[Congressional Record Volume 150, Number 47 (Tuesday, April 6, 2004)]
[Senate]
[Pages S3742-S3784]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  PREGNANCY AND TRAUMA CARE ACCESS PROTECTION ACT OF 2004--MOTION TO 
                                PROCEED

  The PRESIDING OFFICER. Under the previous order, the hour of 11 a.m. 
having arrived, the Senate will resume consideration of the motion to 
proceed to the consideration of S. 2207, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 2207) to improve women's access to health care 
     services, and the access of all individuals to emergency and 
     trauma care services, by reducing the excessive burden the 
     liability system places on the delivery of such service.

  The PRESIDING OFFICER. Under the previous order, the Senator from 
Iowa is recognized for an additional 10 minutes.
  Mr. HARKIN. Mr. President, parliamentary inquiry. I did not 
understand I was under a time limit. I had asked to continue to proceed 
after morning business on the motion to proceed, but I didn't recognize 
there was a time limit there. I did not ask consent for 10 minutes.
  The PRESIDING OFFICER. The Senator has been granted 10 minutes to 
speak on any subject he wishes. But the total is 15 minutes under the 
request.
  Mr. HARKIN. I think the record will show that I asked for consent to 
continue to speak in morning business, to yield the floor, to then 
return to the motion to proceed, and that I be recognized to continue 
to speak on the motion to proceed. That does not have a time limit.
  The PRESIDING OFFICER. The Senator is recognized to speak on the 
motion to proceed or on whatever subject he wishes to speak for 10 
minutes and thereafter on the bill.
  Mr. HARKIN. I understand that. I thank the Chair.
  Mr. GREGG. Mr. President, will the Senator yield for a parliamentary 
inquiry?
  Mr. HARKIN. Sure.
  Mr. GREGG. At the end of the Senator's 10 minutes, does the Senator 
come back and retain the floor?
  The PRESIDING OFFICER. It was my understanding that the time under 
the request was that he was going to have a total of 15 minutes. 
Otherwise, there would have been an objection.
  Mr. GREGG. Mr. President, I will be seeking the floor at the 
conclusion of the 10 minutes as the manager of the bill, for 
everybody's knowledge.
  The PRESIDING OFFICER. Under the normal procedure, the manager of the 
bill may speak as soon as a bill is brought up, with the exception of 
the 10 minutes as a continuation of the total of 15 minutes.
  The Senator from Iowa may proceed.
  Mr. HARKIN. I do not mean to take more than 15 minutes. I might go 
into 18 or 20 minutes. I wasn't going to take a long time. I wanted to 
finish my statement without being constrained with the 15 minutes I had 
under morning business. That is why I went on the motion to proceed. I 
will speak on that for an additional few minutes. But I will take 
whatever time I can now. If I am cut off, I will be back.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, Mr. Herbert further said:

       Andrew Sum, the center's director and lead author of the 
     study, said: ``This is the first time we've ever had a case 
     where two years into a recovery, corporate profits got a 
     larger share of the growth of national income than labor did. 
     Normally labor gets about 65 percent and corporate profits 
     about 15 to 18 percent. This time profits got 41 percent and 
     labor [meaning all forms of employee compensation, including 
     wages, benefits, salaries and the percentage of payroll taxes 
     paid by employers] got 38 percent.''
       The study said: ``In no other recovery from a post-World 
     War II recession did corporate profits ever account for as 
     much as 20 percent of the growth in national income. And

[[Page S3743]]

     at no time did corporate profits ever increase by a greater 
     amount than labor compensation.''
       In other words, an awful lot American workers have been 
     had. Fleeced. Taken to the cleaners.
       The recent productivity gains have been widely 
     acknowledged. But workers are not being compensated for this. 
     During the past two years, increases in wages and benefits 
     have been very weak, or nonexistent. And despite the growth 
     of jobs in March that had the Bush crowd dancing in the White 
     House halls last Friday, there has been no net increase in 
     formal payroll employment since the end of the recession. We 
     have lost jobs. There are fewer payroll jobs now than there 
     were when the recession ended in November 2001.
       So if employers were not hiring workers, and if they were 
     miserly when it came to increases in wages and benefits for 
     existing employees, what happened to all the money from the 
     strong economic growth?
       The study is very clear on this point. The bulk of the 
     gains did not go to workers, ``but instead were used to boost 
     profits, lower prices, or increase C.E.O. compensation.''
       This is a radical transformation of the way the bounty of 
     this country has been distributed since World War II. Workers 
     are being treated more and more like patrons in a rigged 
     casino. They can't win.
       Corporate profits go up. The stock market goes up. 
     Executive compensation skyrockets. But workers, for the most 
     part, remain on the treadmill.
       The study found that the amount of income growth devoured 
     by corporate profits in this recovery is ``historically 
     unprecedented,'' as is the ``low share . . .  accruing to the 
     nation's workers in the form of labor compensation.''

  I thought Mr. Herbert wound up his statement quite adequately when he 
said:

       I have to laugh when I hear conservatives complaining about 
     class warfare. They know this terrain better than anyone. 
     They launched the war. They're waging it. And they're winning 
     it.

  One of the reasons they are winning it is because workers no longer 
have organized labor. Organized labor has been weakened to the point 
where workers are told: Take what you got or go get something else or 
we will take your job and we will take it to China or we will take your 
job and move it to India or South Africa or some other place. You have 
no recourse as a worker.
  I have tried for years in this Senate and in this Congress to try to 
get a bill passed called the striker replacement bill which says if you 
are on strike you can't be replaced with a replacement worker. That one 
thing alone has broken the back of organized labor to the point where 
workers no longer have the power to withhold their labor, the only tool 
with which they have to bargain.
  So here we have more and more of the earnings from increased 
productivity going to capital and less going to workers. What do we do 
about it? We say now we are going to take away your time-and-a-half 
overtime. That is the next assault on the time-and-a-half overtime. For 
our workers who are working more and more in this country and working 
longer hours than any other industrialized country, we are going to say 
to workers we will take away your right to overtime.
  That issue was brought up on the bill that was before us earlier. 
That was my amendment, to say these proposed rules by the Department of 
Labor that would deny up to 8 million Americans their right to time-
and-a-half overtime could not go into effect. Now we find that not only 
is the administration trying to push through new rules to eliminate 
overtime pay; at the same time, many employers are illegally pushing 
the same thing. They are doctoring their employee time records in order 
to avoid paying overtime. This practice is shaving time. It is easy to 
do, it is hard to detect, and is done in a matter of a few keystrokes.
  According to the New York Times article on Sunday by Steven 
Greenhouse:

       Workers have sued Family Dollar and Pep Boys, the auto 
     parts and repair chain, accusing managers of deleting hours. 
     A jury found the Taco Bell managers in Oregon had routinely 
     erased workers' time. More than a dozen former Wal-Mart 
     employees said in interviews and depositions that managers 
     had altered time records and shortchanged employees.

  I ask unanimous consent a copy of the New York Times article be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Apr. 4, 2004]

      Altering of Worker Time Cards Spurs Growing Number of Suits

                         (By Steven Greenhouse)

       As a former member of the Air Force military police, as a 
     play-by-the-rules guy, Drew Pooters said he was stunned by 
     what he found his manager doing in the Toys ``R'' Us store in 
     Albuquerque.
       Inside a cramped office, he said, his manager was sitting 
     at a computer and altering workers' time records, secretly 
     deleting hours to cut their paychecks and fatten his store's 
     bottom line.
       ``I told him, `That's not exactly legal,' '' said Mr. 
     Pooters, who ran the store's electronics department. ``Then 
     he out-and-out threatened me not to talk about what I saw.''
       Mr. Pooters quit, landing a job in 2002 managing a Family 
     Dollar store, one of 5,100 in that discount chain. Top 
     managers there ordered him not to let employees' total hours 
     exceed a certain amount each week, and one day, he said, his 
     district manager told him to use a trick to cut payroll: 
     delete some employee hours electronically.
       ``I told her, `I'm not going to get involved in this,' '' 
     Mr. Pooters recalled, saying that when he refused, the 
     district manager erased the hours herself.
       Experts on compensation say that the illegal doctoring of 
     hourly employees' time records is far more prevalent than 
     most Americans believe. The practice, commonly called shaving 
     time, is easily done and hard to detect--a simple matter of 
     computer keystrokes--and has spurred a growing number of 
     lawsuits and settlements against a wide range of businesses.
       Workers have sued Family Dollar and Pep Boys, the auto 
     parts and repair chain, accusing managers of deleting hours. 
     A jury found that Taco Bell managers in Oregon had routinely 
     erased workers' time. More than a dozen former Wal-Mart 
     employees said in interviews and depositions that managers 
     had altered time records to shortchange employees. The 
     Department of Labor recently reached two back-pay settlements 
     with Kinko's photocopy centers, totaling $56,600, after 
     finding that managers in Ithaca, NY, and Hyannis, MA, had 
     erased time for 13 employees.
       ``There are a lot of incentives for store managers to cut 
     costs in illegal ways,'' said David Lewin, a professor of 
     management who teaches a course on compensation at the 
     University of California, Los Angeles. ``You hope that would 
     be contrary to company practices, but sometimes these 
     practices become so ingrained that they become the dominant 
     practice.''
       Officials at Toys ``R'' Us, Family Dollar, Pep Boys, Wal-
     Mart and Taco Bell say they prohibit manipulation of time 
     records, but many acknowledge that it sometimes happens.
       ``Our policy is to pay hourly associates for every minute 
     they work,'' said Mona Williams, vice president for 
     communications at Wal-Mart. ``With a company this large, 
     there will inevitably be instances of managers doing the 
     wrong thing. Our policy is if a manager deliberately deletes 
     time, they're dismissed.''
       Compensation experts say that many managers, whether at 
     discount stores or fast-food restaurants, fear losing their 
     jobs if they fail to keep costs down.
       ``A lot of this is that district managers might fire you as 
     soon as look at you,'' said William Rutzick, a lawyer who 
     reached a $1.5 million settlement with Taco Bell last year 
     after a jury found the chain's managers guilty of erasing 
     time and requiring off-the-clock work. ``The store managers 
     have a toehold in the lower middle class. They're being paid 
     $20,000, $30,000. They're in management. They get medical. 
     They have no job security at all, and they want to keep their 
     toehold in the lower middle class, and they'll often do 
     whatever is necessary to do it.''
       Another reason managers shave time, experts say, is that an 
     increasing part of their compensation comes in bonuses based 
     on minimizing costs or maximizing profits.
       ``The pressures are just unbelievable to control costs and 
     improve productivity,'' said George Milkovich, a long time 
     Cornell University professor of industrial relations and co-
     author of the leading textbook on compensation. ``All this 
     manipulation of payroll may be the unintended consequence of 
     increasing the emphasis on bonuses.''
       Beth Terrell, a Seattle lawyer who has sued Wal-Mart, 
     accusing its managers of doctoring time records, said: ``Many 
     of these employees are making $8 an hour. These employees can 
     scarcely afford to have time deleted. They're barely paying 
     their bills already.''
       In the punch-card era, managers would have had to conspire 
     with payroll clerks or accountants to manipulate records. But 
     now it is far easier for individual managers to accomplish 
     this secretly with computers, payroll experts say.
       Mr. Pooters, a father of five who left the Air Force in 
     1997 for a career in retailing, talks with disgust about 
     photocopied Toys ``R'' Us records that he said showed how his 
     manager made it appear that he had clocked out much earlier 
     than he had.
       ``Unless you keep track of your time and keep records of 
     when you punch in and punch out, there's no way to stop 
     this,'' he said.
       After leaving Toys ``R'' Us and Family Dollar, Mr. Potters 
     moved to Indiana and took a job as an account manager with 
     Rentway, a chain that leases furniture and electronics. 
     There, he and a co-worker, William Coombs, said, the workload 
     was so intense that they typically missed four lunch breaks a 
     week. Nonetheless, they said, their

