[Congressional Record Volume 150, Number 24 (Monday, March 1, 2004)]
[Senate]
[Pages S1937-S1939]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               PROTECTION OF LAWFUL COMMERCE IN ARMS ACT

  Mr. WARNER. I rise to speak to an amendment to address the issue of 
tort reform. While today, the Senate is debating tort reform for the 
gun industry, I wish to take a few moments to raise the issue of tort 
reform with regard to another industry--the health care profession.
  My father dedicated his life's work to medicine as a surgeon 
gynecologist. As a youngster, I watched first-hand how he caringly 
watched over his patients. As a result of my father, I have always had 
a great deal of respect for the medical profession.
  For one reason or another, though, I did not follow in my father's 
footsteps. Rather than become a doctor, I became a lawyer.
  Upon graduation from law school, I served as a law clerk for Judge E. 
Barrett Prettyman of the United States Court of Appeals for the DC 
Circuit. Subsequently, I worked as a Federal prosecutor and then moved 
to private practice with a major law firm.
  I have direct experience with two professions--the medical profession 
and the legal profession. I admire both professions and believe the 
overwhelming majority of doctors and lawyers are dedicated people who 
work hard to serve their patients and clients.
  Soon, the Senate will vote on S. 1805, legislation that provides 
certain legal protections to the gun industry. Legal protections which 
are denied almost across the board to every other industry in the 
private sector, including the medical profession.
  Proponents have argued that this legislation is necessary because 
lawsuits are driving gun dealers and gun manufacturers out of business. 
Well, the same is happening to our doctors.
  Doctors, nurses, and other health professionals are leaving the 
practice of medicine due to the astronomical costs of malpractice 
insurance and due to the constant battle against frivolous lawsuits and 
runaway jury verdicts. In my view, if we are going to protect the gun 
industry from lawsuits, we at least ought to provide some measure of 
protection for doctors and nurses as well.
  We have all heard the real stories from doctors about the rapidly 
increasing cost of medical malpractice insurance. In some States, 
malpractice insurance premiums have increased as much as 75 percent in 
1 year. As a result, the fact is that those doctors, unable to afford 
ever-increasing premiums, are leaving the profession altogether and 
patients are losing access to quality health care.
  I have received numerous letters from medical professionals in the 
Commonwealth of Virginia that share with me the very real difficulties 
they are encountering with malpractice insurance and the consequences 
of this problem. Let me read part of one those letters that was sent to 
me by a doctor in Virginia. The doctor writes:

       I am writing you to elicit your support and advice for the 
     acute malpractice crisis going on in Virginia. . . . I am a 
     48-year-old single parent of a 14 and 17 year old. After all 
     the time and money spent training to practice Ob-Gyn, I find 
     myself on the verge of almost certain unemployment and 
     unemployability because of the malpractice crisis. I have 
     been employed by a small Ob-Gyn Group for the last 7 years. . 
     . . Our malpractice premiums were increased by 60% in May 
     2003. . . . The prediction from our malpractice carrier is 
     that our rates will probably double at our next renewal date 
     in May 2004. The reality is that we will not be able to keep 
     the practice open and cover the malpractice insurance along 
     with other expenses of practice.

  Out of respect for this doctor's privacy, I will not share the 
doctor's name, but I do keep her letter in my files. Unfortunately, 
though, this doctor's experience is not unique.
  Both Time Magazine and Newsweek have thoroughly detailed the crisis 
doctors are facing across America.
  In June of 2003, Time Magazine had a cover story on the affects of 
rising malpractice insurance rates. The story, entitled ``The Doctor is 
Out'' discusses several doctors, all across America, who have had to 
either stop practicing medicine or have had to take other action due to 
increased insurance premiums.
  One example cited in Time's article is the case of Dr. Mary-Emma 
Beres. Time reports:

       Dr Mary-Emma Beres, a family practitioner in Sparta, N.C., 
     has always loved delivering babies. But last year Beres, 35, 
     concluded that she couldn't afford the tripling of her 
     $17,000 malpractice premium and had to stop. With just one 
     obstetrician left in town for high risk cases, some women who 
     need C-sections now must take a 40-minute ambulance ride.

