less than the 
jobs that were lost. In the same week, the President told businesses in 
Springfield, MO, the growth is good and jobs are being created. Yet 
5,300 jobs have been lost in Springfield, MO, since President Bush took 
office, and the jobs being created in Missouri pay 25 percent less than 
the jobs that have been lost.
  Every day it is becoming more and more clear the current Bush 
economic policy is in disarray. Last week, President Bush and his 
economic team backed away from the promise to create an average of 2.6 
million new jobs this year. The President made the promise in his 
economic report just the week before last and now no one in the White 
House or the Cabinet will endorse the 2.6 million number. It is just 
broken promise after broken promise.
  President Bush promised his first tax bill would create 800,000 
additional jobs by the end of 2002, but we lost 1.9 million jobs 
instead. His 2002 economic report promised 3 million more jobs in 2003; 
instead, more than 300,000 were lost. His economic report last year 
projected 1.7 million new jobs for 2003, and we suffered a loss of 
400,000 jobs. He promised the latest round of tax breaks would create 
510,000 additional jobs by the end of 2003, but we lost 53,000 jobs 
last year. President Bush says it is a good idea to send jobs overseas, 
as if we had not lost enough jobs already.
  This chart is a pretty clear indication about what has been happening 
to the American economy in terms of jobs and the impact the economic 
policies of this administration are having regarding employment. This 
shows 5.2 million jobs short of the administration promises for 2002. 
In 2002, we are 2.5 million jobs short of the promises of 2003. The 
reality is nearly 2 million jobs have been lost in the first 2 years 
under President Bush.
  The administration talks about how the economy is growing and how 
well the economy is doing. In his speech to the National Governors 
Association today, we can see words that are similar to what the 
President used in the State of the Union Address. In the State of the 
Union Address the President talks about the pace of economic growth in 
the third quarter being the fastest in nearly 20 years. Productivity is 
high and jobs are on the rise. He continued along in that speech, 
talking about his support for the elimination of overtime in an effort 
to help small business. That is the regulation the administration 
referred to as ``the needless Federal regulation,'' a regulation that 
has been in effect since we adopted the 40-hour week that provides 
overtime protections for millions of Americans. This administration is 
committed to overturning that regulation. That would affect 8 million 
Americans who work more than 40 hours a week.
  This is the projection of this administration in terms of the jobs 
created and the actual record of the administration over recent years. 
Whether it is a speech to the National Governors Association or the 
State of the Union, when we hear from the President the state of the 
economy is getting stronger and stronger, it is important to understand 
what the facts are.
  We can ask ourselves whether this is the responsibility of workers in 
this country. This chart shows Americans work more hours than workers 
in other industrialized nations. This chart, from the Organization for 
Economic Development and Cooperation, shows Americans work 100 hours 
each year more

[[Page S1439]]

than any other industrial nation and considerably more than most of the 
other European nations. A few hundred hours more than France, Italy, 
and Germany. American workers are working longer. They are working 
harder just to try to stay in place.
  If we look at the job market in terms of women in our society, what 
is happening to middle-income mothers who work 55 percent more hours 
today than 20 years ago? In 1979, it was 895 hours annually. Look at 
this figure: 1,388 hours now, almost double the amount in 2000.
  So American workers are working longer and harder than any other 
industrial society. Not only that, we have also seen that the families 
are working longer and harder. Both men and women, husbands and wives 
are working longer and harder than any other country in the world. So 
families are working almost longer and harder, and the jobs gained do 
not pay as much as jobs lost.
  The administration talks about the creation of new jobs, they talk 
about the unemployment figures, but it is important to understand what 
those jobs are and what they are in terms of pay. In 48 of the 50 
States, the new jobs are paying less than the old jobs. There are only 
two States where they pay more. They average 23 percent less. Workers 
are working longer and harder. The jobs are paying less.
  We will look at what is happening to the national average wage. For 
workers in 2001, the average wage was $44,000. The average wage now is 
$35,410, a 21-percent reduction in the average wage for workers today.
  We read the statement of the President today talking about the state 
of our economy, that everything is good and getting better, and when we 
read the State of the Union talking about how positive all the economy 
is, we ought to be able to look at what is happening out there on Main 
Street. Workers are working longer and harder. Both men and women are 
working longer and harder, and their total income is going down. That 
is what is happening on Main Street across this country.
  This chart demonstrates these points. In 48 States the Bush 
``recovery'' has replaced high-paying jobs with low-paying jobs, with 
the exception of Nebraska and Nevada. That is a national phenomenon in 
States across this country, and the outsourcing issue is one of the 
principal contributors. That is why there is national attention given 
in this magazine today talking about the challenges we are facing with 
outsourcing.
  I will read a couple parts of the article about outsourcing, and I 
will include the relevant paragraphs so they will be in complete 
context.

       That's why outsourcing to India has exploded during the 
     recovery.

  I will come back to the ``recovery'' in just a minute.

       That is why outsourcing to India has exploded during the 
     recovery. It jumped 60% in 2003--

  That is 60 percent in 2003--

     compared with the year before, according to the research 
     magazine Dataquest, as corporations used some of their 
     profits (not to mention [their] tax breaks)--

  Not to mention their tax breaks--do you want to know where a great 
chunk of those tax breaks are going? It has been used to organize and 
shift American jobs overseas. This is the conclusion in this magazine 
today. It goes on:
  That translates to 140,000 jobs outsourced to India last year. And 
what is the human aspect? Here is one of the individuals who has been 
affected. His name is:

       Vince Kosmac of Orlando, Fla., has lived both sad chapters 
     of outsourcing--the blue-collar and white-collar versions. He 
     was a trucker in the 1970s and '80s, delivering steel to 
     plants in Johnstown, Pa. When steel melted down to lower-cost 
     competitors in Brazil and China, he used the G.I. Bill to get 
     a degree in computer science. ``The conventional wisdom was 
     `Nobody can take your education away from you,' '' he said 
     bitterly. ``Guess what? They took my education away.'' For 
     nearly 20 years, he worked as a programmer and saved enough 
     for a comfortable life. But programming jobs went missing two 
     years ago, and he is impatient with anyone who suggests that 
     he ``retrain'' again.

  ``Retrain'' again--remember that picture with the President out there 
talking about new training programs that were tied into the community 
colleges? The principal problem with that is he said he was going to 
request I guess $250 million, but of course they cut over $600 million 
in the last 3 years out of the training programs.
  But this is what is happening here--the fact that this individual got 
the training and programming jobs went missing 2 years ago.

     . . . he is impatient with anyone who suggests that he 
     ``retrain'' again. ``Here I am, 47 years old. I've got a 
     house. I've got a child with cerebral palsy. I've got two 
     cars. What do I do--push the pause button on my life? I'm not 
     a statistic.''

  That is it. These families are not statistics. They are real people 
who are working hard, working longer, and making less. That is one of 
the prime concerns many of us have; that is, if we have a problem, the 
first thing we have to do is understand it. The first thing the 
President of the United States has to say is: We have a problem. Let's 
deal with it. If he just keeps on going as he did with the State of the 
Union and as he has today to the Governors, that everything is hunky-
dory, everything is getting better, that there is no problem, then you 
are failing to understand what is happening on the main streets across 
this country.
  This next item is from the Lou Dobbs show on CNN last Friday night. 
These are all publications from today, the speech made by the President 
today, the impact on the wages today. All of this has been in the last 
few days. We are not going back a year or 2 years ago as to what is 
happening; we are talking about what is happening across this country 
today and what the President of the United States said today and how 
out of touch he is on these issues.
  This is from last Friday night. I think these two comments said it 
all on the Lou Dobbs show last Friday night. This is Glenn of Oxford, 
MI:

       If General Motors, Ford and DaimlerChrysler can take 
     supplier parts and send them to China to be mass produced at 
     a third of the cost, then why doesn't the cost of the vehicle 
     ever go down? Labor is cheaper, parts are cheaper, but CEO 
     pay increases.