[[Page S3744]]

     manager inserted a half-hour for lunch into their time 
     records every day, reducing their pay accordingly.
       ``They told us to sign the payroll printouts to confirm it 
     was right,'' Mr. Pooters said, describing a confrontation 
     last November. ``When we protested about what happened with 
     our lunch hours, the manager said, `If you don't sign, you're 
     not going to get paid.' ''
       Mr. Coombs said: ``They removed our lunch hours all the 
     time. We were told if we didn't sign the payroll sheets, we'd 
     be terminated.''
       Larry Gorski, Rentway's vice president for human resources, 
     said his company strictly prohibited erasing time. ``As soon 
     as we hear this is going on, we jump all over it,'' he 
     said.
       Shannon Priller, who worked at a Family Dollar store in Rio 
     Rancho, N.M., sheepishly acknowledged that she sometimes 
     watched her district manager erase her hours. ``The manager 
     and I would sit there and go over everybody's time cards,'' 
     she said. ``We were told not to go over payroll, or we would 
     lose our jobs. If we were over, my hours would get shaved.''
       Some weeks, she said, she lost 10 or 15 hours, and her 6 
     a.m. clock-in time became 9 a.m. Patricia Bauer, a clerk at 
     the store, said her paycheck was sometimes cut to under 30 
     hours on weeks when she worked 40.
       Like Mr. Pooters, these women have joined a lawsuit that 
     accuses Family Dollar of erasing time and requiring off-the-
     clock work. ``It needs to stop,'' said Ms. Priller, who now 
     cleans houses.
       Kim Danner said that when she ran a Family Dollar store 
     with eight employees in Minneapolis, her district manager 
     urged her to erase hours so that she never paid overtime or 
     exceeded her allotted payroll. Federal law generally requires 
     paying time-and-a-half to nonmanagerial employees who work 
     more than 40 hours a week.
       Ms. Danner said her employees could not do all the 
     unloading, stocking, cashier work and pricing of merchandise 
     in the hours allotted. ``The message from the district 
     manager was, basically, `I don't care how you do it, just get 
     it done,' '' she said.
       So she altered clock-out times and inserted half-hour lunch 
     breaks even when employees had worked through them. ``I felt 
     horrible that I was doing this,'' she said. ``I felt 
     pressured, absolutely. If I refused, I would have been 
     terminated easily.''
       After five months, she quit.
       Sandra Wilkenloh, Family Dollar's communications director, 
     declined to respond to the lawsuit, but said, ``Family 
     Dollar's policy is to fully comply with all wage and hour 
     laws and to take appropriate disciplinary action in any case 
     where we determine that such policy has been violated.''
       She said Family Dollar maintained a hot line that employees 
     could call anonymously to report wage violations.
       Rosann Wilks, who was an assistant manager at a Pep Boys in 
     Nashville, said she was fired in 2001 after refusing to 
     delete time. She said her district manager told her, ``Under 
     no circumstances at all is overtime allowed, and if so, then 
     you need to shave time.''
       At first, she bowed to orders and erased hours. Some 
     employees began asking questions, she said, but they refused 
     to confront management. ``They took it lying down,'' she 
     said. ``They didn't want to lose their job. Jobs are hard to 
     find.''
       When she started feeling guilty and confronted her district 
     manager, she said, ``It all came to a boil. He fired me.''
       Bill Furtkevic, Pep Boys' spokesman, said his company did 
     not tolerate deleting time.
       ``Pep Boys' policy dictates, and record demonstrates, that 
     any store manager found to have shaved any amount of employee 
     time be terminated,'' he said. He added that the company's 
     investigation ``revealed no more than 21 instances over the 
     past five years where time shaving'' had occurred.
       More than a dozen former Wal-Mart employees said time 
     records were altered in numerous ways. Some said that when 
     they clocked more than 40 hours a week, managers transferred 
     extra hours to the following week, to avoid paying overtime. 
     Federal law bars moving hours from one week to another.
       Wal-Mart executives acknowledged that one common practice, 
     the ``one-minute clock-out,'' had cheated employees for 
     years. It involved workers who clocked our for lunch and 
     forgot to clock back in before finishing the day. In such 
     situations, many managers altered records to show such 
     workers clocking out for the day one minute after their lunch 
     breaks began--at 12:01 p.m., for example. That way a worker's 
     day was often three hours and one minute, instead of seven 
     hours.
       Ms. Williams, the Wal-Mart spokeswoman, said Wal-Mart had 
     broadcast a video to store managers last April telling them 
     to halt all one-minute clock-outs. Under the new policy, when 
     workers fail to clock in after lunch, managers must do their 
     best to determine what their true workday was.
       In interviews, five former Wal-Mart managers acknowledged 
     erasing time to cut costs. Victor Mitchell said that as an 
     assistant manager in Hazlehurst, Miss., in 1997, he 
     frequently shaved time.
       ``We were told we can't have any overtime,'' he said. 
     ``It's what the other assistant managers were doing, and I 
     went along with it.''
       Mr. Mitchell said the store's manager ordered them to stop. 
     But he said that in 2002, after becoming manager of a Wal-
     Mart in Bogalusa, La., a new district ordered him to erase 
     overtime. He said he refused.
       Ms. Williams said Wal-Mart had increased efforts to stop 
     managers from shaving time or allowing off-the-clock work.
       Wal-Mart has circulated a ``payroll integrity'' memo, 
     saying that any worker, ``hourly or salaried, who knowingly 
     falsifies payroll records is subject to disciplinary action 
     up to an including termination.''
       Employees at Wal-Mart and other companies complain that 
     they receive no paper time records, making it hard to 
     challenge management when their paychecks are inexplicably 
     low.
       Ms. Danner, the former Family Dollar manager, praised the 
     system at the McDonald's restaurant she managed for seven 
     years. At day's end, she said, employees received a printout 
     detailing total hours worked and when they clocked in and 
     out.
       ``We never had any problems like this at McDonald's,'' she 
     said.

  Mr. HARKIN. I also ask unanimous consent that yesterday's article by 
Bob Herbert be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Apr. 5, 2004]

               We're More Productive. Who Gets the Money?

                            (By Bob Herbert)

       It's like running on a treadmill that keeps increasing its 
     speed. You have to go faster and faster just to stay in 
     place. Or, as a factory worker said many years ago, ``You can 
     work 'til you drop dead, but you won't get ahead.''
       American workers have been remarkably productive in recent 
     years, but they are getting fewer and fewer of the benefits 
     of this increased productivity. While the economy, as 
     measured by the gross domestic product, has been strong for 
     some time now, ordinary workers have gotten little more than 
     the back of the hand from employers who have pocketed an 
     unprecedented share of the cash from this burst of economic 
     growth.
       What is happening is nothing short of historic. The 
     American workers' share of the increase in national income 
     since November 2001, the end of the last recession, is the 
     lowest on record. Employers took the money and ran. This is 
     extraordinary, but very few people are talking about it, 
     which tells you something about the hold that corporate 
     interests have on the national conversation.
       The situation is summed up in the long, unwieldy but very 
     revealing title of a new study from the Center for Labor 
     Market Studies at Northeastern University: ``The 
     Unprecedented Rising Tide of Corporate Profits and the 
     Simultaneous Ebbing of Labor Compensation--Gainers and Losers 
     from the National Economic Recovery in 2002 and 2003.''
       Andrew Sum, the center's director and lead author of the 
     study said: ``This is the first time we've ever had a case 
     where two years into a recovery, corporate profits got a 
     larger share of the growth of national income than labor did. 
     Normally labor gets about 65 percent and corporate profits 
     about 15 to 18 percent. This time profits got 41 percent and 
     labor [meaning all forms of employee compensation, including 
     wages, benefits, salaries and the percentage of payroll taxes 
     paid by employers] got 38 percent.''
       The study said: ``In no other recovery from a post-World 
     War II recession did corporate profits ever account for as 
     much as 20 percent of the growth in national income. And at 
     no time did corporate profits ever increase by a greater 
     amount than labor compensation.''
       In other words, an awful lot of American workers have been 
     had. Fleeced. Taken to the cleaners.
       The recent productivity gains have been widely 
     acknowledged. But workers are not being compensated for this. 
     During the past two years, increases in wages and benefits 
     have been very weak, or nonexistent. And despite the growth 
     of jobs in March that had the Bush crowd dancing in the White 
     House halls last Friday, there has been no net increase in 
     formal payroll employment since the end of the recession. We 
     have lost jobs. There are fewer payroll jobs now than there 
     were when the recession ended in November 2001.
       So if employers were not hiring workers, and if they were 
     miserly when it came to increases in wages and benefits for 
     existing employees, what happened to all the money from the 
     strong economic growth?
       The study is very clear on this point. The bulk of the 
     gains did not go to workers, ``but instead were used to boost 
     profits, lower prices, or increase C.E.O. compensation.''
       This is a radical transformation of the way the bounty of 
     this country has been distributed since World War II. Workers 
     are being treated more and more like patrons in a rigged 
     casino. They can't win.
       Corporate profits go up. The stock market goes up. 
     Executive compensation skyrockets. But workers, for the most 
     part, remain on the treadmill.
       When you look at corporate profits versus employee 
     compensation in this recovery, and then compare that, as Mr. 
     Sum and his colleagues did, with the eight previous 
     recoveries since World War II, it's like turning a chart 
     upside down.
       The study found that the amount of income growth devoured 
     by corporate profits in this recovery is ``historically 
     unprecedented,'' as is the ``low share . . . accruing to

[[Page S3745]]

     the nation's workers in the form of labor compensation.''
       I have to laugh when I hear conservatives complaining about 
     class warfare. They know this terrain better than anyone. 
     They launched the war. They're waging it. And they're winning 
     it.

  Mr. HARKIN. Mr. President, the article went on to point out that Kim 
Danner used to manage a Family Dollar store with eight employees in 
Minneapolis. She says:

     . . . her district manager urged her to erase hours so she 
     never paid overtime or exceeded her allotted payroll.

  She said her employees could not do all of the unloading, stocking, 
cashier work, and pricing in the hours allotted, so she altered clock-
out times and inserted half-hour lunch breaks, even when employees 
worked through lunch. She says:

       I felt horrible that I was doing this. I felt pressured, 
     absolutely. If I refused, I would have been terminated 
     easily.

  Instead of issuing new rules to officially eliminate overtime for 
millions of Americans, the Department of Labor ought to be cracking 
down on these unscrupulous companies. The Department of Labor ought to 
be enforcing the overtime laws so American workers are not gouged and 
cheated out of their hard-earned pay.
  Now we see clearly where the increased productivity is coming from. 
American workers are working longer hours, they are working through 
their lunchtimes, but their hours are being shaved. Their time is taken 
away from them. Sometimes they clock out and they are made to come back 
to work. Rather than making an example of these companies and going 
after them, the Department of Labor is coming around the other side and 
saying, well, that may be illegal, but what we are going to do is make 
it legal to take away the overtime rights of up to 8 million workers. 
In fact, even in the proposed rules, the Department offered employers 
helpful tips on how to avoid paying overtime to the lowest paid 
workers, the very workers, of course, supposedly helped by the new 
rules.
  For example, the Department of Labor, in their own writing, suggests 
cutting a worker's hourly wage so any new overtime payments will not 
result in a net gain to the employee. The Department of Labor also 
recommends raising a worker's salary slightly to meet the threshold at 
which eligibility for time-and-a-half pay ends.
  Again, American workers face a double-barreled threat to their 
overtime rights. They face a threat from unscrupulous employers who 
deny overtime illegally and now they face a threat from the Department 
of Labor which wants to deny overtime legally. But the result is the 
same: an assault on the American worker's right to time-and-a-half pay 
for hours worked in excess of 40 hours a week.
  We are going to continue to try to offer this amendment and to try to 
get a vote on it. In Rollcall today there is an article saying ``Will 
`Obstructionist' Label Stick?'' Evidently, our majority leader last 
week said: Obstruction, obstruction, obstruction--every bill. That is 
according to Majority Leader Frist, at least according to the article 
in Rollcall.
  I have the greatest respect for Senator Frist. He knows that. I like 
him as a friend. But quite frankly, that will not wash. The first 
ruling on FSC was in 2002.
  Mr. President, I will continue my remarks later today.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. I understand the motion to proceed has been reported.
  The PRESIDING OFFICER. Yes.
  Mr. GREGG. We are now moving on to the issue of how we give the 
American people better access to doctors, especially women who are 
having children, people who have experienced a traumatic event and have 
gone to the emergency room.
  Regrettably, in our society today we are seeing a lot of highly 
qualified people in the medical professions--not only doctors, but 
nurse midwives and ambulance professionals, EMT professionals--giving 
up the practice which they love; in the case of an OB doctor, 
delivering a baby, and in the case of emergency room personnel, 
especially the doctor, trying to save lives--having given up those 
professions or significantly curtailed the extent to which they 
practice their profession because the cost of their liability insurance 
due to lawsuits has gotten so high there is no way they can earn enough 
money to cover the premiums they have to pay to purchase the liability 
coverage. Of course, there is no hospital in America today which allows 
a doctor to practice unless that doctor has adequate liability 
coverage.
  This is a crisis. It is a crisis in a lot of States in this country. 
It is soon to be a crisis in even more States. There are 19 States 
which the American Medical Association has identified as in crisis. 
There is another group, I think 23, the American Medical Association 
has said moving toward crisis. The red States on the chart are in 
crisis and the yellow States are the States moving toward crisis. There 
are 11 States which are doing pretty good, which have their medical 
liability issues under control.
  This bill attempts to create a national response to this problem so 
women who are having children or want to have children can see a 
doctor. If you are in a car accident and you have a serious injury, or 
you are walking down the road and you slip and fall and have a serious 
injury, or you have any other type of physical injury and you go to 
your emergency room, you will see a doctor who is capable of taking 
care of you. That is what this bill tries to address.
  The issue, of course, is these doctors want to deliver these 
services. It is not as if they want to get out of the business or out 
of the activity for which they have trained all their lives, such as 
delivering a baby. I have had meetings with doctors in my home State. I 
remember distinctly a doctor from Dover, a woman who loves to deliver 
babies. This is what really excites her about being a doctor. It is why 
she went to medical school. It is why she went to graduate school 
afterwards. But she has actually had to stop delivering babies. The 
only babies she now delivers are members of her own family. She has to 
get special dispensation from the hospital to do that because as an OB/
GYN she cannot afford the insurance necessary to cover her costs of 
delivering those children.
  We have regions in our State, and it is true in every State that has 
any sort of rural atmosphere, where we literally do not have any 
coverage at all, where a woman in northern New Hampshire who has 
decided to have a child has to drive 10 miles--10 would be 
conservative--20, 30, 40 miles or more in order to see an obstetric 
doctor, in order to get care during her pregnancy.
  It is darn dangerous in New Hampshire in the middle of the winter to 
drive those miles, especially if you are pregnant or, Lord forbid, you 
happen to actually be in labor. The local hospitals do not have doctors 
on call, do not have doctors, period, who are willing to practice 
delivering babies. So these women find themselves placed on the road in 
order to see a doctor.
  This is true across the country in our urban areas. A lot of 
hospitals are finding it very hard to get coverage in their emergency 
rooms--emergency room closed. In Phoenix Memorial Hospital--emergency 
room closed.