  Dr. Beres case makes clear that not only doctors are being affected 
by the medical malpractice insurance crisis, patients are as well. With 
increased frequency, due to rising malpractice rates, more and more 
patients are not able to find the medical specialists they need.
  Newsweek also recently had a cover story on the medical liability 
crisis. That cover story was entitled, ``Lawsuit Hell.'' I was 
particularly struck by the feature in this magazine about a doctor from 
Ohio who saw his malpractice premiums rise in one year from $12,000 to 
$57,000 a year. As a result, this doctor, and I quote from the article, 
``decided to lower his bill by cutting out higher-risk procedures like 
vasectomies, setting broken bones and delivering babies even though 
obstetrics was his favorite part of the practice. Now he glances 
wistfully at the cluster of baby photos still tacked to a wall in his 
office, `I miss that terribly,' he says.''
  While these stories are compelling on their own, the consequences of 
this malpractice crisis can even be more profound.
  On February 11, 2003, Ms. Leanne Dyess of Gulfport, MS, shared with 
both the HELP Committee and the Judiciary Committee her very personal 
story about how this crisis has affected her.
  Ms. Dyess told us how on July 5, 2002, her husband, Tony, was 
involved in a

[[Page S1938]]

single car accident. He was rushed to the hospital in Gulfport where he 
had head injuries and received medical attention. Tony could not be 
treated at the Gulfport hospital because they did not have the 
specialist necessary to take care of him. After a 6 hour wait, he was 
airlifted to the University Medical Center. Today, Tony is permanently 
brain damaged.
  According to Mrs. Dyess, no specialist was on staff that night in 
Gulfport because rising medical liability costs had forced almost all 
of the brain specialists in that community to abandon their practices. 
As a result, Tony had to wait 6 hours before the only specialist left 
in Gulfport could treat Tony to reduce the swelling in his brain.
  Without a doubt, the astronomical increases in medical malpractice 
insurance premiums are having wide-ranging effects. It is a national 
problem, and it is time for a national solution.
  The President has indicated that the medical liability system in 
America is largely responsible for the rising costs of malpractice 
insurance. The American Medical Association and the American College of 
Surgeons agree with him as does almost every doctor in Virginia who I 
have discussed the issue with.
  The President of the AMA, Dr. John Nelson, has publicly stated, ``We 
cannot afford the luxury of waiting until the liability crisis gets 
worse to take action. Too many patients will be hurt.''
  The American College of Surgeons concurs by stating, ``More and more 
Americans aren't getting the care they need when they need it. . . . 
The `disappearing doctor' phenomenon is getting progressively and 
rapidly worse. It is an increasingly serious threat to everyone's 
ability to get the care they need.''
  Let me state unequivocally that I agree with our President, with the 
AMA, with the American College of Surgeons, and with the vast majority 
of doctors all across Virginia. That is why I am offering my amendment 
today.
  My amendment is simple, like other measures that have come before the 
Senate, my amendment provides a nationwide cap on damages in medical 
malpractice lawsuits.
  My amendment differs from other measures that have been voted on in 
the Senate in one key aspect--whereas these other bills would have 
applied to doctors, nurses, insurance companies, drug companies, and 
others, my amendment is solely limited to the caring medical 
professionals who take care of each and every one of us when we need 
medical care.
  It is a common sense solution to a serious problem.
  Now that I have laid out the amendment, I would like to reiterate one 
important point. The gun immunity bill provides broad protection to gun 
manufacturers and gun dealers in both federal and state court. The bill 
is aimed at protecting the manufacturers and dealers from lawsuits that 
result from the criminal or unlawful use of a firearm. The basic idea 
is that if a manufacturer or dealer follows the statutory law in the 
manufacturing and sale of a legal product, they should not be held 
responsible for the actions of a third party.
  While some may claim that this gun immunity bill might be an 
important component of tort reform, in my opinion, health care 
liability reform is even more important. We must protect the medical 
profession and the patients it serves.
  How can we give near absolute protection from litigation for one 
industry, the gun industry, and do absolutely nothing for another 
industry that is solely dedicated to saving lives?
  Let's ask ourselves, in the event that a bullet from a firearm is 
shot into an innocent victim, is our healthcare system prepared to help 
that victim? Without healthcare liability reform, it may not be, as 
there might not be the appropriate doctor in the area to tend to the 
patient. That is why my amendment goes hand-in-hand with the gun 
immunity bill.
  So now it is up to my colleagues in the Congress. It is their choice. 
If we are going to give legal protections to the gun industry, all I 
say is let's give it to the doctors as well.
  If this choice is given to the American people, there is no doubt 
that the doctors would win by a 100-1 margin.
  Now, I clearly recognize my situation. I want to compliment the 
leadership of both the majority and the minority. They were eminently 
fair. They explained to me the situation, and I am not able to obtain a 
vote on my amendment tonight. It comes as a matter of considerable 
disappointment to me. Nevertheless, I think there are times when 
frankness and honesty have to be shared. Under the current 
parliamentary situation on this bill, it is not possible for me to 
achieve the vote.
  I ask unanimous consent that the magnificent communications I have 
received from a number of groups, physicians and their organizations, 
that have strongly supported the initiative the Senator from Virginia 
has taken on their behalf, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                             College of American Pathologists,