  There it is. That is what is happening. That is the real economy. 
That is what is happening. When you are talking about outsourcing, you 
are not only talking about families who have worked hard, played by the 
rules, and are being outsourced; a decision is being made over which 
they have no control. But you would think at the end of the day, if the 
parts are cheaper, if everything is cheaper, then at least the vehicle 
or some other part would be cheaper; but, no, the same cost, but the 
profits go to the CEOs.

  That was Glenn of Oxford, MI, last Friday night on the CNN show.
  Here is Walter, of Gary, IL:

       When did the American dream become buying goods and 
     services as cheap as possible?

  That is a pretty good question: ``When did the American dream become 
buying goods and services as cheap as possible?''

       It used to be to have a good job, buy an affordable home, 
     raise our children and hope that our children will be able to 
     do the same if not better in the future.

  That is the definition of the American dream. That is the dream that 
is being trampled on every single day, and we need to have national 
leadership that understands what is happening out across this country.
  It is stunning to me--absolutely stunning to me--that we cannot have 
a recognition about what is happening in terms of the current 
situation. These are the facts.
  In the Bush economy, corporate profits ballooned compared to workers' 
wages. On this chart is shown the change in the share of corporate-
sector income, profits, and workers' wages, which is in the dark tan. 
And what is shown on the chart is for the early 1990s recovery--the 
early 1990s recovery--compared to today's recovery that this President 
is talking about. He talked about it today. He talked about it in the 
State of the Union. He said everything is hunky-dory. Yet we have 
spelled out what is happening to real working families. This chart 
tells the story. And they must have this chart down at the Council of 
Economic Advisers. They must have this chart down in the White House. 
Someone ought to put this one on the desk of the President. Here it is.
  In the early 1990s, the share of the recovery was 60.29 percent for 
workers' wages, and for corporate profits it was 39 percent.

[[Page S1440]]

  What about today? Well, here it is. Eighty-six percent of today's 
``recovery'' goes to corporate profits and 13 percent is going to the 
wages of workers.
  This tells it all as to what is happening in terms of the American 
economy. The workers are getting short shrift across this country. You 
can take all of the statistics, and the President can make all the 
speeches--as he did in the State of the Union and as he did today--but 
it is not telling the full story. This tells the full story. This tells 
what is happening to workers in this country. It is told in the lost 
hopes and dreams of workers who have seen their jobs go overseas, but 
it is also told in these other facts.
  I will just show you this chart about the Bush economy creating low-
paying jobs. Let's take the late 1990s--1998 to 2000--the fourth 
quarter. This is the quarter of the growth period out of the recession. 
And here are comparable periods of time out of the recession between 
the 1990s and the year 2000 and the current recovery and what has 
happened with low-paying wages.
  This is what we were talking about before, the loss of income, jobs 
being lost and the new jobs paying less and less and less, both men and 
women working harder, working longer, corporate profits booming, 
workers working harder and making a good deal less, with the average 
income for those working families going down.
  Here is a chart that shows the recovery is the worst for workers 
since the Great Depression. This is the comparison for the month the 
recession ended about what happened to workers' salaries. In 1961, when 
we had a period of economic growth and price stability, the longest 
period of economic growth and price stability with the exception of 
President Clinton, until the time of the ballooning of the spending in 
the Vietnam war. But the wages went up 10.7 percent. In the 1970s, it 
came in at 12 percent; in 1975, 9 percent; November of 1982, 11 
percent; March of 1991, 3.6 percent--not very much. This is the period 
of time President Clinton turned this country around, creating 21 
million jobs. And then the first increase was 3.6 percent. Now it is 
four-tenths of 1 percent.
  How many more indicators do we need?
  The fact is, we are facing a serious economic crisis in workplaces 
across the Nation. This administration appears not to understand it. In 
a statement of the President to the National Governors Association, he 
talked again about how well the economy is doing, how pleased he is 
with the progress we are making.
  That is not what is happening on Main Street, USA. All across this 
Nation, in 48 out of the 50 States, too many jobs are going abroad. We 
hear about it in our States and all across the Nation. Everyone appears 
to know about it except the administration. Their only answer to any of 
our problems is providing additional tax breaks for wealthy 
individuals.
  Mr. REID. Will the Senator yield for a question?
  Mr. KENNEDY. Yes.
  Mr. REID. Madam President, is the Senator from Massachusetts aware of 
what happened last week regarding one of the President's chief economic 
advisors, N. Gregory Mankiw, Chairman of the President's Council of 
Economic Advisors? Recognizing that the country has lost 2.8 million 
manufacturing jobs during the time he has been President, is the 
Senator aware that this man recommends that in an effort to bolster 
manufacturing jobs, he wants to have people who work at McDonald's 
reclassified as manufacturers? Is the Senator aware of that?
  I will read exactly what the man said, in case the Senator missed 
that. The plan is to simply reclassify existing jobs in the fast food 
industry and declare they are now manufacturing jobs. He said:

       When a fast-food restaurant sells a hamburger, for example, 
     is it providing a ``service'' or is it combining inputs to 
     ``manufacture'' a product?

  Is the Senator aware of this statement which I would consider 
ridiculous?
  Mr. KENNEDY. I am. We want to reference it because it is so 
startling. It is in chapter 2, page 73--what is manufacturing. The 
Senator has read it correctly. It is startling to me. We just read the 
papers in the last few days, if we look at what the Secretary of Health 
and Human Services has to do now in terms of correcting a record with 
regard to the disparities on health care because people over in the 
Department were cooking the books to give it more favorable statements 
and comments and facts with regard to the problems we are facing with 
minorities.
  Then, of course, in the last day or so we read the comments of our 
friend and colleague Senator Levin where he said the CIA had not been 
frank and candid and honest with him in terms of providing information 
about what sites had actually been given to the inspectors and whether 
they had been given the most accurate sites in terms of the weapons of 
mass destruction. There was representation that they had, and we find 
out in the newspapers that they had not.
  Then we are troubled today by the statement of the Secretary of 
Education--who is my friend, although I differ with him--when he said 
the NEA organization that represents the teachers is a terrorist 
organization. I was absolutely baffled by that comment. I will read the 
AP wire:

       Education Secretary Rod Paige called the nation's largest 
     teachers union a ``terrorist organization'' during a private 
     White House meeting with governors on Monday. Democratic and 
     Republican governors confirmed the education secretary's 
     remarks about the [NEA]. ``Those were the words, `the NEA is 
     a terrorist organization,' '' said Democratic Gov. Jim Doyle 
     of Wisconsin. Several Democratic governors called the remarks 
     inappropriate.

  I ask unanimous consent to print the AP wire in its entirety in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      [From the Associated Press]

  Paige Tells Governors Education Union Is ``Terrorist Organization''

                           (By Robert Tanner)

       WASHINGTON.--Education Secretary Rod Paige called the 
     nation's largest teachers union a ``terrorist organization'' 
     during a private White House meeting with governors on 
     Monday.
       Democratic and Republican governors confirmed the 
     education's secretary's remarks about the National Education 
     Association.
       ``These were the words, `The NEA is a terrorist 
     organization,' '' said Democratic Gov. Jim Doyle of 
     Wisconsin.
       Several Democratic governors called the remarks 
     inappropriate.
       ``He was making a joke, probably not a very good one,'' 
     said Gov. Ed Rendell of Pennsylvania. ``Of course he 
     immediately divorced the NEA from ordinary teachers, who he 
     said he supports.''
       ``I don't think the NEA is a terrorist organization,'' said 
     Rendell, who has butted heads with the group as well. 
     ``They're not a terrorist organization any more than the 
     National Business Organization is a terrorist organization.
       Neither the Education Department nor NEA had an immediate 
     comment on Paige's comments. Both indicated the statements 
     were forthcoming.