  Why was it closed? It was closed because the doctors who covered the 
emergency room could not afford the cost of the insurance they had to 
pay to meet the demands of the trial bar which has been suing the 
doctors. They had to back out of the business or out of the activity of 
covering the emergency room, so the emergency room got closed.
  You talk to hospitals across this country, and they are finding it 
very difficult to get doctors to do the call, to do their period where 
they have to come in and do their coverage responsibilities because of 
the fact the local doctors do not want to put at risk their insurance 
premiums as a result of going into the emergency room and practicing 1 
day a week or 2 days a week, as has been the tradition.
  I know in the town I grew up in, Nashua, NH, the medical community, 
the physicians, would take turns. They would come on rotation into the 
emergency room and cover the emergency room. They were not all trauma 
specialists, but that was sort of their responsibility as being part of 
the medical community in the city of Nashua, and they were proud of it.
  Today it is very hard to get doctors who are not trauma specialists 
into the emergency room because of the fact

[[Page S3746]]

these insurance premiums have gotten so out of control, and the trauma 
specialists themselves cannot afford the premiums because it is a low-
paying area of the medical profession. As a result, they cannot work 
long enough hours; and they work outrageous hours already. There are 
not enough hours in the day for them to work in order to cover the cost 
of their insurance. This is a crisis.
  The same is true of baby doctors. I had a doctor in Laconia tell us--
Laconia, NH; a great town on Lake Winnipesaukee. I hope everybody will 
go up and visit this summer. It is a beautiful place to take your 
summer vacation. He told us he has to work 5\1/2\ months of the year to 
pay the premiums on his insurance because he delivers babies, and they 
are down to two doctors who do this in his area. That makes it 
economically unviable for him to practice obstetrics. When it takes 
5\1/2\ months to pay your premiums and 6 months to pay your taxes, you 
only have 2 weeks of the year you earn for yourself, and you still have 
to send your kids to college and maybe even buy your wife something for 
Christmas--you cannot do it--or your husband. A lot of the OB doctors 
are, obviously, women. So it is serious.
  Yet we have in this institution tried time and again to raise the 
issue, and what has happened? We have been stonewalled by the other 
side. Why would the other side not even be willing to allow us to 
proceed to these bills? This is the third time we have tried this, to 
get to these bills to discuss how we are going to relieve the pressure 
on doctors who deliver babies and doctors who take care of emergency 
rooms. We are not even expecting it necessarily to pass. We would like 
it to pass, but we at least want to be able to debate it. Yet time and 
again the Democratic leadership of this institution has said: No, you 
are not even going to be allowed to proceed to the bill. That is what 
we are trying to get to today with the motion to proceed. It is a 
technical motion, meaning it is a way to try to get the bill to the 
floor so it is up for action.
  I heard the Senator from Iowa out here railing about a rule at the 
Labor Department, and he cannot get his amendment up. Well, one of the 
reasons he cannot get his amendment up is because we cannot move to 
this bill. If we could move to this bill, he could offer his amendment. 
So why is he voting against moving to this bill? Because it appears he 
is more inclined to support the position of the trial lawyers, who are 
resisting, in a manner of extreme intensity, any action in this area to 
try to improve the ability of doctors to deliver care, by making more 
doctors available to women specifically, or more doctors available in 
the emergency room, and who are resisting that so aggressively they 
have told the leadership of the other side, the Democratic leadership: 
You shall not, if you expect to continue to get our support--the trial 
lawyers' support--allow this bill to be debated on the floor of the 
Senate. You shall not allow a motion to proceed. So it is an ironic 
situation, to say the least.

  We hear the Members of the other side saying they want to offer 
amendments, they want to get this issue up and that issue up. Yet they 
are filibustering a motion to proceed to a bill which, if we did 
proceed to it, would allow them to offer the exact amendments they 
claim they cannot raise. But it appears there is a countervailing force 
here which is, maybe they do not want to offer that amendment so much 
they would affront the trial lawyers by allowing this bill to proceed. 
That appears to be the case.
  But in the end, who is the loser? Who is the loser? Well, the loser 
is, obviously, the doctors who cannot practice what they have been 
trained to do. We are about to hear from one member of that profession 
who is an extraordinary example of that profession in quality and 
ability. And, secondly, the most important, the women, especially in 
rural areas, who cannot see a doctor if they are having a baby; and 
people who walk into that emergency room under extreme stress and 
trauma and suddenly find there is nobody there to take care of them.
  Mr. President, I will reserve my further comments because I do see 
the leader is on the floor. Of course, this is an issue which he has an 
intimate knowledge of and an intense desire to move forward. I 
congratulate him for his efforts in this area, and thank him for making 
this time available to us.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader.
  Mr. FRIST. Mr. President, I will take a few moments to comment on a 
bill that deserves to be debated on this floor and brought to this 
floor because, as the distinguished Senator from New Hampshire said, 
the patients--not the doctors and not the system; all of them are 
disadvantaged--but it is the patients who suffer.
  When people hear of patients, they say: That is somebody in a 
hospital somewhere who is suffering. No, it is you and your children, 
and everybody who is listening to me. Who knows? You could be driving 
home today from work, and you might have an accident and have to go to 
the emergency room or the trauma room. Or after you pick up your kids 
from school--or maybe they are taking the bus home from school today--
if they are struck by a car, or fall down and break a bone, they have 
to go to the emergency room. Or if you are one of the millions of women 
who anticipate the joy of having a baby in the near future, it is you 
who will suffer as you look for an obstetrician, as you look for an 
obstetrician who will be with you during that prenatal period or over 
the whole 9-month period.
  All of this comes down to a fundamental issue. Our medical litigation 
system is broken. It is failing. It is failing the American people. It 
is failing our communities. It is failing our hospitals. It is failing 
our doctors. It is failing our families. And, most importantly, it is 
failing our patients.
  The medical litigation system should be strong. Its purpose is to 
promote the common good, first and foremost; and, second, to improve 
health care for all Americans through the fair and efficient resolution 
of meritorious medical negligence claims. Indeed, those two purposes--
to promote the common good and to improve health care through the fair 
and efficient resolution of meritorious medical negligence claims--are 
noble goals.
  But instead of achieving these noble goals, our litigation system is 
out of control and patients are being hurt. Due to this broken system 
of medical justice, medical liability premiums today are unnecessarily 
skyrocketing. You will hear the words ``skyrocketing'' and ``runaway'' 
because that is what is happening. The ultimate victims are the 
patients--the potential patients, the future patients--and that means 
all of us, our families and future generations.
  The ultimate victims are patients who see their access to care--to 
that obstetrician, to that emergency room, to that trauma center--
threatened and, in some cases, totally disappearing. The American 
Medical Association now lists 19 States where access to care is 
threatened. The situation is a crisis that is getting worse day by day 
by day. That is why as majority leader, in terms of scheduling in the 
Senate, we are going to keep bringing this issue back because the 
crisis is getting worse. If we are not successful, we will come back 
again and again.
  While the crisis does affect all people who will need or who need 
appropriate access to care, it affects those who are seeking help from 
specialists in particular. When we say ``high-risk specialist 
physicians,'' they are the ones who are responding to a trauma accident 
or the neurosurgeon who has to be highly trained to respond to a brain 
injury, a contusion, a head injury. When we say ``high-risk medical 
specialist,'' we mean the cardiac surgeon, a high-risk specialty 
physician who is called in if trauma comes into an emergency room.
  These patients who seek the high-risk medical specialist indeed are 
among the most sick and the ones who most desperately need urgent 
attention. But our litigation system is increasingly forcing these 
medical specialists, such as neurosurgeons and obstetricians, to drop 
their services altogether and not do those higher risk responses; to 
limit those services maybe to certain hours to not provide those 
services; not to offer those services in the emergency setting but do 
them in a much more controlled environment.
  It is even causing these high-risk medical specialists to pick up 
their practices and move from one State,

[[Page S3747]]

say, from cities such as Philadelphia, where premiums are skyrocketing, 
to a city in California that has done a much better job and that is not 
in crisis because they have legislated appropriately in terms of 
addressing what was 20 years ago a crisis in California in medical 
liability. It causes these neurosurgeons and obstetricians--the two 
areas we are addressing in part with the legislation we are doing our 
best to bring to the floor over the next 24 hours--to retire from the 
practice of medicine altogether. They are saying: It is too much, 
$400,000 as a neurosurgeon in some cities, just for liability premiums. 
I can't afford that. I am going to leave the whole practice of 
neurosurgery. It does not make sense for me anymore.
  That is the reality today. It is a reality that is getting worse. And 
when we say it is a crisis, it is a crisis getting worse. And that 
demands a response by this body. As the services these specialists 
provide become harder and harder to find, who is hurt? Everybody, yes, 
but the sickest and, indeed, the most vulnerable are the ones hurt the 
worst; again, demonstrating the perverse and unintended consequences of 
a failing medical litigation system. That is why this week we are 
bringing to the floor this medical liability reform. It is for the 
patients.
  The Pregnancy and Trauma Care Access Protection Act focuses liability 
reform on two areas: Emergency and trauma care, and obstetrical 
services, where the services are provided right before, during, and 
after the delivery of babies. It is these two critical areas that are 
literally under siege today because they rely on medical specialists 
who are suffering the most from this lawsuit abuse.

  Of course, the true victims are those who need to go to the emergency 
room, as the distinguished Senator from New Hampshire said. It is not 
the physicians themselves. It is the people who have to go to the 
emergency rooms and wait longer for a specialist to be called in 
because they are not in the hospital, or there is nobody in the region. 
It is the expectant mother who is having difficulty even finding an 
obstetrician. And it is the stories that are increasingly occurring of 
once you get an obstetrician, right after you become pregnant, that 
obstetrician leaves and moves and another obstetrician comes in, and 
maybe that obstetrician stays a few months and then another 
obstetrician. So we have a huge medical problem. It is our 
responsibility to respond.
  Before coming to the Senate, I spent 20 years both training and 
practicing as a thoracic surgeon, a chest surgeon, which is heart, 
lungs, trachea--really everything between the diaphragm and the neck. 
That is what I did. As a member of the thoracic surgical team at 
Vanderbilt University Medical Center, we handled all of the trauma to 
the chest, the lungs, the heart. That is what I did every day.
  At that level I trauma center, which covered throughout the middle 
section of Tennessee, if somebody came in with a knife wound to the 
chest, they would call Dr. Frist, and I would go down and repair the 
knife wound to the chest or to the heart, as a medical specialist. 
Based on that experience, I can tell you that emergency care and trauma 
care is an absolutely necessary and critical component of our overall 
health care system.
  Each year, there are 110 million visits to the emergency room, and 90 
percent of these visits require urgent attention, emergency attention 
within 2 hours. These are emergencies. As I implied earlier, no one can 
predict when you are going to need that care. Driving home today, will 
you be in an accident, or will your child fall down and break a bone 
climbing a tree this afternoon? That is emergency care that you want a 
response to immediately.
  The Alliance of Specialty Medicine has documented the important 
details of this critical care. Approximately 28 million Americans visit 
the emergency room each year due to an accident. Ninety-nine percent 
will recover after receiving care; in many cases, lifesaving care. Over 
3.5 million emergency room visits are related to bone fractures or to 
broken bones. Of these, 888,000 require hospitalization, and delays in 
treatment can result in loss of the use of that limb, amputation of 
that limb, or indeed permanent disability. Over 1.5 million people 
suffer traumatic head injury with damage to the brain itself.
  Neurosurgeons, a focus in the legislation we are debating, perform 
over 36,000 emergency brain operations on head-injured patients each 
year. They place little intracranial monitoring devices to control 
brain swelling in another 8,000 patients each year. Trauma frequently 
inflicts damage to the spinal cord which runs through the body. Indeed, 
over 70,000 Americans are hospitalized because of spinal injuries each 
year. Another 26,000 are hospitalized with acute or emergency or sudden 
neck injuries.
  And, as we all know, nerve tissue heels in a very slow, different 
way. You cut off blood supply to the spinal cord or to the brain and 
there is not an immediate response. That tissue pretty much dies 
forever; very slow recovery. Thus that time of response becomes 
critical. Delay in treating any sort of injuries to the spinal cord can 
cause paresthesia or tingling, paralysis, can cause permanent 
disability, and, of course, can cause death.
  My own specialty was the chest and was cardiothoracic, 
cardiovascular, the heart itself. When you look at emergencies coming 
in because of heart attack or cardiovascular disease or stroke, the 
blood vessel is huge. Sixty-five million Americans have some form of 
heart and blood vessel, or cardiovascular disease, which could lead to 
a heart attack or stroke; and each year over 1 million Americans suffer 
a myocardial infarction, or a heart attack. You want to take them to 
the emergency room because today, as cardiac surgeons, cardiologists, 
heart specialists--and it is very different today than 30 or 40 years 
ago--there are medicines you can give and procedures you can do that 
can open up the blood supply when you have a heart attack and get blood 
to the heart before the millions of cells die. Every moment counts. It 
is important to get that blood supply opened by heart specialists.
  Unfortunately, our broken litigation system is stretching those 
moments--if those specialists are not available to respond--into hours. 
It is stretching them longer and longer, and that causes death of that 
heart muscle.
  Of course, patients and most people listening today expect, if they 
have an emergency and are going to be rushed to the emergency room, 
that there will be people to treat them, including heart specialists 
who can rush down and open the blood vessels; or if they have a brain 
injury or a concussion or a contusion to the head, they expect there 
will be somebody there to respond appropriately.
  However, that assumption is getting to be less and less true, due in 
large part to our broken medical malpractice litigation system. Because 
of runaway medical malpractice costs, many medical specialists have 
been forced to stop treating patients in the emergency room--the 
neurosurgeons; the orthopedics, or bone surgeons; the heart and lung 
surgeons; the obstetricians; the cardiologists; and the list goes on in 
terms of specialists we have to respond in the emergency room. They are 
simply saying: I will practice my specialty, but I am not going to do 
it in the emergency setting. I will not sign up for what we call ``on-
call'' for the emergency room or for the trauma team because if I do, 
my own insurance premiums will skyrocket, or I cannot get the insurance 
at all. So fewer and fewer specialists are volunteering for this ``on-
call'' in emergency rooms.
  Because of the high-risk operations they are called upon to perform 
in these emergency situations, neurosurgeons, the specialty of the 
brain and spine, have been particularly hit hard by the litigation 
process. According to the American Association of Neurological Surgeons 
and the Congress of Neurological Surgeons, between the years 2000 and 
2004, that 4-year period, the national average, of medical liability 
premiums for neurosurgeons increased 100 percent. It literally 
practically doubled, from $45,915 up to $91,848.
  As I mentioned a few minutes ago, in some States, neurosurgeons are 
now paying insurance premiums of almost $400,000 per year. That is not 
the cost of doing the medicine or delivering the care or of the 
practice or being in the operating room or paying the nurses to help 
you or the cost of the equipment or the cost of the drugs or the cost 
of your training; that is just a tax of $400,000 placed on top of all 
those expenses that the physicians pay to have