                                    Northfield, IL, March 1, 2004.
     Hon. John Warner,
     U.S. Senate,
     Washington, DC.
       Dear Senator Warner: The College of American Pathologists, 
     a medical specialty serving 16,000 pathologists and the 
     laboratory community, supports your amendment, the Protecting 
     the Practice of Medicine Act. This amendment would ensure 
     that patients have continued access to quality, affordable 
     health care by addressing excessive medical liability costs 
     that are threatening pathologist and other physician 
     practices.
       Physicians are finding that liability insurance is no 
     longer available or affordable. Double digit rate increases 
     coupled with withdrawals of liability insurance providers 
     from the market have forced nearly thirty percent of 
     pathologists to look for new coverage. Your amendment 
     includes key elements of effective reform, such as caps on 
     non-economic and punitive damages, expert witness standards, 
     and preventing excessive attorney contingent fees to maximize 
     the recovery for patients. No limits would be imposed on 
     economic damages and states would be able to maintain their 
     own laws limiting damage awards.
       Again the College supports your amendment and applauds your 
     leadership on this important issue. We look forward to 
     working with you to enact meaningful medical liability reform 
     that will strengthen our health care system and benefit 
     patients.
           Sincerely,

                                    E. Randy Eckert, MD, FCAP,

                                      Chair, Council on Government
     and Professional Affairs.
                                  ____

                                           The American College of


                              Obstetricians and Gynecologists,

                                                    March 1, 2004.
     Hon. John Warner,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Warner: The American College of Obstetricians 
     and Gynecologists (ACOG), an organization representing nearly 
     46,000 physicians, thanks you for introducing S. Amdt. 2624, 
     the Protecting the Practice of Medicine Act, an amendment to 
     S. 1805, the Protection of Lawful Commerce in Arms Act. We 
     appreciate your commitment to resolve the medical liability 
     crisis facing this nation and protect access to needed health 
     care for our nation's women and children.
       ACOG is deeply committed to resolving the medical liability 
     crisis--our number one legislative priority. The crisis is 
     severely jeopardizing women's access to ob-gyn care and 
     worsens with each passing day. Many obstetricians no longer 
     deliver babies, while many others are driven out of the 
     practice completely. And future generations of moms and 
     babies are at risk as fewer and fewer medical students choose 
     to become ob-gyns.
       We are pleased that your amendment contains proven and 
     effective reforms, including a cap on non-economic damages, 
     limits on the number of years a plaintiff has to file a 
     lawsuit, and fair allocation of damages in proportion to a 
     party's degree of fault, as well as important expert witness 
     qualifications.
       It is clear that the Senate presents unique challenges to 
     passing comprehensive legislation. It is important that every 
     effort to focus the Nation's attention on this important 
     issue is taken. Congress must pass, and the President must 
     sign, legislation that will resolve this crisis for all 
     physicians.
       ACOG will do everything to end the medical liability 
     crisis, which is destroying this nation's health care system. 
     We look forward to continuing to work with you in the future 
     on this top priority.
           Sincerely,
                                         Ralph W. Hale, MD, FACOG,
     Executive Vice President.
                                  ____



                                 American College of Surgeons,

                                Washington, DC, February 27, 2004.
     Hon. John Warner,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Warner: On behalf of the 66,000 Fellows of the 
     American College of Surgeons, I am pleased to offer our 
     support for amendment titled Protecting the Practice of 
     Medicine Act. Outrageous medical liability premiums are 
     driving more surgeons from practice and making access for 
     patients more difficult than ever before.

[[Page S1939]]

       We are grateful that you have taken the lead in sponsoring 
     this necessary medical liability reform amendment that 
     promises protections for both patients and physicians. Not 
     only does its assure injured parties full compensation for 
     medical expenses and lost wages, but it also promotes a 
     speedy resolution of claims and directs monetary awards to 
     the patient.
       Surgeons, in particular, have been targeted by skyrocketing 
     medical liability premiums, with some increasing by as much 
     as 300 percent. Many surgeons are being forced to retire 
     earlier, stop providing high-risk procedures, or move to 
     states where strong medical liability reforms are in place.
       While we are offering our support for this amendment, we do 
     have some concerns with the subrogation language. We hope 
     this issue can be resolved as we work with you to move 
     medical liability reform legislation closer to becoming law.
       We appreciate your effort to advance medical liability 
     reform through the United States Senate. If we can be of 
     assistance, please do not hesitate to contact us.
           Sincerely,
                                      Thomas R. Russell, MD, FACS,
     Executive Director.
                                  ____