  Mr. REID. Will the Senator yield for another question?
  Mr. KENNEDY. Yes.
  Mr. REID. I am stunned by the statement of Secretary Paige. I have 
the greatest respect for Governor Doyle. I know if he said he said it, 
he said it. But with regard to the NEA, for example, someone I went to 
high school with spent much of his adult life working for the NEA, 
organizing all over the West. That is a terrible thing to say about my 
friend Rinaldo Martinez, that he is part of a terrorist organization. 
That is stunning.
  Back to the loss of 2.8 million manufacturing jobs.
  Mr. KENNEDY. If I may make a quick comment, since we are on that 
subject, on the statement by the Secretary, whether it was said 
seriously or in jest, this illustrates in crystal-clear terms the 
misplaced values of the administration when they roll out the red 
carpet for the big drug companies, the HMOs, the insurance companies in 
recent Medicare legislation, and then slap our Nation's teachers in the 
face with unacceptable language. I say they are wrong. I believe 
Secretary Paige owes the Nation's teachers and the people an 
explanation and a full apology.
  Mr. REID. The President's people want to reclassify people who work 
at McDonald's, Burger King, and Wendy's as manufacturing so that the 
loss of manufacturing jobs appears less. But would the Senator comment 
on the fact that it seems it may be better for the President's folks to 
dwell on people who work in those places not having a

[[Page S1441]]

raise in the minimum wage for as long as they have? People are working 
two and three jobs to make ends meet just barely. We don't hear a word 
from the administration, not a single word on increasing the minimum 
wage for these people who work in these places that they want to 
reclassify as manufacturing jobs, where they now make $5.15 an hour. 
And we have been stymied procedurally from raising even an up-or-down 
vote on the minimum wage that will allow us to do that. Yet they want 
to reclassify people who work in those places as manufacturers. Is this 
the height of nonsense?
  Mr. KENNEDY. The Senator is absolutely correct. Here we have the 
administration effectively misleading the country in terms of where we 
are going in terms of the economy and the numbers of jobs and the types 
of jobs. But at the same time, as the Senator correctly points out, we 
have not seen an increase in the minimum wage for 7 years. The 
purchasing power of the minimum wage now is close to the lowest it has 
ever been.
  We know there is a majority in the Senate that is for an increase in 
the minimum wage, but we are being blocked in this body and in the 
House of Representatives by the fact that the President and this 
administration are opposed to an increase in the minimum wage, as they 
are opposed to an extension of unemployment compensation so that we 
have some 90,000 workers a week, men and women who have contributed 
into the unemployment compensation fund that is in a surplus of $17 
billion, and we find that the administration has opposed the request of 
our friend and colleague from Washington, Senator Cantwell, who along 
with others, has a dozen times requested that we take up a temporary 
extension of the unemployment compensation for workers.
  Not only that, as the Senator well knows, we have an administration 
that is opposed to overtime for 8 million workers in this country, of 
whom many are policemen, firefighters, and nurses, who are the backbone 
of our homeland security.
  People say, what could you do right away? They ask Senator Kerry, 
what can you do now? Well, you could do something today if you had 
different leadership that would make a significant and important impact 
on the lives of 7 million Americans with regard to the minimum wage, 
hundreds of thousand of workers regarding unemployment, and 8 million 
Americans with regard to overtime. That is what you can do today with 
different leadership, let alone what you could do if you had a 
President who was prepared to help eliminate the tax loopholes that 
send our jobs overseas; or they can try to bring in American companies 
and try to work with them to find ways of stabilizing this whole issue 
about the export of jobs and find ways of keeping them. There are many 
ways this can be done, but you will not get it done when you have a 
President who at noontime today said to the Governors: Everything is 
fine, the economy is growing, don't worry, we are just doing fine; 
everything is going along in a very positive way.
  I am troubled the message is not getting through.
  Mr. REID. We have heard a lot about the loss of manufacturing jobs in 
our country.
  There are traditionally very good jobs, the kind that can really 
support a family--decent hourly wages, good health care coverage, and 
paid vacations. They provide an honest day's pay for an honest day's 
work because these jobs aren't easy.
  It takes concentration, skill and stamina to stand on an assembly 
line making automobiles, or aircraft, or televisions, or dungarees. And 
most important of all, it requires pride in a job well done.
  When I grew up, you saw the ``made in the USA label'' on almost 
everything you bought. It was an assurance that a product was of the 
highest quality because it had been manufactured by American workers.
  Today it's hard to find that label on many products because fewer and 
fewer things are being ``made in the USA.''
  Over the last 42 months, our Nation has lost manufacturing jobs every 
single month--a total of 2.8 million jobs.
  These are the statistics, and behind these statistics are 2.8 million 
grim stories.
  Every time a job is lost, a family's world is torn apart.
  A worker loses the self-esteem of supporting a family, and also loses 
the sense of pride in a job well done. The family will probably lose 
their health coverage. Maybe they'll have to give up their dream of 
owning a home, or their children will have to forget about attending 
college.
  This is why the loss of manufacturing jobs is such a crisis in our 
country.
  For months now, we have wondered whether the administration has a 
plan to revive our manufacturing sector, and help create new 
manufacturing jobs.
  Mr. President, I believe in giving credit where credit is due. It now 
appears that the administration might in fact have a plan to create 
manufacturing jobs.
  Unfortunately, that plan is simply to reclassify existing jobs in the 
fast food industry and declare that they are now ``manufacturing'' 
jobs!
  This idea was suggested in the Economic Report of the President which 
was sent to Congress last week, and by N. Gregory Mankiw, the chairman 
of the President's Council of Economic Advisers.
  To reiterate, in a speech to economists, Mr. Mankiw said that 
reclassifying fast food jobs as manufacturing was ``an important 
consideration'' in setting economic policy. And the White House drew a 
box around this part of the Economic Report:

       When a fast-food restaurant sells a hamburger, for example, 
     is it providing a ``service'' or is it combining inputs to 
     ``manufacture'' a product?
       Sometimes, seemingly subtle differences can determine 
     whether an industry is classified as manufacturing. For 
     example, mixing water and concentrate to produce soft drinks 
     is classified as manufacturing. However, if that activity is 
     performed at a snack bar, it is considered a service.

  According to an article in last Friday's New York Times, some 
economists in the administration want to count flipping hamburgers as 
manufacturing so they can claim more jobs in that sector of the 
economy.
  Mr. President, if this idea wasn't such a cruel mockery of American 
workers and their families, it would be funny.
  I have nothing against people who work in the food service industry. 
Here in the Senate I have fought to protect these workers. I have tried 
to get a vote on increasing the minimum wage. And I have fought to 
protect overtime pay.
  But it is a fact that very few food service jobs can compete with 
good manufacturing jobs in terms of supporting a family.
  I suppose the food service workers could organize themselves into 
unions, as many factory workers have done. Maybe they could call 
themselves the Amalgamated Hamburger Assembly Workers or the 
Brotherhood of French Fry Baggers.
  They could call themselves that, but they would still be food service 
workers, not factory workers. And their jobs would still be service 
jobs, not manufacturing jobs.
  You can change all the terminology you want, but you can't change the 
fact that our country desperately needs a real plan to boost our 
manufacturing sector.
  We need to look at tax credits for businesses to create manufacturing 
jobs; we need to cut health care costs; and we need to enforce our 
trade agreements so they will be fair to American workers.
  We need a plan that recognizes what the loss of manufacturing jobs 
has meant to almost three million American families.
  This is a serious problem. But this suggestion by the administration 
can't be taken seriously.
  Mr. KENNEDY. Madam President, this is an insult to Lucille Rocket of 
Durfee High School in Fall River. She works hard to bring smaller 
learning communities to school to help kids learn. She mentors 
teachers. She is an enormously constructive and positive person in the 
high school system as a member of the NEA in my State.
  Cathy Moriarty teaches at-risk second grade children in Springfield's 
gymnasium because they don't have enough classrooms. She believes the 
No Child Left Behind Act doesn't fund the needed support for smaller 
class size and better trained teachers. She is a member of an 
organization that speaks