[[Page S3748]]

the opportunity to treat you if you come into the emergency room. It 
doesn't make sense.
  It is a crisis. It is getting worse. It should be no surprise that 
this medical malpractice liability crisis is having a negative effect 
on the way these much needed specialists practice medicine. In fact, a 
recent survey--a fascinating survey--showed that 70 percent of 
neurosurgeons responding said they have had to make at least one of 
five practice changes. So if 100 responded, 70 said they have had to do 
one of these following things to narrow down or change their practice 
in response to the medical malpractice crisis: referred complex cases, 
closed their practice, moved to a different state, stopped providing 
patient care or retired.

  Runaway lawsuits are forcing neurosurgeons and other specialists to 
limit emergency services. Again, it is not the doctor who is being 
hurt, it is the patients who are being hurt, and it is future patients, 
and that means potentially everybody listening to me now.
  Many patients are rushed to these trauma centers. When I was on call 
at Vanderbilt Trauma Center as a thoracic surgeon, we had somebody 
actually in the hospital, or very close to the hospital, practically 
all the time. For heart disease, heart attacks, you need somebody there 
almost all the time. Why is that? Because you have a golden hour, 
especially for spinal disease and heart disease. Every second that goes 
by that you have the blood supply cut off, especially when you can open 
that blood supply up, the patient is being hurt.
  Unfortunately, patients are having to endure longer and longer waits 
as these precious lifesaving minutes tick by. If you have a broken 
bone, a gunshot wound, frequently you might be diverted from one 
facility to another because of the lack of availability of a specialist 
or the resources in one of the hospitals. Then you have this frantic 
search of finding a needed specialist for that broken bone, or that 
gunshot wound to the heart, or that stab wound.
  According to a recent study--because people say that could not be 
what is happening today, but it is what is happening--76 percent of 
emergency departments recently have diverted patients to another 
facility because of a lack of specialty physician coverage. Of these, 
over 33 percent diverted patients 6 or more times a month, and an 
additional 28 percent have diverted patients to other facilities 3 to 5 
times a month. Over a quarter of hospitals report that the reason they 
have lost specialty coverage is because of medical liability concerns. 
These concerns simply discourage specialists from offering their 
services or volunteering their services for this on-call emergency 
coverage.
  The medical litigation crisis is affecting health care, patient care, 
all across the country. The consequences are obvious--the consequences 
of death. Here is an example. According to the Palm Beach Post, a 
Florida woman, Mildred McRoy, suffered a hemorrhagic stroke in 
February. That is where you actually bleed into the brain itself, and 
because the skull is a fixed cavity, when you bleed into the brain, it 
swells and it requires an emergency response. She was rushed to JFK 
Medical Center in Atlantis for treatment, but JFK stopped providing 
around-the-clock neurosurgical coverage in July because of the medical 
liability crisis. In fact, there wasn't a single neurosurgeon on call 
in all of Palm Beach County when this occurred. Again, that shows how 
pervasive the impact is if you don't have specialists signing up 
because of high medical liability premiums. Ms. McRoy was then 
transported 40 miles away to North Broward Medical Center. More than 8 
hours later she was operated on by a neurosurgeon but died after being 
in a coma for several days.
  That is the story. That is why we must act. We know there is a 
problem, a crisis, and we know the crisis is getting worse. We know it 
is going to take action on this floor to reverse it. Florida is one of 
the 19 States the AMA considers in crisis.
  In a few cases, trauma centers and emergency rooms have been actually 
forced to shut down--as we saw on the chart that was behind me a while 
ago, which the Senator from New Hampshire had shown--because either the 
emergency department physicians or the on-call specialists could not 
obtain medical liability insurance at any price whatsoever. The most 
infamous example occurred in the summer of 2002 when Las Vegas lost its 
only level I trauma center. When I use that term, level I, that is the 
highest level. They can take anything that comes. Level I is the most 
sophisticated, most prepared, most responsive level of trauma center 
that we have. Las Vegas lost their level I trauma center which, by the 
way, was one of the 10 most busiest in the country for several days, 
forcing residents from that major city of Las Vegas to travel over 100 
miles to seek urgent care.

  For me as a physician who has gone through 4 years of medical school 
and 8 years of medical training, what is sad and tragic is we are not 
getting rid of a few bad doctors. Right now we have highly qualified, 
highly committed physicians, women and men, who have chosen to dedicate 
their lives to helping their fellow man--really mankind, humanity 
broadly--through neurosurgery or obstetrics or heart surgery, and we 
are literally forcing them to leave the field they cherish, that they 
spent years working to become so they can help other people. These are 
people who are devoting their professional lives to healing others, and 
we are saying because of this medical litigation system, which is out 
of control: You are no longer going to be able to do that.
  They do not want to drop these specialized services. They do not want 
to make themselves unavailable for emergency care. Indeed, that is why 
they got into the business. Tragically, and all too often, the medical 
litigation system, with these skyrocketing, out-of-control costs simply 
leaves them no choice. In the end, our health care system suffers, but 
it is the patients who really suffer.
  The story is the same for obstetricians. Right now we know women are 
having a harder time finding an obstetrician. As I said earlier, one 
might have two or three obstetricians over one pregnancy period today 
because obstetricians are having to move. A few weeks ago, we brought 
the Healthy Mothers and Healthy Babies Access to Care Act to the floor 
of the Senate. That bill specifically addressed the medical liability 
challenges we have focusing on OB/GYNs and women and the babies they 
serve. We did that because all across the country, indeed in my home 
State of Tennessee, the current medical litigation system is forcing 
many OB/GYNs to simply stop delivering babies.
  Floor discussions at that time several weeks ago demonstrated the 
crisis. It showed the extent of the crisis. There is no reason at this 
juncture to restate all of the arguments, but the doctor drain has 
gotten so bad that it is clear that women are having a harder time 
finding doctors to give them prenatal care and to deliver their babies.
  What happened several weeks ago? Unfortunately, opponents to this 
needed medical liability reform filibustered the mere consideration of 
the bill on the floor of the Senate. We simply cannot allow people to 
keep their heads in the sand any longer. The crisis is real. It is time 
for us to act.
  The crisis is getting worse every day. As a physician and as a 
policymaker, as someone who has had the opportunity, a real blessing, 
to take care of patients in the setting of trauma, the emergency room, 
and responding to their needs, I am simply not, as majority leader, 
going to sit back and allow this crisis to continue to explode.
  The legislation itself we are considering, the Pregnancy and Trauma 
Care Access Protection Act, addresses these two areas--delivering 
babies and responding to emergency care. Why? Because these areas have 
been hit the hardest. It is common sense in medical litigation reform 
that will protect our patients, our families from medical negligence 
with fair compensation. If somebody has been negligently injured, they 
deserve just and fair compensation. If there are bad doctors, they need 
to be punished accordingly.
  The problem is the overall system is broken. The overall system has 
these frivolous lawsuits with these runaway costs. The legislation is 
based on sound models that have worked in States, that have a 
demonstrated track record, such as California. It is supported by 
numerous medical specialty societies and speciality groups. The 
American

[[Page S3749]]

College of Obstetricians and Gynecologists, the American Association of 
Neurological Surgeons, the American Academy of Orthopedic Surgeons all 
support this legislation and, of course, the list goes on.

  I hope opponents of reform do not make excuses. They seem to put the 
blame of the crisis everywhere except where it belongs--our medical 
litigation system. It is time to face that simple fact that we need to 
reform our medical litigation system. It is in desperate need of 
reform. It is hurting all patients. It is hurting our vulnerable 
patients the most.
  In addition, I should add that all of this has a huge, unnecessary 
cost in the practice of defensive medicine, the reaction of our medical 
system to frivolous lawsuits. These are your health care dollars that 
are being wasted. These are your health care dollars that are taken 
from you and not being channeled back into better health care for you.
  Congress should act now. I am very hopeful we will be allowed to act 
now by putting patients first rather than the special interests who 
have been so vocal in obstructing this bill.
  For the sake of all Americans who will be forced to go to the 
emergency room this year and for the sake of all expectant mothers, I 
ask my colleagues to allow this debate to move forward tomorrow by 
voting to proceed to this critical medical litigation reform bill.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the following 
Senators be added as cosponsors of S. 2207, the Pregnancy and Trauma 
Care Access Protection Act: Senator Fitzgerald, Senator Cornyn, and 
Senator Hatch.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. I thank the Chair.
  I wish to express my gratitude to the majority leader for his 
important comments. He brings an expertise to this debate no one else 
in this body can offer by virtue of his training, education, and 
extensive practice as a medical doctor in Tennessee. I am not going to 
speak from the perspective of a doctor because I am not one. I am going 
to speak from the perspective of a patient because, like it or not, I 
will be one at some point in my life, and from the standpoint of other 
prospective patients which would include not only my family and loved 
ones, but literally everyone within the sound of my voice.
  I want to express again my appreciation that the majority leader 
would bring this issue back up. This is our third attempt in recent 
months to enact significant medical liability reform. The reason why it 
is so important to bring this issue back up is to ask our colleagues 
across the aisle who have obstructed our ability to go to a vote on 
this important issue to reconsider because the truth is their 
obstruction of our ability to get meaningful medical liability reform 
is not hurting doctors only, it is not hurting insurance companies 
only, it is hurting everyone who has been or will be a patient in a 
medical care facility or at the hands of a doctor.
  We have had the opportunity to discuss these issues before, as I 
said, but before I get into what I consider the meat of this issue--and 
that is access to good quality health care for all Americans--let me 
say on other issues that affect American competitiveness in terms of 
our ability to compete in a global economy, the ability of employers to 
provide health insurance for their employees, which is diminishing day 
by day because the costs of health care continue to go up in part 
because of our broken medical liability system, that, in turn, puts 
pressure on the uninsured in our society. Where employers are unable to 
carry medical insurance on their employees, that means that too many 
people who cannot afford health care coverage are forced to emergency 
rooms where they know they can and will be treated. In the vast 
majority of those cases, they could be more efficiently, more humanely, 
and more cost-effectively treated in a primary care setting in a 
doctor's office or in a clinic, but because of the pressures being put 
on our health care system by a broken liability component, it is 
hurting us in so many different ways.

