[Congressional Record Volume 150, Number 36 (Monday, March 22, 2004)]
[Senate]
[Pages S2937-S2938]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          MEDICAL MALPRACTICE

  Mr. DURBIN. Mr. President, we face a serious medical malpractice 
problem in Illinois. I have had meetings in the area where I was born 
with doctors and most recently with hospital administrators. The recent 
medical malpractice insurance premium increases for this year were 
only--I underline ``only''--7\1/2\ percent through the Illinois State 
Medical Society, but adjustments will follow for specialties and for 
experience, and for some of these doctors that rate could be increased 
dramatically. I have come away from the meetings convinced now more 
than ever that we need to do something about the medical malpractice 
crisis that faces America.
  I understand, and I think those who follow it understand, that in my 
State of Illinois and in other States around the Nation medical 
malpractice premiums have gone up so dramatically that good doctors who 
have no experience of having ever been sued successfully for medical 
malpractice see their premiums go up by 30, 40 percent, and more. These 
doctors, frankly, cannot continue to practice under those circumstances 
and are forced into early retirement or have to transfer their 
practices to adjoining States with different malpractice laws.
  Hospital administrators talked to me about what it means for them. 
When you do not have a neurosurgeon on staff at a hospital, how can you 
open an emergency room or give trauma care? It is a legitimate, real 
concern. These doctors and hospitals are facing an increased cost for 
malpractice premiums that must be addressed as quickly as possible by 
either the States where these are occurring or by the Federal 
Government.
  Most people point toward a solution that involves tort reform. I am 
one of them. I believe tort reform has to be part of the solution to 
the medical malpractice challenge we face. I also believe we have to 
include elements in this whole issue that address the number of medical 
errors committed each year. Some 98,000 Americans, it is estimated, die 
each year from medical malpractice--not from their disease or the 
illness that brought them to the doctor but simply because they were 
treated improperly and incorrectly.
  It is an epidemic, according to some medical sources. Medical errors 
and medical negligence have to be reduced so the universe of bad 
results is reduced, as well. That will lead, of course, to fewer cases 
being filed and less litigation.
  When it comes to malpractice itself in the courtroom, we have to find 
ways to make certain that only worthy, good, deserving suits go 
forward, to make certain those that should not be filed that may be 
frivolous or unnecessary are stopped early in the process before they 
cost both the doctors, hospitals, and their insurance companies the 
precious resources they are paying each year in premiums. We have to 
figure out a reasonable way to approach this. We can. We can do it on a 
bipartisan basis.
  I reject the idea of caps, which is the only proposal that has been 
brought consistently to the Senate. To say we will sit as a jury for 
medical malpractice cases across America is to take away the jury 
system, which is basic to American government. Instead of 12 people in 
your neighborhood and community making the decision, we will make the 
decision, and we will decide the maximum amount one can recover, 
regardless of the injury which you, as an innocent patient, suffered.

  We need to address tort reform that does not include caps on 
noneconomic losses. We can. I hope we can. I have said to the doctors 
and hospitals, I have reached out across the aisle to my friends on the 
Republican side to find common ground. Be prepared to make concessions 
on both sides, but let's address it now. We cannot allow this to 
continue.
  The one thing we all agree on is even if tort reform is passed 
tomorrow, it will be years before it has any impact in reducing medical 
malpractice premiums. Why? Because the doctors in practice today who 
performed surgeries or dispensed medical services in years gone by are 
liable for years under statutes of limitations for what they have done 
in the past, and those years could be extended to a period when the 
actual injury is discovered which could be many years after the act was 
committed. Even if we change the law today, all of that past conduct 
and exposure to liability will be there, and

[[Page S2938]]

malpractice premiums will continue to be very high.
  What I have proposed is that we do something immediately to provide 
relief to doctors and to hospitals. What I have suggested is that we 
consider the establishment of a tax credit and reimbursement of medical 
malpractice premiums for some doctors and hospitals. Senator Lindsey 
Graham, a Republican from South Carolina, has joined me in this 
amendment. Our amendment allows doctors and hospitals to claim a tax 
credit for a percentage of the malpractice premiums they are paying and 
will pay during the years 2004 and 2005. If a doctor is in a high-risk 
specialty with increased risk of complications, they would be eligible 
for a tax credit equivalent to 20 percent of their total malpractice 
premium. The credit would be taken for premiums up to twice the 
statewide average for the specialty in which the doctor practices.
  Let me explain that. A doctor can deduct his medical malpractice 
insurance costs now from his business costs or his business revenue. We 
could add to that a 20-percent tax credit on top of the deduction. That 
would help these doctors immensely in dealing with the increase in 
these malpractice premiums. High-risk doctors include those in all 
surgical services and subspecialties, emergency medicine, obstetrics, 
or anesthesiology, or those doctors who do interventional work that is 
reflected in their malpractice premiums.
  Doctors who practice in lower risk specialties--general medicine, for 
example--would be eligible for a 10-percent tax credit.
  For-profit hospitals are eligible for a tax credit equivalent to 15 
percent of their total malpractice premium, including nursing homes, as 
well, if they need malpractice insurance.
  Those that are nonprofit institutions, hospitals and nursing homes, 
are eligible for reimbursement under a 2-year grant to the Health 
Resources Services Administration at the Department of Health and Human 
Services.
  What we are trying to do is provide immediate relief while we work 
out the issues of reducing medical errors and tort reform, 
understanding if we pass legislation today, dealing with those two 
issues, tort reform and medical errors, these doctors and hospitals 
would still see staggering premiums for years to come. This is a 
responsible way to address the immediate need.

  I say to my friends in the medical community, though you may not 
agree with me on the issue of caps, I hope you understand that even if 
you had your way and passed the caps limiting recovery for those who 
are victims of medical malpractice, the premiums would still continue 
to increase on your medical malpractice insurance.
  This Durbin-Graham amendment, also supported by Senator Patty Murray 
of Washington, provides immediate relief.

                          ____________________