[[Page S1442]]

to that issue. She is proud of it. I am proud of her.
  Amanda Pellerin-Duck, who is in Springfield's Commerce High School, 
brought new curriculum on global issues to school. She cares about the 
quality of education and she has spoken out about the importance of 
making sure we are going to get it right with the No Child Left Behind.
  Ellen Peterson is a first grade teacher who helped new teachers on 
her own time. These teachers give of themselves every day. They are 
devoted to the children and they care deeply about the quality of 
education, and they are members of an organization that was insulted.
  Cindy Douglas teaches kindergarten in Franklin with limited supplies 
and does an extraordinary job. She believes this administration and 
this Nation should put funding of education at a higher priority.
  Those are real people who are members of this organization. We have 
not always agreed, the NEA and myself, on education issues. But I 
admire their work in my own State, and I admire the work they have done 
historically on education. I have been a member of that committee for 
42 years. It is absolutely startling, Madam President. Probably for the 
time I have been on the committee, for 20 years, we never voted on any 
issue. Everything was bipartisan--all the education issues. We had it 
under a Republican, Senator Stafford, who is still alive, a wonderful 
elderly Senator from Vermont, and Senator Pell, a dear and valued 
friend of mine and my family, who is from Rhode Island. We never voted 
on education issues. They were bipartisan for 20-odd years. Most of 
us--at least I did--thought we had a bipartisan effort with this 
administration on the No Child Left Behind. We had extraordinary 
overwhelming support in this body and in the House of Representatives 
trying to get this job done. We were going to have reform, but with 
that, we have to have investment. We got the reform, but not the 
investment. We have left children, I believe, hanging high and dry.
  It is not just the Senator from Massachusetts saying it. It is also 
education leadership in the State of Utah, in Republican States alike 
that are talking about this. That is why, as we are trying to deal with 
an issue of such high importance and priority, we should be beyond and 
far away from the inappropriate use of terms in characterizing an 
organization that has worked so long and hard to improve the quality of 
education for the children in this country.
  This legislation, S. 2061, is not a serious attempt to address a 
significant problem being faced by physicians in some States. It is the 
product of a party caucus rather than the bipartisan deliberations of a 
Senate committee. It was designed to score political points, not to 
achieve the bipartisan consensus which is needed to enact major 
legislation.
  This bill contains most of the same arbitrary and unreasonable 
provisions which were decisively rejected by a bipartisan majority of 
the Senate last year. The only difference is that last year's bill took 
basic rights away from all patients, while this bill takes those rights 
away only from women and newborn babies who are the victims of 
negligent obstetric and gynecological care. That change does not make 
the legislation more acceptable. On the contrary, it adds a new element 
of unfairness.
  The proponents argue that they are somehow doing these women and 
their babies a favor by depriving them of the right to fair 
compensation when they are seriously injured. It is an Alice in 
Wonderland argument which they are making. Under their proposal, a 
woman whose gynecologist negligently failed to diagnose her cervical 
cancer until it had spread and become incurable would be denied the 
same legal rights as a man whose doctor negligently failed to diagnose 
his prostate cancer until it was too late. Is that fair? By what 
convoluted logic would that woman be better off? Both the woman and the 
man were condemned to suffer a painful and premature death as a result 
of their doctors' malpractice, but her compensation would be severely 
limited while his would not. She would be denied the right to introduce 
the same evidence of medical negligence which he could. She would be 
denied the same freedom to select the lawyer of her choice which he 
had. She would be denied the right to have her case tried under the 
same judicial rules which he could. That hardly sounds like equal 
protection of the law to me. Yet, that is what the advocates of this 
legislation are proposing.
  Of course, this bill does not only take rights away from women. It 
takes them away from newborn babies who sustain devastating prenatal or 
delivery injuries as well. These children face a lifetime with severe 
mental and physical impairments all because of an obstetrician's 
malpractice or a defective drug or medical device. This legislation 
would limit the compensation they can receive for lost quality of life 
to $250,000--$250,000 for an entire lifetime! What could be more 
unjust?
  This is not a better bill because it applies only to patients injured 
by obstetrical and gynecological malpractice. That just makes it even 
more arbitrary.
  We must reject the simplistic and ineffective responses proposed by 
those who contend that the only way to help doctors is to further hurt 
seriously injured patients. Unfortunately, as we saw in the Patients' 
Bill of Rights debate, the Bush administration and Congressional 
Republicans are again advocating a policy which will benefit neither 
doctors nor patients, only insurance companies. Caps on compensatory 
damages and other extreme ``tort reforms'' are not only unfair to the 
victims of malpractice, they do not result in a reduction of 
malpractice insurance premiums.
  While those across the aisle like to talk about doctors, the real 
beneficiaries will be insurance companies and large health care 
corporations. This legislation would enrich them at the expense of the 
most seriously injured patients; women and children whose entire lives 
have been devastated by medical neglect and corporate abuse.

  This proposal would shield HMOs that refuse to provide needed care, 
drug companies whose medicine has toxic side effects, and manufacturers 
of defective medical devices. This legislation is attempting to use the 
sympathetic family doctor as a Trojan horse concealing an enormous 
array of special legal privileges for every corporation which makes a 
health care product, provides a health care service, or insures the 
payment of a medical bill. Every provision of this bill is carefully 
designed to take existing rights away from those who have been harmed 
by medical neglect and corporate greed.
  It would drastically limit the financial responsibility of the entire 
health care industry to compensate injured patients for the harm they 
have suffered. When will the Republican party start worrying about 
injured patients and stop trying to shield big business from the 
consequences of its wrongdoing?
  This legislation would deprive seriously injured patients of the 
right to recover fair compensation for their injuries by placing 
arbitrary caps on compensation for non-economic loss in all obstetrical 
and gynecological cases. These caps only serve to hurt those patients 
who have suffered the most severe, life-altering injuries and who have 
proven their cases in court.
  They are the children who suffered serious brain injuries at birth 
and will never be able to lead normal lives. They are the women who 
lost organs, reproductive capacity, and in some cases even years of 
life. These are life-altering conditions. It would be terribly wrong to 
take their rights away. The Bush administration talks about deterring 
frivolous cases, but caps by their nature apply only to the most 
serious cases which have been proven in court. These badly injured 
patients are the last ones we should be depriving of fair compensation.
  In addition to imposing caps, this legislation would place other 
major restrictions on seriously injured patients seeking to recover 
fair compensation. At every stage of the judicial process, it would 
change long-established judicial rules to disadvantage patients and 
shield defendants from the consequences of their actions.
  If we were to arbitrarily restrict the rights of seriously injured 
patients as the sponsors of this legislation propose, what benefits 
would result? Certainly less accountability for health care providers 
will never improve the quality of health care. It will not even result 
in less costly care. The cost of medical malpractice premiums 
constitutes less

[[Page S1443]]

than two-thirds of 1 percent--0.66 percent--of the Nation's health care 
expenditures each year. Malpractice premiums are not the cause of the 
high rate of medical inflation.
  Over the last 15 years, medical costs increased by 113 percent. The 
total amount spent on medical malpractice insurance rose just 52 
percent over that period, less than half the rate of inflation for 
health care services.
  Data from the National Practitioners Data Bank shows the number of 
payouts by Ob/Gyns in medical malpractice cases is not increasing. It 
has been relatively stable over the last twelve years. In fact, there 
were 13 percent fewer payouts in 2002 than in 1991. Similarly, the 
total amount paid to settle malpractice claims against Ob/Gyns has 
remained flat over the past twelve years when adjusted for medical 
inflation. The evidence shows that contrary to the claims of those 
promoting this legislation, malpractice payouts are not causing the 
cost of health care to rise.