  As I said, I want to talk about access, but it also hurts us in terms 
of our global competitiveness, in terms of job creation and job growth, 
and in terms of diminished access to health care because people have 
nowhere else to turn if they do not have medical insurance, except the 
emergency room where they know they can and will be treated but in a 
way that is insufficient, inhumane, and certainly not cost effective 
and causes a host of other problems in all of our big cities and 
everywhere else where emergency rooms are frequently put on divert 
status because they are so clogged up with cases that probably, in a 
medical sense, should not be there because they could be treated more 
cost effectively and more humanely in another setting, but they are 
there and then the true emergencies are diverted to emergency rooms 
that are farther away.
  The majority leader, Dr. Frist, talked about the medical consequences 
of delayed treatment when people have to travel sometimes many miles 
just to get treated, what complications can occur because of a 
traumatic injury or because a baby that is delivered because the mother 
cannot find a hospital that can take her nearby. My point is, it 
creates a cascading of problems that are not just limited to medical 
liability but which have a lot of ramifications and a huge ripple 
effect.
  Unfortunately, our colleagues on the other side of the aisle are 
offering no solutions but are merely trying to score political points, 
trying to divert the attention to other nonissues and will not allow us 
to do what we have been sent here by the American people to do and that 
is to pass legislation that will meaningfully and significantly improve 
the quality of their lives.
  We have had a chance to deal with this medical liability problem 
before and, unfortunately, we have not done so. My hope is that our 
colleagues will reconsider and we will do so today. If those on the 
other side of the aisle are truly serious about their concern for the 
American people and the quality of health care they receive, I hope 
they will join us in passing the bill we are discussing today.
  The solutions to their professed concerns are right before us. They 
just need to allow an up-or-down vote. I hope the American people are 
paying close attention to what is happening, because if we do not get 
an up-or-down vote it is they who will pay the price for those who 
would prefer to score political points over actually producing results.
  The bill offered by the Senator from New Hampshire, the distinguished 
chairman of the HELP Committee, the Health, Education, Labor, and 
Pensions Committee, is designed to improve access to health care, both 
for women who need obstetrical and gynecological care and for patients 
who need emergency care.
  As I am sure every Member of this body has, I have heard complaints 
from our constituents about how badly the system is broken.
  There are those on the other side of the aisle who would say that, 
because we have been rejected twice before, by bringing it up a third 
time this is somehow just a political exercise. I assure them that is 
not true. We were not allowed to vote before, despite support from a 
bipartisan majority.
  The bottom line is, we are simply unwilling to put up with or to 
accept, without a fight, the kind of obstruction we have seen on this 
and so many other important issues.
  This bill would provide desperately needed relief to a health care 
system that is in crisis, focusing especially on emergency room doctors 
and obstetrics, baby doctors, to critical areas that deserve our 
support.
  This chart has been seen before, and my colleagues will notice that 
this chart reflects in red States that are in crisis because of the 
difficulty of purchasing medical liability insurance, the huge 
increases in cost which have simply caused medical doctors either to 
retire early or to move to States that have provided some commonsense 
reform or just discouraging people from getting into the medical 
profession at all.
  The States in red, including my State of Texas, are indicated as 
States in crisis. The ones in yellow are the States showing problem 
signs but do not yet qualify as a crisis State, and

[[Page S3750]]

the ones in white are States that are currently considered to be OK. I 
would not suggest by saying that they are currently OK that they have 
no problems. It is just that they have not gotten to the point that 
conditions have in my State and other States indicated in red.
  The truth is, this crisis is not something that just popped up this 
week. It is a crisis that we had last fall when we were blocked from 
bringing up comprehensive medical liability reform for an up-or-down 
vote. It was a crisis that existed a month ago when we were blocked 
from having an up-or-down vote for legislation that offered immediate 
help for mothers and their babies, and it remains a crisis today even 
as we attempt to debate this legislation and bring it up for another 
vote.
  The fact is, frivolous lawsuits are causing escalating medical 
malpractice insurance premiums which are driving doctors out of 
practice. We can debate what the cause of that is, but we cannot debate 
the result. It is a fact. Indeed, opponents of this legislation do not 
appear to debate the fact of the result--that is, doctors leaving, 
retiring, not going into practice, access being denied. They just want 
to say there may be other causes, but they do not want to deal with 
this cause because, unfortunately, an important constituency, the 
personal injury trial lawyers, simply are unwilling to agree that any 
change in this current broken system can be made.
  The problem is that those who are preventing us from taking up this 
legislation are simply caving in to the demands of this narrow special 
interest group that are prospering mightily, that are getting rich off 
the current system, at the same time that the rest of America is 
getting hurt.
  This is a picture of a doctor formerly who practiced in Fort Worth, 
TX, representing medical specialists, especially neurosurgeons, 
orthopedic surgeons, obstetricians, and emergency physicians, who are 
being forced to retire early or move their practices to States where 
effective liability reforms are in place.
  For example, Dr. Malone comes from my home State. He is an orthopedic 
surgeon who has practiced more than 20 years in Fort Worth, TX. He 
reluctantly was forced to leave his practice, citing the extreme costs 
of liability insurance for physicians as being too much of a financial 
burden for him to bear.
  We simply cannot expect physicians to practice their chosen 
profession after their lengthy education and training and not be able 
to provide for their families. We don't expect them to do it at a loss 
to themselves and their families. I don't think we can blame them, when 
the costs of doing business exceed what comes in the door such that 
they simply have no choice but to leave.

  In the State of Texas, this crisis, particularly as it regards baby 
doctors, obstetrician-gynecologists, means that out of 254 counties of 
Texas, 154 of them have no OB/GYN specialist. In other words, a woman 
who is pregnant and perhaps needs prenatal care, so increasing the 
chances her baby will be delivered healthy, must travel to another 
county in order to get that prenatal care from a specialist; or once 
she goes into labor, she must travel to another county to have the 
doctor, medical specialist in obstetrics, deliver that baby. This means 
almost 6 out of the 10 counties in my home State alone have no doctor 
specializing in obstetrics, representing approximately 2 million Texans 
in my State.
  Let me talk about another story, another case that is worth referring 
to also in my State. Just last year a pregnant woman showed up at Dr. 
Lloyd Van Winkle's Castroville office in south Texas. She showed up in 
Dr. Van Winkle's Castroville office less than 10 minutes from delivery 
of her baby. Her family doctor in Uvalde, another Texas town, had 
recently stopped delivering babies altogether, citing medical liability 
concerns, and this pregnant woman was trying to drive the 80 miles to 
her San Antonio doctor from her home in Uvalde.
  Let me give another story about a woman by the name of Denise Payne. 
Denise Payne walked into an emergency room recently. The doctors there 
did not want to treat her. She said, ``They didn't want to touch me 
because I was pregnant,'' this 38-year-old pregnant woman, who was 6 
weeks along in her pregnancy at that time.
  Luckily for Denise Payne the delay getting treatment didn't kill her. 
Although she couldn't get a kidney biopsy in Corpus Christi on the gulf 
coast of Texas, she was able to get one about 150 miles away in San 
Antonio, but she doesn't blame the doctors. ``I would say it's because 
of all the lawyers scaring the doctors,'' she said. ``They are scared 
to death to treat you.''
  Indeed, that reminds me of other situations where I have heard 
doctors, concerned about their patients, but saying because of the 
broken liability system, every time you walk into an examining room, 
every time you walk into the emergency room, every time you walk into 
the delivery room, you are putting at risk everything that you have 
worked a lifetime to build for yourself and your family. Physicians and 
others are simply not able to put up with it, resulting in a crisis 
that even Ms. Payne, who no doubt was frustrated by her inability to 
get doctors to treat her in Corpus Christi, had to drive 150 miles away 
to get treated because she was pregnant and she needed a kidney biopsy. 
But because she was a higher risk patient who is at a higher risk of 
medical complications but also a higher risk of litigation, the doctors 
were scared to death to treat her, so she had to travel a long way to 
get that treatment.
  These stories are not unique to Texas. Let me tell you about Linda 
Sallard of Arizona. At 2 a.m. on the morning of March 20, 2002, 22-
year-old Melinda Sallard woke up with labor pains. She and her husband 
hopped into their car and started driving the 45 miles to Sierra Vista, 
which housed the only hospital within a 6000-square-mile area with 
obstetricians able to deliver babies. En route, they passed the Copper 
Queen Community Hospital, which was forced to close its maternity unit 
just 2 months earlier because all the practitioners able to deliver 
babies had lost their medical liability coverage.
  Just 3 miles past Copper Queen, which is where they had a hospital 
that could have delivered her baby but had since closed its delivery 
facilities because of medical liability concerns, just 3 miles past 
this hospital, while her husband continued to drive their car, Melinda 
delivered her own baby girl, who you can see here in this picture in 
her lap. She gave birth on a desert highway to her daughter, Susanna. 
While Susanna, as you can tell from this picture, looks healthy and 
thriving today, when she was born she was not breathing. So Melinda, 
after she had the baby by herself, unassisted, without a physician--
because she couldn't get to a hospital that had obstetrical services in 
time--Melinda, after she had her baby, cleared the baby's breathing 
passage and started CPR. Fortunately, the baby started breathing and 
Melinda wrapped her newborn in a sweater and held her to her chest as 
her husband drove them all the way to Sierra Vista Hospital, where the 
ER staff cut the umbilical cord in the parking lot.

  As a result of the medical liability crisis, Sierra Vista is now the 
only hospital in a county of 140,000 residents that actually delivers 
babies. All high-risk patients are sent to Tucson, an hour and a half 
away, in a neighboring county. I shudder to think what could have 
happened in Melinda's case. Thankfully, as I said, Susanna Sallard is a 
healthy young girl--no thanks to a medical liability system that almost 
left her as a casualty.
  The skyrocketing liability insurance premiums have also affected 
emergency and trauma services for patients. This is where the severity 
of the crisis becomes even more apparent.
  Let me tell you about Jim Lawson. This is a picture of Jim Lawson, 
Mary Rasar's father. Mary lost her father in 2002 when Nevada's only 
level I trauma center was forced to close because of skyrocketing 
medical liability costs. The majority leader, Dr. Frist, told us 
earlier that level I trauma centers are the ones that handle the most 
serious trauma cases. But Nevada's only level I trauma center was 
forced to close in 2002 because of skyrocketing medical liability 
costs.
  Jim Lawson was injured in a car accident in Las Vegas, where he 
suffered multiple injuries and required immediate care. The State's 
only level I trauma center, the University of Nevada's medical center, 
where Mr.

[[Page S3751]]

Lawson should have been taken, was forced to shut its doors just days 
before this accident because rising liability costs had forced insurers 
to drop coverage on high-risk specialists, high-risk specialists like 
neurosurgeons, like emergency room physicians, and others who handle 
the most seriously injured patients.
  Unfortunately, as I indicated at the outset, this story does not have 
a happy ending. Mr. Lawson was rushed to Desert Springs Hospital, where 
he died while awaiting air transport to the next nearest level I trauma 
center facility, more than an hour away, at Salt Lake City, UT. So this 
gentleman, who was in a car accident in Las Vegas, who could have been 
treated at the University of Nevada's medical center but for the fact 
it had to shut down because it lost its medical liability coverage, 
died because the only facility that could treat him was more than an 
hour away in Salt Lake City.
  Let me tell you about Leanne and Tony Dyess. Leanne is a 48-year-old 
wife and mother of two from Mississippi. This is Leanne and her family. 
On July 5, 2002, Leanne's husband Tony was involved in a car accident 
in Gulf Port, MS, and suffered serious head injuries. After removing 
him from the car, paramedics rushed Tony to Garden Park Hospital in 
Gulfport, MS. But there were no neurosurgeons there available to treat 
Tony because rising medical liability costs forced doctors in that 
community to abandon their practice. Six critical hours passed before 
Tony could be airlifted to University Medical Center. As a result of 
the inability to locate a specialist to provide him immediate care, 
today Tony is permanently brain damaged, mentally incompetent, and 
unable to care for himself or his children.

  In addition to this tragedy and the others I have mentioned, there 
are numerous other examples from my home State of Texas of tragedies, 
or near tragedies, or worse than injuries as a result of the inability 
to get medical care close by because of this crisis.
  Another couple of stories: George Kuempe, who recently retired as a 
reporter for the Dallas Morning News not too long ago, fell from an oak 
tree and broke his back on a Sunday afternoon in the Austin area. He 
had to be flown to Scott & White Clinic in Temple, TX, because there 
were no neurosurgeons available in Austin, TX. There was a long delay 
in the amount of time necessary to treat his injuries in order to 
travel just 60 miles up the road. There were hours of delay. Dr. Path 
Crocker, chief of emergency medicine at Brackenridge Hospital in 
Austin, where he could have been and should have been treated had a 
neurosurgeon been available, said this is a warning flag to the 
citizens of Texas that a major problem is brewing.
  In 2002, an elderly man was taken to an emergency hospital room in 
McAllen, TX, in south Texas in the Rio Grand Valley after falling and 
injuring his head. After 7 hours, the emergency room could still not 
locate a neurosurgeon to treat this elderly man's head injury, even 
though they searched in Corpus Christi, in San Antonio, and Austin. 
Unfortunately, this elderly man, with a head injury, died because he 
could not get timely medical treatment for that condition.
  There are even more stories that illustrate the lengths to which 
patients must go just to receive desperately needed care.
  Neurosurgeons in Houston, TX, are bombarded with trauma and emergency 
cases from around the State because doctors have dropped emergency 
services in efforts to lower their professional liability premiums just 
so they can earn a living.
  You can see Houston, TX, located in the southeast part of our State 
where patients, let us say, down in the Rio Grand Valley--this shows 
Harlingen, a distance of 330 miles, which is close to McAllen where 
that elderly man had a head injury and where he would have to be 
airlifted to Houston to receive those treatments by a qualified 
neurosurgeon or other specialist. The time it takes to travel 330 miles 
from the Rio Grand Valley to Houston, the time it takes to travel from 
the Rio Grand Valley to San Antonio, or San Antonio to Houston, or El 
Paso to Houston, obviously, has medical consequences which means people 
who are injured and suffer more serious injuries and people whose lives 
could have been saved lose their lives because of this medical 
liability crisis with which our colleagues on the other side of the 
aisle simply refuse to deal.
  Houston neurosurgeon Bruce Ehni described it like this. He said:

       We are the recipient of much more serious and risky cases 
     that would have otherwise been cared for locally. Here at our 
     hospital in Houston we are receiving hemorrhages, traumas 
     and other dire emergencies from as far away as El Paso on 
     the opposite side of the State, and Brownsville, which is 
     down near Harlingen in the southern part of the State--
     sometimes up to 600 miles or more away.

  Some of the examples include a patient with head trauma and a blown 
pupil flown in from Harlingen to Houston, more than 300 miles away; an 
intracranial hemorrhage flown in from Laredo on the United States-
Mexico border 300 miles away; and a brain tumor causing an abrupt 
paralysis flown in from San Antonio, 200 miles away.
  Dr. Ehni continued:

       All of these communities have neurosurgeons. The ``bad'' 
     cases end up in Houston despite the presence of neurosurgeons 
     locally because everyone is trying to avoid being sued. It is 
     bad for patients and it is bad for us. We are being dumped on 
     endlessly.