                             American Osteopathic Association,

                                Washington, DC, February 27, 2004.
     Hon. John W. Warner,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Warner: As President of the American 
     Osteopathic Association (AOA), I write to thank you for 
     introducing the ``Protecting the Practice of Medicine Act'' 
     (S. Amdt. 2624). The AOA, which represents the nation's 
     52,000 osteopathic physicians, support the provisions 
     contained in your amendment and applaud your continued 
     efforts to reform the nation's medical liability system.
       The nation's health care delivery system and patient access 
     to quality and timely health care are damaged greatly by the 
     out-of-control medical liability system. As a result of this 
     crisis, patients in Virginia and numerous other states, face 
     the stark reality that their physician may not be available 
     to them at their time of need.
       Osteopathic physicians are dedicated to providing quality 
     care to their patients. However, many of our members find it 
     difficult to secure professional liability insurance. Those 
     fortunate enough to secure a policy face premiums that are 
     largely unaffordable. As a result, our members are forced to 
     limit the services they offer their patients, move their 
     practices to states with meaningful medical liability 
     reforms, or simply retire from the practice of medicine. 
     Regardless of the decision made, patients are the ones who 
     suffer. They lose access to physician services, they lose 
     access to trauma centers, they lose access to hospitals--
     plain and simple, patients lose.
       It is our opinion that the medical liability crisis is the 
     greatest danger facing the health care delivery system. For 
     this reason, professional liability insurance reform remains 
     the top legislative priority for the AOA. Beyond access 
     problems, the liability crisis is a leading contributor to 
     the escalating costs of health care in this country.
       The AOA and the American public support the enactment of 
     meaningful and comprehensive medical liability reforms in the 
     United States Senate. Please do not hesitate to call upon the 
     AOA and our members for assistance in your efforts on this 
     issue.
           Sincerely,
                                          Darryl A. Beehler, D.O.,
     President.
                                  ____



                                 American Medical Association,

                                                February 27, 2004.
     Hon. John W. Warner,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Warner: On behalf of the physicians and 
     medical students of the American Medical Association (AMA), I 
     am writing to support your proposed medical liability reform 
     amendment to S. 1805, the ``Protection of Lawful Commerce in 
     Arms Act.''
       We are particularly pleased to see that your amendment 
     would establish a $250,000 Federal cap of non-economic 
     damages in medical liability suits against physicians, 
     hospitals, and other health care professionals and entities. 
     The legislation would provide states the flexibility to set 
     equal or lower caps on non-economic damages. It would also 
     protect those states that limit the amount of total damages 
     (including economic and non-economic damages) that may be 
     awarded in a lawsuit.
       We deeply appreciate that your bill includes many of the 
     medical liability reforms that are part of the comprehensive 
     reforms that have proven effective in California and are 
     found in H.R. 5.
       We are concerned, however, that language in the amendment 
     that relates to the collateral source/subrogation provision 
     and the ERISA cause of action/scope of preemption provision 
     could disadvantage patients and physicians. We would value 
     the opportunity to continue to discuss these concerns with 
     you.
       The AMA applauds you for your leadership in offering this 
     amendment and for highlighting the continued and urgent need 
     for medical liability reform at the Federal level. We look 
     forward to working with you toward our mutual goal of 
     enacting comprehensive Federal reforms, including a $250,000 
     cap on non-economic damages.
           Sincerely,
                                        Michael D. Maves, MD, MBA.

  Mr. WARNER. I feel very strongly that we have to recognize, as a 
nation, that the medical profession must, at some point in time, be 
given protections not dissimilar to those protections sought in this 
particular legislation. In this humble Senator's view, I feel it is far 
more important that the medical profession be cared for now, and it 
should be the top priority. The situation is, though, that I cannot get 
a vote on my amendment. I feel this vote would be a very strong one, if 
I could get a vote, because I have stripped out all other beneficiaries 
that were included in previous efforts, such as insurance companies and 
drug manufacturers. I have limited it purely to physicians and nurses. 
I think they need help now because they are not able to deliver that 
quality of medical care they want to give to Americans throughout the 
fifty states.
  With a great sense of disappointment I say that tonight I will not 
withdraw the amendment, it will remain, but under the standing order it 
will, unfortunately, expire automatically. I say to my colleagues, 
though, that I will continue this fight another day.
  I ask unanimous consent to place in the Record the full text of the 
statement I made Friday on the Senate floor in support of my amendment.
  I yield the floor.

                          ____________________