  The White House and other supporters of caps have argued that 
restricting an injured patient's right to recover fair compensation 
will reduce malpractice premiums. But, there is scant evidence to 
support their claim. In fact, there is substantial evidence to refute 
it. In the past few years, there have been dramatic increases in the 
cost of medical malpractice insurance in States that already have 
damage caps and other restrictive tort reforms on the statute books, as 
well as in states that do not.
  Caps are not only unfair to patients, they are also an ineffective 
way to control medical malpractice premiums. Comprehensive national 
studies show that medical malpractice premiums are not significantly 
lower on average in States that have enacted damage caps and other 
restrictions on patient rights than in States without these 
restrictions. Insurance companies are merely pocketing the dollars 
which patients no longer receive when ``tort reform'' is enacted.
  If a Federal cap on non-economic compensatory damages were to pass, 
it would sacrifice fair compensation for injured patients in a vain 
attempt to reduce medical malpractice premiums. Doctors will not get 
the relief they are seeking. Only the insurance companies, which 
created the recent market instability, will benefit.
  Doctors, especially those in high risk specialties, whose malpractice 
premiums have increased dramatically over the past few years do deserve 
premium relief. That relief will only come as the result of tougher 
regulation of the insurance industry. When insurance companies lose 
money on their investments, they should not be able to recover those 
losses from the doctors they insure. Unfortunately, that is what is 
happening now.
  Doctors and patients are both victims of the insurance industry. 
Excess profits from the boom years should be used to keep premiums 
stable when investment earnings drop. However, the insurance industry 
will never do that voluntarily. Only by recognizing the real problem 
can we begin to structure an effective solution that will bring an end 
to unreasonably high medical malpractice premiums.
  Finally, I understand we will be voting on cloture tomorrow. We just 
had this legislation offered. We are here on a Monday. We are prepared 
for action and discussion, but we are being required to vote tomorrow. 
I intend to vote no on the cloture motion. This is an important issue 
affecting the quality of health and fairness and justice for millions 
of women and babies. It does not deserve to be rushed through the 
Senate.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DORGAN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Outsourcing Jobs

  Mr. DORGAN. Madam President, last week the Senate was not in session 
and most of us in the Senate were in our home States. I spent most of 
the week in North Dakota visiting with people about the economy, jobs, 
health care, and a wide range of issues. I had meetings on the issue of 
No Child Left Behind, on the significant problem in rural States with 
methamphetamine and the scourge this deadly new drug poses to young 
people and to law enforcement. A lot of us were doing a lot of 
activities last week. I wish to talk about a couple of issues that 
happened since we left town.
  Last week, there was a lot of discussion about the Economic Report of 
the President that was sent to the Congress just prior to our leaving 
town.
  This week's BusinessWeek, March 1, 2004, says:

       Will Outsourcing Hurt America's Supremacy?

  That is similar to the front cover of BusinessWeek a year ago:

       Is your job next? A new round of globalization is sending 
     upscale jobs offshore. They include chip design, engineering, 
     basic research--even financial analysis. Can America lose 
     these jobs and still prosper?

  So BusinessWeek, in front covers, now and exactly 1 year ago from 
now, asks the same questions: Will outsourcing hurt America's 
supremacy?
  The issue of outsourcing of jobs has been raised in the President's 
Economic Report, and there has been a lot of discussion about it. I 
thought it would be helpful perhaps to read it because it gets back to 
the question of international trade and its impact on our economy.
  On page 25 of the Economic Report of the President, it says: 
Outsourcing of professional services is a prominent example of the new 
type of trade. The gains from trade that take place over the Internet 
or telephone lines are no different than the gains from trade in 
physical goods transported by ship or by plane. When a good or service 
is produced at a lower cost in another country, it makes sense to 
import it rather than to produce it domestically.
  Let me read that last sentence again. When a good or service is 
produced at a lower cost in another country, it makes sense to import 
it rather than produce it domestically.
  So that created a significant debate. This is a booklet, the Economic 
Report of the President, that is extolling the virtues of outsourcing 
of American jobs. It is safe to say, perhaps, that no economist who 
worked on this booklet has ever had their job outsourced. In fact, I 
know of no American economist who has lost his or her job because of 
outsourcing. I also know of no politician in this country who has lost 
his or her job because the job was outsourced to Sri Lanka, Bangladesh, 
China, or Indonesia.
  So it is easy then for politicians and economists to thumb their 
suspenders, smoke their cigars, ruminate, cogitate about these things, 
and come up with this goofy idea that somehow when a good or service is 
produced at a lower cost in another country, it makes sense to import 
it rather than produce it domestically.
  I will take this point just for a moment and see if I can dissect it 
by talking about bicycles. I know I have spoken about this before, but 
repetition is the hallmark of good policy, so let me do it again. When 
it can be produced less expensively overseas, the President's economic 
advisers and the President's report say do it. Well, Huffy bicycles are 
a good example. The company that made Huffy bicycles had 20 percent of 
the domestic market. People can buy these bicycles from Sears, Wal-
Mart, and Kmart. Most people know about Huffy bicycles. They used to be 
made in this country. They were made in Ohio by American workers. Those 
American workers made $11 an hour making bicycles.
  I did not know one of the workers but I am sure they were proud of 
their jobs and proud of their product. They made Huffy bicycles. In 
fact, on Huffy bicycles the decal on the front between the front fender 
and the handlebars was an American flag decal made by American workers. 
So Huffy bicycles moved to China. Why? Because it costs $11 to hire an 
American to work to make a Huffy bicycle and a Chinese worker can be 
hired for 33 cents an hour.
  Huffy left Ohio and went to China. The last job that was done by the 
workers in Ohio was to replace the little flag decal with a decal of 
the globe. They removed the flag and put a globe on the front of Huffy 
bicycles.
  The last bicycle that was boxed up and left the plant in Celina, OH, 
was at 10:15 in the morning when a red 20-inch

[[Page S1444]]

Huffy model was put in a box for shipment, and then Huffy changed its 
nationality. Huffy bikes are now Chinese.
  Now, bicycles do not speak, so there was no visible sign of this 
change of nationality when the Huffy showed up at Wal-Mart or Kmart or 
Sears. They are now for sale as a Chinese bicycle rather than an 
American bicycle.
  Question: Does anybody think that when Huffy decided to send its 
bicycle production to China, those bicycles ended up on the showroom 
floor of Wal-Mart or Kmart at a much lower price because instead of 
paying $11 an hour for workers constructing these bicycles, they were 
now paying 33 cents an hour?
  Instead of having safe workplaces, there are none of those OSHA 
problems in China. Instead of having a manufacturing plant where they 
cannot put chemicals in the water and put chemicals into the air, there 
are none of those restrictions in China. Instead of having child labor 
laws where 12-year-olds cannot be hired to work 14 hours a day, there 
are none of those restrictions in China.