  For the rest of this body, and perhaps others listening, let me put 
all of this in perspective geographically. For a medical transfer from 
El Paso to Houston, it would be as if a patient was hurt in Washington, 
DC, and because he could not find a surgeon, he had to be flown farther 
than Chicago, IL, for surgery. For a transfer from Harlingen to 
Houston, it would be like forcing a patient to fly from Washington 
almost to Buffalo, NY. For a transfer from San Antonio to Houston, it 
is as if a patient were forced to fly from Washington to New York City.
  Can anyone in this body state they would be content to have their 
family or loved one suffer those sorts of delays in treatment if they 
really needed a medical specialist and couldn't find one? Of course, 
they wouldn't accept that. Neither should the American people. But that 
is what they are being forced to do because of the inaction and 
obstruction of those on the other side of the aisle who will not allow 
us to have a true debate and an up-or-down vote on this reform to our 
broken medical liability system.
  The chief obstacle to making our health care system the best in the 
world is our liability lottery. In the liability lottery, people aren't 
free to act because doctors simply can't meet the demand, and Americans 
end up paying more for health care and suffering medical complications 
because of it.
  It is not all bad news, I must say. I am glad to say, in response to 
many of the concerns which I have raised that pertain to my State of 
Texas, the legislature and the people of my State have acted. Last 
September voters took to the ballot and passed Proposition 12, an 
amendment to the Texas Constitution providing caps on noneconomic 
damages and paving the way for the full implementation of important 
medical liability reform.
  We already have, even though this passed just last September, some of 
the early signs of beneficial results. One medical liability insurance 
carrier has reduced their medical liability premiums by 12 percent, and 
another medical liability insurance company has canceled their planned 
19-percent rate increase because of these reforms.
  My home State of Texas recognizes the need for government to step in 
and help address this urgent problem. But more needs to be done, and 
there is still too little recourse for patients in States without 
reform.
  Let me mention briefly some of those States. In Illinois, more than 
15 percent of the neurosurgeons have left the State in the last 2 
years. That is according to the American Association of Neurological 
Surgeons. There are currently no hospitals in the northwest suburbs of 
Chicago that have 24/7 neurosurgery coverage. Most patients in need of 
care are transferred either to Rockford, which is 60 miles away, or to 
the University of Illinois in Chicago, 45 miles away--not quite the 
distances we talked about in my State but still nevertheless 
consequential distances in terms of the delay in treatment of serious 
cases.
  In the State of Massachusetts, the home State of Senator Kennedy and 
Senator Kerry, a third of the State's hospital beds have closed in the 
past

[[Page S3752]]

decade, and 32 percent of physicians say they plan to leave the State 
if the practice environment fails to improve. In the 1990s in 
Massachusetts the number of practicing obstetrician/gynecologists 
declined by more than 20 percent. In New York, record numbers of people 
seeking emergency care are overwhelming emergency departments across 
the State in areas including Long Island, Syracuse, Rochester, and 
Buffalo. Many doctors and higher risk specialties are eliminating 
services, retiring early, or contemplating leaving. The exodus of 4,000 
doctors in New York alone from 2000 to 2002 has been attributed to a 
litigious atmosphere in that State.
  In North Carolina, in 2002 alone, medical liability rates increased 
by 50 percent and high-risk specialists are facing increases between 50 
percent and 100 percent. Physicians are simply going out of business, 
leaving a State, or substantially increasing prices as they pass along 
costs, as they can, to their patients. But the problem is especially 
acute for obstetricians, neurosurgeons, and emergency physicians.
  Finally, the last State I will mention is the State of Washington. 
Since 1998, Washington State has seen a 31-percent increase in its 
physicians moving out of the State, and between 1996 and 2001 the 
number of retirements increased 50 percent with the average age of 
those retirees dropping from age 63 to age 58.
  We know this liability reform can have a beneficial impact on 
reducing costs and improving access because some States have done it 
for a while. My State has done it since September and has not yet seen 
the full benefit although we have seen some very hopeful early signs. 
California has adopted something called MICRA, which has been the 
medical liability tort reform package. With MICRA, California has 
achieved a more stable marketplace and lower premium increases over the 
years than have other States without the kind of medical liability 
reform we are advocating today. According to the data, California 
medical liability premiums grew 167 percent over the past 25 years 
compared to 505 percent for States without medical liability reform.
  I have taken more time than perhaps I should, but I thought it was 
important to go over in detail what the problem is, what we think the 
solution may be, at least in part, and demonstrate for our colleagues 
on the other side of the aisle, if they would allow an up-or-down vote 
on this legislation, we could see some very real, substantial benefits, 
not just to physicians.
  I like physicians. I respect physicians. But this is not something we 
ought to do to help members of the medical profession. The reason we 
ought to do it is to help patients. Like it or not, all of us will be 
patients at some future point in our lives. The best way we can ensure 
the good quality health care is available for us and our loved ones, 
should we need it in the future, is to pass this meaningful reform.
  I ask our colleagues to seriously reconsider and not to obstruct this 
important reform. We know it can help. If they have other ideas they 
think will add to the substantial beneficial effect of this 
legislation, let them come to the floor and talk about it. We will be 
willing to talk to them and engage them on it. If a consensus develops 
that an even better package can be produced as a result of the kind of 
debate and negotiations and compromise that characterize this body and 
which this body is so good at when it works properly, I say, bring it 
on.
  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. ENZI. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore (Mr. Cornyn). Without objection, it 
is so ordered.
  Mr. ENZI. Mr. President, I rise to speak about the Nation's medical 
litigation crisis. I begin by explaining where we are in this process. 
It is the right of the majority leader to bring a bill up for debate. 
On the Senate side, it requires unanimous consent to have that debate. 
We have been denied unanimous consent to debate the medical litigation 
solution.
  What are the options? We can have a cloture vote. We will have that 
tomorrow afternoon. The cloture vote requires 60 votes of approval in 
order to debate the medical litigation crisis solution. On most of the 
bills we see brought up, the unanimous consent is almost automatic. 
However, on this particular bill, we are not even able to debate the 
bill. We can debate it, but it has no effect. There can be no 
amendments. There can be no votes until the filibuster is broken.
  What happens when the filibuster is broken? Technically there can be 
30 hours of debate on that particular right to debate before the actual 
debate begins. Then when we actually do get to the debate, every single 
amendment can be filibustered and the bill can be filibustered. 
Supposing we make it past those roadblocks and the House passes the 
bill and there are differences between the two, there has to be a 
conference committee. At that point, there can be three more 
filibusters.
  Our Founding Fathers intended for the Senate to be the cooling saucer 
for legislation. I don't think they intended it to become a stagnant 
pond. I do think they intended the bills would be debated and 
conclusions reached, there would be some time taken, but not all time 
taken.
  We have a medical litigation crisis in this country. The system is 
broken. 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. We should not be having this 
filibuster on whether to debate. We need to pass the motion to proceed 
and get into amendments on the bill if amendments are needed.
  This is the third time in this Congress we have brought a medical 
litigation reform bill to the Senate. We need to pass this legislation. 
We need to pass some legislation that deals with this crisis. Passing 
this bill would be the best thing we can do to stabilize medical 
liability premiums in the short term, which will allow us to retain 
doctors in states like Wyoming, which will allow people to have access 
to doctors.
  I proposed legislation aimed at solving this problem over the long 
term and I will speak to that later. But right now, we need to vote in 
favor of ending this filibuster against this bill so we can begin to 
debate the bill. I am willing to consider any amendments my colleagues 
in the minority might have, but we cannot consider any of their 
amendments until they agree to end this filibuster and begin debate on 
the bill.
  I understand some Senators are concerned this bill would limit the 
ability of an injured patient to get fair compensation. This bill would 
do no such thing. This bill will not limit the ability of an injured 
patient to get fair compensation. This bill would permit full and fair 
compensation to patients for their 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 still be entitled, under this 
bill, to receive full compensation for their economic loss, including 
everything from rehabilitation to lost wages resulting from their 
injury.
  I cannot stress this point strongly enough. This bill would not limit 
awards for economic losses. What the bill would do is place a ceiling 
on noneconomic damages. The bill would limit the maximum award for 
noneconomic damages to $250,000 in States that do not have their own 
limits on such awards. Noneconomic damages are those for pain and 
suffering.
  I want to ask, How much pain and suffering do you have if you cannot 
even see a doctor? And if you cannot see a doctor, and you die, who do 
you sue? The trial lawyers? Maybe so. They are a part of the problem. I 
am not going to try to cover all of the parts of the problem. We are 
trying to fix one specific part of the problem. This bill will not take 
care of the whole thing.
  But I want to ask you, How much pain and suffering do you have if you 
cannot even see a doctor? This is not primarily a city problem. You can 
have the problem in the city, and doctors are leaving cities as well. 
But in cities it gets glossed over a bit because there are so many 
doctors. There are so many doctors everybody anticipates they can find 
a doctor. Well, there are also more people in cities, so there are

[[Page S3753]]

more people waiting in lines to see the doctors. There is a limit to 
how long you want to wait in line to see a doctor, particularly if you 
are having an emergency.
  This bill only covers two categories; one is emergency medical 
services, and the other is people who deliver babies. So I ask again: 
how long do you want to wait in the emergency room?
  Is this proposal for a limit of $250,000 for noneconomic damages way 
out of line? I do not know. I do know California passed this limit. 
California put a limit of $250,000 on noneconomic damages, and it has 
made a difference. They are one of the few States in the Nation that is 
not having the problem.
  Now, California, viewed by Wyoming folks, where I am from, is 
considered to be very liberal. So if they did it, this could not be a 
conservative move. If California can have a $250,000 limit, why 
shouldn't other places be able to? You may say: Well, States could pass 
their own. California did. States can. It is a very long procedure for 
some States. Wyoming has very limited legislative time, and then a 
lengthy procedure for having votes of the people before it then comes 
back to the legislature for additional work. So there are limitations 
in the States.
  This can be handled on a national basis. If you hear this bill would 
limit an injured patient to receiving $250,000 in compensation, though, 
you can say that is simply false. There is no other way to put it. That 
contention is false.
  This bill would also only apply, as I mentioned, to obstetrical 
services and emergency medical services. These are two of the areas of 
medicine where patients are in the most danger of losing their access 
to these services.
  Once more, I ask, how many will be harmed by not getting to see a 
doctor? What do you do if you are a woman and you cannot see a doctor 
to deliver your baby? Baby doctors are particularly hard hit because 
the child can sue when the child reaches age, so the tail on their 
insurance is extremely long, and that provides additional opportunities 
to sue, which means additional cost for the insurance.

  But we are also talking about the emergency medical services. In an 
emergency, as Senator Frist, the doctor of the Senate, pointed out, 
every single moment counts. There is, at most, a ``golden hour'' in 
emergency treatment. So if you have to spend that golden hour traveling 
750 miles--as the Senator from Texas showed on his chart of Texas 
showing how far some people have to travel for specialized care--it 
could be too late.
  Physicians are being hit with six-figure annual premiums in the 
medical specialties of obstetrics and trauma care. As a result, they 
are curtailing their practices, retiring early, or moving to States 
with better legal environments, because a better legal environment 
means lower insurance premiums.
  In Wyoming, we have one of those bad legal environments. We do not 
have limits on noneconomic damage awards. We do not have limits, 
despite evidence that shows reasonable limits on noneconomic damage 
awards have helped control the rising 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.
  I want my colleagues to know we have a full-fledged medical liability 
crisis on our hands in this country, and particularly in Wyoming. Just 
last month, the largest of the three insurers in Wyoming announced they 
would be leaving the Wyoming market later this year. As a result, 381 
doctors and 7 hospitals are going to have to find new insurance 
coverage. Of the two companies that are left, one of them is not 
writing new policies for emergency and trauma care physicians. So the 
few emergency room specialists we have in Wyoming soon will have only 
one company to choose from for their professional insurance.
  These insurance company executives are not dumb people. Just as 
doctors are moving to States with better legal environments, so are the 
insurance companies.
  As I mentioned, some have left Wyoming. People say, well, yes, there 
go those rich insurance companies. They are going to move somewhere 
else where they can make a lot more money. Did you know some of them 
are going broke? If the profit is all that prolific, why are some going 
broke?
  One of the doctors in Wyoming was doing his calculation about whether 
to stay in business or not, whether to deliver babies anymore or not. 
He ran a calculation based on the rise in insurance premium costs he 
had, despite that he has not been sued at all. He found out $25 of each 
doctor visit goes to pay the insurance. If you are paying $100 for a 
doctor visit, $25 of that is going to pay for the insurance. The other 
$75 is not all profit either. It has to go to pay for the nurses, the 
supplies, the building--all of those things. But $25 of each visit goes 
to insurance.
  I do not care which insurance companies are writing policies in my 
State, as long as there are some. But I do care when good doctors leave 
the State. Wyoming is a big State with a lot of small communities. In 
fact, people out here in the East cannot even comprehend the small 
communities we have. If you grew up in a small town, you probably got 
to know your family doctor pretty well. Doctors are part of the fabric 
of life in the small towns that dot the map of my State. It is not easy 
for them to pick up and leave, but that is what is happening. As hard 
as it is for the doctors to leave, it is even harder on the families 
they serve--the families who have grown comfortable with the care these 
doctors provide.
  I commend Senators Gregg and Ensign and our majority leader, Dr. 
Frist, for trying again to pass a sensible short-term solution to this 
Nation's crisis. They have developed a bill that is focused on 
providing relief to the doctors who serve mothers and their babies, and 
the doctors who save lives in our Nation's emergency rooms.
  Every day, thousands of patients depend on these doctors when it 
comes time to bring a new life into the world or to save a life that is 
already here.
  I hope we can all agree to support this short-term solution that will 
maintain access to the services these doctors provide.
  I have noticed something interesting during the debate on the issue 
of medical liability reform. While we have been debating the pros and 
cons of reform, no one is standing up to defend our current system of 
medical litigation. I have yet to hear a rousing defense of our medical 
litigation system. Even some of the lawyers in this body have agreed 
that frivolous lawsuits are a problem and that our medical liability 
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 does not work for patients, 
nor does it work for their doctors.
  The bill we are debating today is a good bill. It will help us 
stabilize insurance premiums and preserve access to critical medical 
services. 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.
  It reminds me of the town that lived on the edge of a cliff. The town 
had a tremendous problem because kids fell off of this cliff, and the 
fall killed a lot of them. They decided they needed to do something 
about it. After extensive meetings and committee work, they purchased 
the finest ambulance that could be found, and they put that ambulance 
at the base of the cliff. They hired the best EMTs they could get so 
the person could be loaded on to the ambulance and served while they 
got to the nearest hospital. Somebody then suggested: Why don't you 
just put a fence on the cliff. And they said: No, we don't do fences.
  That is what we are doing with this medical litigation crisis. We are 
avoiding putting up the fence for the short-term solution and we are 
letting people fall off the cliff; then we are trying to provide them 
with the best possible service we can after they fall. What are we 
going to do when they use this fine ambulance and these great EMTs and 
they get to the hospital and there is no emergency room doctor? We need 
the fence and the emergency room doctors

[[Page S3754]]

too. This bill is designed to make sure there is medical liability 
insurance so the doctors can continue to operate.
  We like to say that justice is blind. With respect to our medical 
litigation system, I would say that justice is absent and nowhere to be 
found.
  Every Member of this body wants to make sure that someone who is 
truly injured by a medical error gets the compensation they deserve. 
But a number of studies have shown that many patients who were hurt by 
negligent actions received no compensation at all for their losses.
  I have also seen studies that suggest that those who receive 
compensation end up with about 40 cents on every dollar in insurance 
premiums, once the lawyers' fees and their courtroom costs are 
subtracted. So the victim gets 40 cents on the dollar. Somebody else is 
getting the other 60 cents. I don't think that sounds fair.
  What is more, studies have demonstrated the likelihood of a doctor or 
hospital being sued, and the result of such a suit, bears little 
relation to whether the doctor or hospital was at fault.
  These facts led the congressionally chartered Institute of Medicine 
to issue a report in 2002. That report called upon Congress to create 
demonstration projects to encourage States to evaluate alternatives to 
current medical tort litigation.
  In response, I have introduced a bill that would turn these expert 
recommendations into action. My 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. My bill would require participating States and 
the Federal Government to work together in evaluating the results of 
the alternatives as compared to the traditional tort litigation. This 
way all States and the Federal Government could learn from new 
approaches. We could see if there is not a way to get people fairly and 
justly compensated, compensated more quickly, and to actually receive 
the majority of the money, not just a small pittance.

  The bill outlines some model approaches States could employ. For 
instance, one State might want to evaluate the idea of health care 
courts where judges with special expertise could hear medical cases. 
This concept is similar to the special courts we have for taxes, 
domestic violence, drugs, and other complex and emotional issues. That 
way we would get some fairness between cases. One person with the same 
kind of hurt would get compensated the same way, approximately, that 
somebody else with that same hurt had, not based on who picked the best 
lawyer or who picked the best injury--with fairness, quickness, and the 
victim receiving the money.
  Another State might want to test an administrative approach. For 
instance, a State could set up classes of avoidable injuries and a 
schedule of compensation for them and then establish an administrative 
board to resolve claims related to those injuries. A scientific process 
of identifying preventable injuries and setting appropriate 
compensation for them might offer better results than the randomness of 
the court system.
  Another State might want to provide health care providers and 
organizations with immunity from lawsuits if they make a timely offer 
to compensate an injured patient for his or her losses. This could give 
a health care provider who makes an honest mistake the chance to make 
amends financially with a patient without the provider fearing that 
their honesty would land them in a lawsuit.
  The point of my bill is there are plenty of ideas for better ways to 
resolve medical disputes. One of the best ways Congress can help fix 
the flawed litigation system in the long term is by encouraging States 
to test alternatives and to learn from them.
  As I speak, some States are already looking into alternatives. My 
State of Wyoming is one of them. Another is Massachusetts, where the 
Governor is working with Harvard University on an innovative project. 
Another is Florida, where the Governor's task force recommended 
projects for which my bill could provide support.
  Believe it or not, both Newt Gingrich and the editors of the New York 
Times have endorsed this idea. If Newt Gingrich and the New York Times 
can agree on something, maybe we can find enough support for it in this 
Chamber as well.
  I want to remind my colleagues that I support the Gregg-Ensign bill. 
It will provide some short-term relief for this medical liability 
crisis. We don't have time just for testing at the moment. We are 
losing the doctors who provide emergency care and the doctors who 
deliver babies. In my own State, several of the doctors have quit 
delivering babies because they can't afford the insurance. Others have 
had to cut back on the number of babies they deliver to be able to 
afford the insurance. That means ladies having babies are not able to 
get doctors with the necessary expertise.
  We need short-term relief from the medical liability crisis, and I 
know many of my colleagues will join me in voting for it. But I know 
that some will vote against it. Regardless of whether you feel this is 
the right solution for the short term, let's acknowledge that our 
medical litigation system is failing us and that we must work together 
to find a long-term solution.
  Medical lawsuits are supposed to compensate people fairly and deter 
future errors, but most patients don't get fair and timely 
compensation. There is nothing to show that lawsuits are deterring 
medical errors or making patients safer.
  I urge Members to vote for the Gregg-Ensign bill. I also ask that 
Members take a serious look at S. 1518. My basic reason for introducing 
S. 1518 is that most patients don't want to sue their doctors. If their 
doctor made a mistake, they want an apology. They want to be 
compensated for their loss. They want the situation to be resolved 
quickly and fairly. I believe most physicians want the same thing. They 
want to apologize. They want to make amends financially.
  If patients and their doctors want the same thing, what stands in the 
way? Our legal system, that is what.
  Our legal system pits doctors against their patients. Doctors cannot 
apologize to their patients because admitting a mistake might end a 
doctor up in court, and probably would. As a result, doctors order more 
expensive tests and spend less time getting to know their patients--
anything to protect against a career-threatening lawsuit.
  Patients feel this distrust, and they respond in kind. If a patient 
has a bad medical outcome, they assume their doctor was at fault, even 
if there was nothing their doctor would or could have done differently.
  Sometimes bad outcomes happen in health care, and no one is at fault. 
But if a doctor doesn't feel free to say ``I am sorry'' when he or she 
makes a mistake, how will a patient know whether their doctor is at 
fault? It is hard to blame the patient for assuming the worst.
  This is a fundamental flaw in the way we resolve medical disputes 
today. The courtroom stands between the people who matter most--the 
patient and the doctor. The courtroom ought to be the last resort for 
resolving disputes, not the only resort. Patients and doctors ought to 
be on the same side, working together; but fear of the legal system 
puts them in opposite corners and pits them against one another.
  There has to be a better way. My bill would be another step toward 
replacing the medical lawsuits with a better and fairer system for 
compensating and protecting patients. But it is a long-term solution, 
and we do have a short-term solution, the Gregg-Ensign bill. I hope we 
can work together to find the long-term solution, but that we will do 
the short-term solution now.
  Again, our debate now is whether we get to the debate the bill. 
Unless we have cloture tomorrow, we won't actually get to debate the 
short-term solution.
  I want to recap and remind you that this bill doesn't limit economic 
damages. It will assure that we can have emergency care, that doctors 
who deliver babies can continue to deliver babies.
  If you don't get care at all, how much pain and suffering will you 
have? How much injury can be caused if you cannot go to a doctor in 
your community and you have to travel extensively to do it?

[[Page S3755]]

  This bill is a limit on noneconomic damages, similar to the limit in 
California, where the crisis has been averted. I ask my colleagues to 
support cloture on the motion to proceed so we can proceed to pass the 
Gregg-Ensign bill, so we will have a short-term solution to the medical 
liability crisis we face in our country, which keeps us from getting 
the medical treatment we need, when we need it.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Burns). The Senator from Ohio is 
recognized.
  Mr. VOINOVICH. Mr. President, I rise in strong support of S. 2207, 
the Pregnancy and Trauma Care Protection Act of 2004. I strongly 
encourage my colleagues to vote for this very important legislation.
  This is the third time in the 108th Congress that I have come to the 
floor to argue for medical liability reform. It should not be this 
difficult to pass a piece of legislation that will improve access of 
all Americans to timely and efficient medical care, reduce the cost of 
hospitalization insurance and health insurance, and do something about 
the enormous cost of defensive medicine being practiced today by 
physicians throughout the country, which is contributing also to the 
high cost of health insurance premiums.
  I start off today by telling a story of the Schweiterman family in 
Ohio's rural west-central Mercer County. Doctors Jim and Tom 
Schweiterman are brothers who, along with their father, who is retired, 
have delivered about 5,700 babies over the years. The family has a 113-
year history of bringing babies into the world. Their great-grandfather 
started the current medical practice in 1896. They have never been sued 
for a delivery.
  Yet this family is giving up delivering babies because of escalating 
malpractice insurance costs. Their insurance rates rose from $32,000 6 
years ago to this year's quote of $78,000. Dr. Jim Schweiterman stated 
he would continue to deliver babies if he could just break even, but 
unfortunately, because of insurance costs, he cannot. Their last 
delivery will take place this September.
  This is happening all over the United States. This legislation is a 
must. It is important because the effects of medical liability crises 
can be felt most acutely by obstetricians/gynecologists and emergency 
room physicians.
  Data from the American Medical Association indicates that 19 States 
currently face a medical liability ``crisis'' and 25 States show 
``problem signs.'' That is 44 States out of our 50. The doctors in 
these 44 States will either leave the practice of medicine entirely or 
move their practice to a neighboring State with better malpractice 
insurance rates. This phenomenon cries for national legislation.
  One category of patients impacted greatly by this crisis and who we 
are trying to help with this legislation is women of childbearing age. 
One out of every 11 obstetricians nationwide has stopped delivering 
babies and, instead, scaled back their practices to gynecology only. In 
addition, one in six has begun to refuse high-risk cases. Most alarming 
is recent data showing that for a third year in a row, the number of 
obstetrics/gynecology residency training slots filled by U.S. medical 
students declined by 65.1 percent--the lowest level ever. People are 
not going into residencies in OB/GYN and in ER.
  How does this affect a woman's access to care? As premiums increase, 
a woman's access to general care, including regular screenings for 
reproductive cancers, high blood pressure, cholesterol, diabetes, and 
other serious health risks, will decrease.
  With fewer health care providers offering full services, the workload 
has increased significantly for those who still do. Wait time 
increases, putting women at risk.
  Women receive less prenatal care in our current environment. Improved 
access to prenatal care has resulted in low infant mortality rates, an 
advance now threatened as OB/GYNs drop obstetrics. As you may have 
read, for the first time since 1958, the U.S. infant mortality rate is 
up. According to the preliminary data released this month by the 
statisticians for the CDC, the Nation's infant mortality rate in 2002 
was 7 per 1,000 births. That is up from 6.8 in 2001, and some experts 
are attributing that to poor access to quality prenatal care.
  Another group of physicians that has been significantly affected by 
the medical liability crisis, and that we are trying to help out with 
this legislation, is emergency room physicians. When patients rush to 
the ER, they assume the hospital will be open and doctors will be there 
to treat them. However, to secure affordable medical liability 
insurance, or to minimize their risks of lawsuits, many physicians, 
including neurosurgeons, orthopedic surgeons, cardiothoracic surgeons, 
obstetricians, and cardiologists, are no longer able to serve on-call 
to hospital emergency departments. In extreme cases--for example, 
Nevada, Florida, and Pennsylvania--emergency departments and trauma 
centers have been forced to shut down completely because the physicians 
have been unable to secure medical liability insurance at any price. It 
is not available.
  In fact, in the past 10 years, hundreds of emergency departments have 
closed in the United States in such States including Arizona, Florida, 
Maryland, Mississippi, Nevada, Ohio, Pennsylvania, Texas, and West 
Virginia. Over the same period, the number of visits in the Nation's 
emergency departments climbed over 20 percent. While more Americans are 
seeking emergency medical care, emergency departments continue to lose 
staff and resources and are almost at the breaking point.
  In addition, three in four of emergency departments diverted 
ambulances in the last 12 months. I will repeat that. Three of four 
emergency departments diverted ambulances in the last 12 months in part 
because no specialists were available.
  Of these, one-third diverted patients six or more times a month, and 
an additional 28 percent diverted patients three to five times a month.
  This is devastating, especially in light of the volume of patients 
treated by emergency room physicians. Each year there are 110 million 
visits to emergency rooms in the United States. Over 3.5 million ER 
visits are related to bone fractures. Of these, some 885,000 people 
have such severe fractures which can cut off or reduce blood flow to a 
limb or lead to shock. Patients cannot afford delays in treatment which 
can lead to death, amputation of a limb, loss of use of a limb, or 
permanent disability.
  Each year, over 1 million Americans suffer a heart attack. 
Approximately 20 percent of heart attack victims will die. 
Cardiologists and cardiovascular surgeons can perform lifesaving 
treatments and, in some cases, can even reverse heart damage if the 
patients are treated promptly. Stroke patients treated within 90 
minutes of the onset of their symptoms show the most improvements.
  We need this legislation to keep these ERs open and fully staffed and 
to make sure there are no delays in treatment that can result in death 
or permanent injury.
  How does this affect a person's access to care in the emergency room 
or the trauma care center? Today, in many hospitals, there is no 
neurosurgeon available to treat patients with major head trauma or no 
orthopedic surgeon to care for patients with open fractures.
  According to a recent study, over 70 percent of the Nation's 
hospitals, again, were forced to divert patients in the past month. 
That is a startling statistic. According to a recent study, over 70 
percent of this Nation's hospitals were forced to divert patients in 
this past month, in part because of lack of specialists on call.
  Neurosurgeon Thomas Hawk of Columbus stopped providing trauma and 
emergency care in an effort to reduce his liability premiums. He also 
writes to me:

       I see lots of patients each week from West Virginia who 
     cannot find neurosurgical care and are coming all the way to 
     Columbus, OH, to get care.