  So is it less expensive to produce Huffy bicycles in China? Darn 
right it is. Does the consumer benefit from that? Do my colleagues 
think Huffy bicycles that showed up on the showroom floor of Kmart and 
Wal-Mart are less expensive bicycles after they cut manufacturing costs 
of workers from $11 an hour to 33 cents an hour? The answer is no, of 
course they aren't.
  This has nothing to do with advantaging consumers. It has to do with 
corporate profits. It has to do with laying off Americans and fattening 
profits.
  So going to page 25 of the Economic Report of the President, his 
economic advisers say: When a good or service is produced at lower cost 
in another country, it makes sense to import it rather than produce it 
domestically. The keyword here is cost. They know the cost of 
everything and the value of nothing, as the old saying goes.
  I will tell my colleagues where things can be produced at less cost: 
Mexico, Indonesia, Bangladesh, China. I can name a dozen countries. But 
is that the only criterion? Is that the judgment we are going to make 
in this country: If it costs less somewhere, then there is an advantage 
to producing it there and shipping it back here and there is some sort 
of inherent advantage to our consumers? It is simply not true.
  I do not understand whether it is being hard headed or soft headed to 
fail to understand the basic truths about international trade. I am not 
someone who believes we should build a fence around our country but I 
do believe there ought to be some fairness with respect to the rules of 
this globalization.
  I will describe for a moment something I did just before the break. I 
came to the Senate floor and I listed--which, incidentally, is on my 
Web site as well at http://Dorgan.Senate.gov for those who might be 
interested--the top 100 companies that basically moved jobs to Mexico 
after the North American Free Trade Agreement.
  Now these 100 companies--this is not conjecture from me--these are 
companies that certified to the Department of Labor that these jobs 
were no longer going to exist because of the North American Free Trade 
Agreement. Why did they certify it? Because they wanted to make 
eligible the workers who were being laid off for this transitional 
trade adjustment assistance. What a wonderful, remarkable term: 
Transitional trade adjustment assistance. That means, for somebody out 
there who is losing their job, they are going to be transitioned and 
they are going to get some assistance in the short term. Guess what. 
One loses their job, they get transitioned, we give them some money, 
and then go away, please.
  So in order to get that transitional assistance, one had to have a 
certification from their company. So here is a certification. Levi 
Strauss, 15,676 jobs, mostly moved to Mexico; they certified that. I am 
not accusing them of it. I am just saying they certified that to the 
Department of Labor. Levi's, now that is all American; right? Everybody 
wears Levi's, but Levi's are not American anymore. They are made 
elsewhere. Fruit of the Loom used to be in Texas. They certified 5,352 
jobs gone, T-shirts, shorts, underwear; Fruit of the Loom, not 
American, gone.
  Do my colleagues want to order some Mexican food? Well, they do not 
have to say: Give me a chalupa, give me an enchilada. What they can say 
is: Give me some Fig Newtons, because Fig Newtons left America and went 
to Mexico. They are gone. Do my colleagues think Fig Newtons are made 
at home? No, they are not. Fig Newtons are on this list, certified as 
leaving America. Why? Because they can make them less expensively 
elsewhere.
  How many Americans know that Fig Newtons now come from Mexico? So we 
lose our Fruit of the Loom, we lose our Levi's, we lose our Fig 
Newtons.
  I am mentioning some things that are not high tech. I should mention 
some high tech--Motorola telephones. Let me give an interesting 
statistic that most people would not believe.
  Do you know that after NAFTA, when we were told that what would be 
shipped to this country from Mexico would largely be the result of low-
skilled, low-wage labor, they said that is what this is going to be. We 
are accessing the Mexican marketplace for low-skilled, low-wage labor 
which will ship jobs into this country and it will not displace those 
in this manufacturing sector who have good jobs, making good money, 
because they have high-skilled, high-wage jobs. Wrong. The three 
largest categories of manufactured items coming into the United States 
from Mexico are automobiles, electronics, and automobile parts.
  Did you know in a recent year we imported more automobiles into the 
United States from the country of Mexico than we exported to all the 
rest of the world? I am going to say that again. The United States 
imported more automobiles from Mexico than we exported to all of the 
rest of the world. That describes to you what happened with NAFTA--a 
substantial flight of U.S. jobs, good manufacturing jobs, good-paying 
jobs to Mexico.
  It is all about wages. I understand that. So you go to page 25 and 
the issue here is not about values. It is not about the American 
economy. It is not about caring whether this world-class economy of 
ours retains a strong manufacturing base--which I think is essential to 
be a country with a strong world-class economy. It is not about that. 
It is about cost.
  When a good or service is produced at a lower cost in another country 
it makes sense to import it.
  So you say, ``So long to American jobs.'' There are no tears shed for 
that with these economists.
  Of course they sit there without worrying about their jobs because no 
economists I know have lost their jobs. No economists lost their jobs 
to NAFTA. No politician lost his or her job. Despite the fact that 
everybody was wrong.
  This describes what happened. This happens to be the 100 top 
companies that certify job loss: Only with respect to Mexico; only with 
respect to NAFTA.
  We were told. The best economists said: Pass this North American 
Free-Trade Agreement because if you do we will produce substantial new 
jobs. Guess what. We had a small trade surplus with Mexico. We passed 
NAFTA, the North American Free-Trade Agreement, and that small surplus 
turned into a giant deficit. Ross Perot called it a giant sucking 
sound, and those jobs have gone to Mexico wholesale.
  We had a modest deficit, a relatively modest deficit with Canada, 
which is the other country that is the participant in the North 
American Free-Trade Agreement, and that has become a very large 
deficit.
  In both cases with Mexico and Canada, all the experts were wrong and 
we have dramatically increased the Federal trade deficit with respect 
to both countries.
  Let me also say in the Economic Report of the President there has 
been a discussion in recent days about what is manufacturing, because 
they pose the question on page 73. They ask a question.
  The definition of a manufactured product, however, is not 
straightforward. When a fast food restaurant sells a hamburger, for 
example, is it providing a service? Or is it combining inputs to 
manufacture a product?
  I don't know exactly which economist might have written page 73, but 
when a fast food restaurant sells a hamburger, is it providing a 
service or is it combining inputs to manufacture a product? This rather 
serious economist poses one of the questions of our

[[Page S1445]]

era: Should a hamburger be considered part of our manufacturing base? 
Should the making of a hamburger be considered part of our 
manufacturing base?
  How about the person who hangs out the window and says, Do you want 
fries with that? Is that a key part of the manufacturing base? Where 
does this go?
  What would your mom, or my late mother, think if you came home and 
said what you had been doing and you told her you had been 
manufacturing chocolate pie? I don't think so.
  Sometimes in this town language becomes such a barrier to 
understanding. This is so fundamentally absurd on its face. Is making a 
hamburger part of America's manufacturing base? The answer is of course 
not. Of course not.
  We have lost a massive number of manufacturing jobs in this country 
in recent years. I suppose some of the same economists who have sold us 
on this economic strategy may want to make it appear as if we have lost 
fewer jobs by counting those who construct a hamburger--two all-beef 
patties, special sauce, lettuce, whatever it is--as part of our 
manufacturing sector. But of course on its face that is nuts and this 
ought not be part of any significant or serious discussion.
  There are a lot of questions being raised these days about jobs. Let 
me say I don't think, with all the discussion we have about social 
programs in the Congress, there is not a social program in this country 
that is as important as a good job that pays well. Because that is what 
helps provide the security for America's families.
  We are going through a time when we face the loss of a lot of jobs. 
We face the restructuring of an economy. We did have a recession, 
relatively short. We are now a year and a half past that recession and 
the fact is we are still not producing any significant number of new 
jobs. So the question for all of us is, Is this economic strategy a 
strategy that produces new growth without new jobs?
  Paul Craig Roberts, who was one of the top economists for the Reagan 
administration, recently wrote a piece suggesting that perhaps this is 
an economic recovery without new jobs. If that is the case, we have 
some serious problems ahead of us. He says maybe this new economy, this 
new growth, does create jobs but not in the United States; jobs in 
China, jobs elsewhere, just not jobs here. If that is the case, we face 
significant challenges.
  We are going to have an agenda in this Senate that will move very 
quickly between now and the first Tuesday of November, which is 
election day. I understand all that. We are going to be working on a 
lot of extraneous issues, some because one side or the other wants to 
have a political wedge issue someplace. We on our side don't schedule 
this place. The majority schedules it at this point so they will 
determine what is on the floor of the Senate.
  But for me, I believe there is not a more important issue that we 
need to deal with than the question, are we going to have an economic 
engine that creates jobs so the American families, as they talk about 
their lot in life, have a chance to visit about progress? How will 
American families answer the questions: Do I have a good job? Does it 
pay well? Do I have job security? Am I going to be outsourced?
  And then answering the other questions that come from the ability to 
have a decent job, Do we send our kids to schools we are proud of? Do 
Grandpa and Grandma have access to good health care? Do we live in a 
safe neighborhood? Do we keep this country safe from terrorist attacks?
  There are so many issues that confront us, but I think the issue of 
jobs is critically important and we spend far too little time working 
on it in the Senate.
  I want to say this: Those who think it is a good thing to send 
America's jobs overseas, those who think this is a new economic 
approach that is good for America, don't understand. Because they have 
not been in that place. They have never been a part of a family where 
they know about secondhand things, second jobs, second shifts, and 
second mortgages. They have never been a part of that. They think it is 
just fine to construct some economic theory, some model that says if we 
can produce Huffy bicycles less expensively in China, good for us, 
let's do it. Except the consumer doesn't benefit from that, it is just 
the American workers who lose their jobs.
  The questions these economists need to answer--and the politicians, 
incidentally, who support this, and there are plenty--is: Who will be 
the purchasers and consumers in an economy in which you diminish and 
then finally ship good jobs overseas? Who is going to purchase all of 
these things you are producing overseas?
  I have given a number of trade speeches. I come to the floor of the 
Senate and talk about this repeatedly and nobody seems to care very 
much. That is lamenting. I should not say it quite that way. It does 
not result in dramatic change in public policy.

  We can talk about the most recent trade agreement with China. We have 
roughly a $130 billion trade deficit with China right now. It has been 
growing leaps and bounds. Our negotiators negotiate an agreement with 
China and say on the bilateral trade with respect to automobiles: We 
will agree with this, China; you can ship any Chinese automobile you 
may wish to manufacture to the United States, and we will charge a 
tariff of only 2\1/2\ percent. And we agree any U.S. cars we try to 
ship to China are charged a tariff 10 times higher of 25 percent.
  Stupid? Sure. On its face it is a stupid provision. We say to China, 
which has a $130 billion trade surplus with us, by the way, we will 
make a deal. We want to have bilateral automobile trade, and we will 
let you charge a tariff 10 times higher than we will.
  I would love to find the negotiator who did that and see if we could 
not find a way to prevent them from ever having a public sector job 
once again. That makes no sense. Yet we see this time after time after 
time.
  As I speak today, every single pound of American beef that is sent to 
Japan has a 50-percent tariff on it. We have a huge trade deficit with 
Japan. Every pound of American beef sent to Japan has a 50-percent 
tariff. That is 15 years after our trade negotiators reached a beef 
agreement with Japan.
  This country needs to get a backbone and stand up for its economic 
interest. Yes, I am talking about ranchers. I am talking about 
manufacturers. I am talking about business owners who do business in 
this country and have to compete. We need a spine, backbone, some 
willingness to stand up for the economic interests of this country, not 
being protectionists but just saying there needs to be some basic 
rules.
  If, in fact, we are a global economy--and, indeed, we are--then the 
rules with respect to that global economy need to keep pace with 
globalization.
  We had people killed in the streets of this country in the last 
century. They gave their life fighting for some basic rights: The right 
to organize, basic rights for workers to organize. We had people fight 
on the issue of child labor to prohibit the sending of 12-year-old 
children down into the coal mines and into manufacturing plants. We 
waged fights over the issue of minimum wage and safe workplaces and the 
environmental laws that prohibit a plant from dumping its chemicals 
into the air and water.
  Now we are told forget all that because if you are a global company, 
you pole-vault over that and go someplace where you do not have to 
worry about environmental or labor rules. That is a nuisance. Child 
labor, minimum wage, the right to organize, that is a nuisance.
  This is what we have dealt with for 100 years in order to create a 
more perfect opportunity for business and labor. There is something 
fundamentally wrong.
  I hope we can have a discussion about jobs in the Senate. I intend to 
offer a series of amendments at the next opportunity dealing with the 
issue of jobs and dealing with the issue of trade. The President has 
just finished a Central American Free-Trade Agreement. I believe we 
ought to have that debate in the Senate. He has just completed the 
Australian Free-Trade Agreement. We ought to have that debate in the 
Senate. I intend to be in the Senate opposing both. I will describe why 
later. Neither, in my judgment, represents the best interests of this 
country. I want trade pacts to be mutually beneficial. That means they 
need to benefit this country, as well.
  What prompted me to speak were a couple things: One, this discussion

[[Page S1446]]

about outsourcing. The economists who wrote this--this is the 
President's book, actually signed by the President, but the fact is, I 
understand it is written by the President's economic advisers. He, in 
some ways, began to do a U-turn and lost the steering wheel and turned 
back again. My hope is the President certainly does not believe this 
nonsense. Outsourcing of good jobs in this country, outsourcing of 
manufacturing jobs, outsourcing of service jobs is not in this 
country's best interest. They say in the long run it will even out 
because the other countries will raise themselves up.

  John Maynard Keynes said in the long run, we are all dead. I am 
interested in the next year, the next 5 years, the next 20 years. I am 
relatively uninterested in the realignment of the economies 100 years 
from now.
  I want very much for this country to succeed. I want this country to 
remain a world economic power. It will not be a world economic power if 
it is deep in debt, up to its neck in fiscal policy deficits and up to 
its neck in trade deficits. We have fiscal policy deficits this year 
alone of about $660 billion. I know the numbers that are advertised are 
$530 billion, but that is if you take the Social Security revenue, 
which is a dishonest thing to do. So $660 billion in Federal budget 
deficits, and add to that the highest trade deficits in human history, 
very close to $480 billion, and it is appropriate to look at this 
country's fiscal policy and trade policy and ask: Where is the 
leadership? Where does the leadership come from to address these 
issues?
  My hope is that I and others who care a great deal about this can 
provide some of that leadership. We invite the President and people 
from both political parties to join us. This President needs to speak 
forcefully in response to this ``Economic Report of the President.'' He 
needs to say: This is not what I mean. The economists may have written 
it, but I don't believe outsourcing strengthens our country. I don't 
believe moving American jobs overseas strengthens the United States of 
America.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Cornyn). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ENSIGN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ENSIGN. Mr. President, I rise today to speak on the issue of 
medical liability reform and the bill pending before the Senate. This 
legislation is a narrowed-down version of what myself and Senator Gregg 
introduced last year, which in contrast was a broad-based medical 
liability reform bill. Today we pared it down to limit it just to OB/
GYNs, nurse midwives, and any other provider involved in the delivery 
of babies.
  The reason we have done this is fairly typified in my State and in 
many other States around the country by this picture. It is a real life 
picture taken only days ago: the building moniker reads ``OBGYN,'' and 
next to it, a sign now hangs that reads ``For Lease,'' and call a 
particular number. This sign indicates how OB/GYNs are leaving practice 
in my State and in other States across the country because they can no 
longer afford their medical liability premiums.
  This is a problem that some describe as not that big a deal. But if 
you talk to the women who cannot get obstetrical and gynecological 
services, it is a crisis to them.
  Southern Nevada is the fastest growing population center in the 
country. We have 6,000 new people moving in a month and are we not 
getting as many new OB/GYNs as we need. We need a lot of new doctors 
coming to our State. But instead of new doctors arriving to practice in 
Nevada, we have doctors limiting their practices and stopping either 
the practice of obstetrics or leaving our State altogether.
  The American Medical Association has identified 19 States that are in 
crisis, and all but 5 States are showing signs the crisis is building 
in their State.
  Some people have said: Well, this is about rich doctors versus rich 
lawyers. This is not about doctors versus lawyers. This is about access 
to care. This is about a woman who is thinking: ``I want to have the 
best possible care for my baby,'' and she cannot find a doctor.
  I have a good friend who lives in Las Vegas. He delivers high-risk 
pregnancies. These are the people you want to have as your best 
doctors. However, because of the huge increases in rates, his insurance 
company has limited him on the number of deliveries he can make during 
the year.
  That is not what we want to be doing. We want to have the best people 
delivering babies, especially for high-risk pregnancies which require 
the most skill.
  It is our legal system that is out of control. Unfortunately, we have 
trial lawyers out there who are taking advantage of our broken civil 
justice system. They are even advertising on TV. I am sure many people, 
when they watch TV, have seen these 1-800 numbers you can call to find 
somebody to sue. It is basically: Bring your Rolodex and we will figure 
out who you are going to sue. That goes for almost anything today, but 
it is especially prevalent in the field of medicine.
  Across America the crisis is happening not just with OB/GYNs. As a 
result, in this bill, we have decided to focus also on nurse-midwives, 
the overall practice of delivering babies, and providing gynecological 
care because it is the most acute problem we are seeing across the 
country.
  In my State, we did pass a medical liability reform bill in August of 
2002, but the only reason that it was able to pass was because our 
trauma center closed. It was the only level I trauma center for a 
region of 10,000 square miles, and it closed because of the medical 
liability crisis. The only way that trauma center was able to open 
again was because the State decided to step in and put its liability 
cap on anybody who provided care through the level I trauma center. 
People have been arguing that $250,000 is not enough. Well, the State 
of Nevada's cap on damages is $50,000 for anyone who chooses to sue a 
healthcare professional that provided care at the trauma center. That 
alone allowed the level I trauma center to open.
  This is the same level I trauma center where Roy Horn, the famous 
person from the duo of Siegfried and Roy, was treated when he was 
attacked by a tiger. If it was not for the State of Nevada applying its 
$50,000 damage cap, that trauma center would not have been available 
for Roy. He certainly would be in much worse shape today if that had 
not been the case, and maybe he would not have made it at all if that 
kind of care was not available. This example indicates the politics of 
what can happen when a crisis gets so great that the trial lawyers 
cannot stand up and keep their stranglehold on our legislatures around 
the country.
  Today, we need to have the same thing happen in the Senate where 
people around the country call their Senators and say the crisis is too 
severe. We need to have special interests, especially trial lawyers' 
special interests, put aside, and we need to put the practice of 
medicine first. We need to put first access to quality care for women 
and those new babies coming into the world. We need to put their 
care above all else.

  Last year, the University of Nevada School of Medicine had the lowest 
number of students entering obstetrics and gynecology it has had since 
1999. And, equally disturbing, each year since 2000, that number has 
continued to go down and down and down.
  This chart shows the very clear contrast of what has happened in my 
State and other States versus California. Why do I put California up 
versus the rest of the States in the country? The reason is because 
California enacted what is known as MICRA. MICRA is their medical 
liability reform law which they enacted in 1975. After withstanding 
eleven years of court challenges, it has now been in effect for about 
eighteen years and we know it is working.
  By the way, the people in lawsuits are getting plenty of compensation 
in California. But the difference in premium increases--California 
compared to the rest of the country--is stark. In California, from 1976 
to today, there has been a 167-percent increase. For the rest of the 
country, however, it is over 500 percent. Moreover, these percentages 
do not reflect the last couple of years. If the last couple years were

[[Page S1447]]

shown, this red line showing the 500 percent would almost be spiking 
because it is going up so rapidly.
  To put this in real dollar terms, so you can get a comparison between 
different States, here are some really good examples. This is 2002 
premium survey data for selected specialties. We are comparing the 
cities of Los Angeles--once again, California has the MICRA law it 
enacted--and Denver, which is in another State that has enacted very 
similar legislation. The laws in California and Colorado are the ones 
Senator Gregg and I based our legislation on. These two States have 
strong medical liability reform in their States. These other States 
shown on the chart do not. Let's see the difference. Let's go down on 
the lower portion of the chart because we are talking about OB/GYNs. 
Let's talk about the difference in the States. For Los Angeles, $54,000 
a year--still a lot of money, but $54,000. In Denver, it is around 
$31,000. In New York, it is $90,000. In Las Vegas, where I live, it was 
$108,000 in 2002, and you cannot get it for $108,000 anymore. 
Currently, it is closer to $140,000 or $170,000 in my State, and even 
higher. In Chicago, it is $102,000. In Miami, it is over $200,000 a 
year.
  Is there any doubt in anybody's mind these laws are working when you 
look at the comparisons? Like I said, this is data from 2002. If you 
had 2003 data, the numbers would be even more stark. Consequently, I 
think we need to call on our Senate colleagues to at least allow us to 
debate this bill.
  We are going to have what is called a cloture vote on the motion to 
proceed tomorrow. All that is is a parliamentary term here in the 
Senate as to whether we can proceed to the bill. The other side of the 
aisle is blocking us from even proceeding to the bill, blocking us from 
having a reasonable debate on whether we are going to allow women to 
have access to their OB/GYNs and to their nurse-midwife practitioners.
  I have talked to so many people in my State, including patients, 
doctors, nurses and other people throughout the healthcare system, 
healthcare industry, and they know it is a crisis. But I have also 
visited with people from around the country. My State is not the only 
one that is in this type of a crisis. We are seeing severe problems 
from Pennsylvania to Mississippi to West Virginia to Washington State 
to Oregon, and all across the country. State after State after State 
has a serious problem today. When debating whether to debate this 
bill--that is all we are doing today, debating whether to debate this 
bill--we need people to step up to do the right thing. We have a 
Presidential election coming up this year. I think the candidates need 
to explain where they are on this bill. Some of them are going to be 
out running for office and may not be able to vote on this, but they 
ought to at least take a position on this bill to let people know where 
they stand. Do they stand with the trial lawyers? Or do they stand with 
pregnant mothers and unborn babies who need to come into this world?
  I think it is clear where we should stand as a body. This body 
should, in no uncertain terms, stand with protecting the patients of 
America, with making sure when a woman needs care, whether it is 
obstetrics or gynecology, that the healthcare provider will be there. 
Too many of these providers are leaving practice today because of the 
high cost of liability premiums.

  I want to respond to a couple points the other side always brings up. 
They say the reason is not because of jury verdicts; rather, the reason 
for these premium differences is because of investments in the stock 
market the insurance companies made and then they went bad.
  The stock market went crazy last year. It went way back up. So if the 
insurance companies were investing in the stock market, they would be 
doing fine, and we would not see these types of increases. The 
insurance companies in California and Colorado were invested in the 
stock market, just as the insurance companies in New York and Nevada 
and Illinois and in Florida. Yet there is this difference.
  The only thing you can point to for the difference--and these are 
cities with similar population bases--is the reform laws that have been 
passed. They all invested in the same stock market. It was not the 
stock market that caused the premium increases. It was and is runaway 
jury awards. Our country, unfortunately, has become too litigious. It 
is not about personal responsibility anymore. Jury awards are just out 
of control.
  People say: Injured patients deserve their just compensation. Well, 
they get just compensation in Colorado and California. I don't think 
one could look at California and ask: Do they discriminate against 
women? That is one of the arguments you hear: Because women don't make 
as much money, that they are being discriminated against. Are we saying 
the whole State of California discriminates against women? It is a 
ludicrous argument.
  We have to have reasonable reform. That is what we have put forward 
today, reasonable reform, so that access to care is there. If access to 
care is not there, that is when discrimination against women will 
happen. The OB/GYNs, which is what this bill addresses, are the part of 
the medical profession that is in crisis the most. Of all of the 
various specialties, this is the one that is in the most severe crisis. 
Obviously, it affects women more than it affects men. So in effect, if 
we are not allowing women to have access to the OB/GYN care, not 
passing this bill will discriminate against women. People not voting 
for this will be discriminating against women. That is why we need to 
pass this legislation.
  If you are opposed to the final version of the bill, at least let us 
go to the bill, debate it, and amend it. But it seems the other side of 
the aisle, the Democrats in the Senate, don't want to have any part of 
this debate. The American people need to stand up to that. They need to 
stand up and make their voices heard, because this debate is too 
critical. We are having, and we will continue to have, babies not 
delivered with the kind of care they need. High-risk pregnancies need 
the absolute finest modern medicine can bring them. If those people are 
limiting their practices, and OB/GYNs are having to limit the number of 
deliveries they make, then those high-risk pregnancies will not have 
the kind of highly qualified medical care they need and deserve.
  I could go into a lot of other statistics. I could talk about various 
anecdotes of people I have met. I would rather just sum up with this: 
In a day and age where America has the finest health care system in the 
world, where we have the finest quality, the best doctors, the best 
research institutions, the best hospitals, and where people from all 
over the world who can afford it come to America because of the high 
quality of care, if we want to keep the highest quality of care, we 
must enact medical liability reform. This bill that is limited down to 
just affecting the practice of obstetrics and gynecology, we at least 
must start here. I want to go much further than this, but let's at 
least start here so American mothers who are having babies or American 
women who are seeking gynecological care can have access to that type 
of care.
  One last point has to do with the uninsured. I have heard in the 
Democratic debates talk about the 43 million uninsured. They want to do 
something about it. The main thing they could do to make healthcare 
insurance more affordable would be to enact reasonable medical 
liability reform. That is what we have before us today. So for those 
who are trying to make this a political issue, let's make it an issue 
that we actually do something about instead of just talking about it on 
the campaign trail.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. DOLE. Mr. President, I ask unanimous that the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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