  This is another problem, the transferring of patients. Because of the 
growing scarcity of oncall specialists, patients now wait longer for 
care in emergency departments. As I mentioned, many are being 
transferred to other facilities. This can be deadly for elderly 
patients experiencing heart attacks or strokes which require immediate 
medical attention.
  In fact, the emergency physicians at Akron's two level I trauma 
centers--Akron is fortunate; they have two

[[Page S3756]]

trauma centers, Akron General Medical and Akron City Hospital--often 
treat patients from other areas of the State, including Youngstown and 
Cleveland. Youngstown is, I think, an hour away, and Cleveland is 45 
minutes away. I do not see how my colleagues can claim we are not in 
the middle of a crisis.
  When I have given speeches in the past, I have given testimonials 
from dozens upon dozens of physicians in Ohio who have been affected by 
this crisis. Every week I see many of them. But this time instead I 
would like to talk about some other States to show that this crisis 
does not just affect my home State of Ohio or States such as Nevada or 
Pennsylvania, but it is widespread throughout the country and should 
cause many of my colleagues from other States to support this 
legislation or explain why they cannot.

  In Illinois, according to the American College of Emergency 
Physicians, fewer inpatient beds and staffing shortages are 
contributing to severe overcrowding and ambulance diversion. A 2003 
report from the Metropolitan Chicago Health Care Council indicated the 
city's hospitals are unprepared to meet the future health care needs of 
their patients. According to the American Association of Neurological 
Surgeons, more than 15 percent of Illinois neurosurgeons have left the 
State in the past 2 years.
  In addition, since January of 2003, 59 doctors have left the St. 
Clair-Madison County area. Just since October 2003, as premium renewals 
are considered at the end of the year, over 10 physicians have left, 
including 3 orthopedic surgeons.
  Also in Illinois, according to a November 2002 survey, 63.5 percent 
of responding Illinois OB/GYNs have been forced to make changes in 
their practice, such as quitting obstetrics, retiring, relocating, 
decreasing gynecologic procedures, and no longer performing major 
surgery. Almost 50 Illinois OBs stopped practicing obstetrics recently, 
forcing 7,776 pregnant Illinois women to find new OB/GYNs to provide 
obstetrics care.
  I don't know how we can take this situation. I have six 
grandchildren, and I cannot think of a worst situation than if one of 
them had a problem pregnancy and were told by their OB/GYN: I am sorry, 
I can't handle it because if I do, my insurance premiums are going to 
skyrocket. And yet in Illinois, 50 stopped practicing.
  An orthopedic surgeon in Oakbrook Terrace, IL, told the story of a 5-
year-old child who was struck by a car and sustained a fracture of the 
femur and small skull fracture with minimal underlying brain contusion. 
He stated:

       Such injuries would typically be treated by . . . an 
     orthopaedic surgeon and then a neurosurgeon. . . . In this 
     case, the neurosurgeon on call would not see any patient 
     under 18. A pediatric orthopaedic surgeon was in attendance . 
     . . but without a neurosurgeon . . . a transfer to Loyola had 
     to be arranged. At Loyola, no pediatric orthopaedic surgeon 
     was available, so the adult orthopaedic trauma surgeon had 
     the child's leg placed in traction, inserting a pin just 
     above the knee in order to hang the weights which pulled on 
     the leg. The plan was to keep the child in traction for a few 
     weeks, and then place the child in a cast. The family, after 
     2 days at Loyola, desired transfer of care back to their home 
     town. The liability crisis has created a situation where this 
     patient had to endure two useless ambulance rides with a 
     broken femur, several extra days of hospitalization, and 
     insertion and removal of a traction pin. This waste of 
     resources and interference with medical care is repeated 
     endlessly across the nation.

  In New Jersey, according to the State Hospital Association, hospital 
liability premiums jumped 50 percent on average in 2003, and the 
average annual hospital premium increased to $1.4 million.
  In addition, a survey of more than 1,000 obstetricians found 23 
percent had left their practices last year because they could not 
afford liability coverage, and only one pediatric surgeon is left in 
each of Ocean and Monmouth Counties, according to the State medical 
society. Some hospitals do not even have obstetricians on call.
  Also in New Jersey, in January of 2002, there were 85 practicing 
neurosurgeons in the State. A little more than a year later, an 
estimated 20 have been forced to stop practicing. Warren County 
residents, including its 200-bed hospital, saw its only two 
neurosurgeons leave in September 2002. The closest neurosurgery center 
is now more than 1 hour away from these residents.
  In North Carolina, the average size of liability claims increased by 
approximately 80 percent over 10 years. Some physicians are going out 
of business, leaving the State or substantially increasing prices as 
they pass on costs to their patients. The Senator from North Carolina, 
who was a Presidential candidate, should be very familiar with those 
statistics. The problem is especially acute for obstetricians, 
neurosurgeons, and emergency physicians.
  In fact, in nine counties in the rural southern region, there has 
been a 3-percent decrease in specialty physicians, despite a nearly 8-
percent increase in population between 1999 and 2002. At the same time, 
specialty physicians in all rural counties have increased only 1 
percent, while the general population in those counties grew by 7 
percent.
  Neurosurgeons have been particularly affected by the medical 
liability crisis and many are stopping or limiting their trauma and 
emergency care in an effort to obtain affordable liability insurance. 
As a result, many hospitals, including Moore Regional Hospital in 
Pinehurst, NC, no longer have 24-hour neurosurgery coverage. Patients 
who suffer injuries during the wrong time are transferred to Chapel 
Hill sometimes after waiting for hours.
  What about Florida? In Florida, liability premiums increased 75 
percent in 2002. The average premium per physician was 55 percent 
higher than the national average. Emergency departments across the 
State are transferring patients to other hospitals because of shortages 
of cardiologists.
  Between 1998 and 2002, 30 professional liability insurers left 
Florida. That is, the insurance companies have just left Florida 
because of the multiplicity of medical lawsuits that have been filed. 
Thirty-four percent of Florida physicians have stopped or reduced their 
emergency care coverage.
  At Orlando Regional Medical Center, where Disney World is located, is 
one of only six level I trauma centers in the State. Think about this. 
This is the State of Florida, one of the fastest growing States in the 
United States. They have six level I trauma centers in the State. For 
those people who travel to Florida, I am sure that one of these days 
they are going to start taking that into consideration about going to 
the State of Florida because of the fact they do not have the trauma 
centers they need to take care of the people who come down from all 
over the country.
  All of the neurosurgeons on staff at the Orlando Regional Medical 
Center, which is one of the six level I, have what they call ``gone 
bare'' and no longer have any professional liability insurance. So what 
has the hospital done to take care of the situation? Listen to this. 
The hospital has resorted to paying the doctors $4,000 per day to cover 
the call schedule and enable them to keep their door open to traumas.
  In addition, Orlando Regional Sand Lake Hospital has had to eliminate 
both of its on-call orthopedics and urology coverage in its emergency 
department due to a lack of physician availability.
  The stories from Florida are particularly egregious, so much so that 
I cannot understand how my colleagues from that State are not 
supportive of this legislation. I cannot figure it out. With what is 
going on in Florida, I cannot understand why the two Senators from that 
State cannot be supportive of this legislation.
  Dr. Richard Foltz from Fort Lauderdale, FL, writes:

       There are no neurosurgeons in Palm Beach to do brain 
     surgeries or take ER call. They try to transfer patients 
     across county lines all the time. I have no insurance and 
     have gone bare. My last premium notice was over $400,000 a 
     year.

  According to neurosurgeon Troy Tippett, there are no longer any 
neurosurgeons in the Pensacola, FL, area who treat pediatric patients 
who are often considered high risk in liability terms. Children 
suffering from head and spinal injuries are airlifted more than 200 
miles away. Think about that, airlifted 200 miles away to get treatment 
they ought to be able to get in their own community.
  A Winter Park OB/GYN dropped his obstetric practice after his 
premiums rose from $48,000 to $100,000. At that rate, he would have to 
work 6 months

[[Page S3757]]

of the year just to pay his liability premiums. Instead he, along with 
four other obstetricians, gave up obstetrics altogether.
  I could go on and on with one story after another about the fact we 
are losing surgeons and we are losing obstetricians all over this 
country. We are just talking about two of the specialties right now. We 
are concentrating on these two right now because we know they are the 
most in need and the shortage is most acute.
  The legislation we are debating today gets us on our way to turning 
these statistics around. It provides a commonsense approach to our 
litigation problems that will keep consumers from bearing the costs of 
costly and unnecessary litigation while making sure those with 
legitimate grievances have recourse through the courts.
  I would like to point out the argument that the insurance industry is 
ripping off doctors--and we hear that all the time on this floor--and 
raising rates to make up for investment losses is preposterous. I would 
again invite those Members who believe this to read the article I 
submitted for the Record during our last debate in February entitled 
``Did Investments Affect Medical Malpractice Premiums,'' where it is 
concluded that asset allocation and investments returns have had 
little, if any, correlation to the development of the current 
malpractice problem.
  I am not going to bore my colleagues today with statistic after 
statistic about what has happened to medical malpractice insurance 
companies in this country, but most of them are out of business. Most 
of them are limiting what they make available to doctors based on the 
type of medicine the doctor practices.
  I would also like to point out testimony given to the Ohio Medical 
Malpractice Commission by a man by the name of James Hurley of the 
American Academy of Actuaries. In his testimony, Mr. Hurley tried to 
debunk a few misconceptions about the insurance industry and medical 
malpractice, one of which is the idea that insurers are increasing 
rates because of investment losses, particularly their losses in the 
stock market.
  In response to this, Mr. Hurley states unequivocally, that in 
establishing rates insurers do not recoup investment losses.
  I ask unanimous consent that a letter of March 26, 2004, from James 
Hurley be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  American Academy


                                                 of Actuaries,

                                                   March 26, 2004.
     Hon. Bill Frist,
     U.S. Senate,
     Washington, DC.
       Dear Senator Frist: On behalf of the American Academy of 
     Actuaries' Medical Malpractice Subcommittee, I appreciate the 
     opportunity to provide an actuarial perspective on the issues 
     related to patient access to health care and, in particular, 
     the availability and pricing of medical malpractice 
     insurance. As Congress considers medical malpractice 
     liability reform (include S. 2207, the Pregnancy and Trauma 
     Care Access Protection Act of 2004), the subcommittee feels 
     it is important to highlight certain misconceptions in the 
     current debate so Congress can more effectively address 
     problems related to the availability and affordability of 
     this insurance.
       Determining Rates.--Ratemaking is the term used to describe 
     the process by which companies determine what premium is 
     indicated for a coverage. In the insurance transaction, the 
     company assumes the financial risk associated with a future, 
     contingent event in exchange for a fixed premium before it 
     knows what the true cost of the event is, if any. The company 
     must estimate those costs, determine a price for it and be 
     willing to assume the risk that the costs may differ, perhaps 
     substantially, from those estimates. A general principle of 
     ratemaking is that the rate charged reflects the expected 
     costs for the coverage to be provided, not what has been paid 
     or is going to be paid on past coverage. It does not reflect 
     money lost on prior investments. In short, a rate is a 
     reflection of future costs.
       In general, the actuarial process used in making these 
     estimations for medical malpractice insurance starts with 
     historical loss experience for the specific coverage and, 
     usually, for a specific jurisdiction. Rates are determined 
     for this coverage, jurisdiction, and a fixed time period. To 
     the appropriately projected loss experience, a company must 
     incorporate consideration of all expenses, the time value of 
     money and an appropriate provision for risk and profit 
     associated with the insurance transaction.
       Some lines of insurance coverage are more predictable than 
     other lines. The unpredictability of coverage reflects its 
     inherent risk characteristics. Most companies would agree 
     that costs and, therefore, rates for automobile physical 
     damage coverage, for example, are more predictable than for 
     medical malpractice insurance because automobile insurance is 
     relatively high frequency/low severity coverage compared to 
     medical malpractice insurance. In the case of auto physical 
     damage, one has a large number of similar claims for 
     relatively small amounts that fall in a fairly narrow 
     range. In medical malpractice insurance one has a small 
     number of claims that have a much higher average value and 
     a significantly wider range of possible outcomes. There 
     also is significantly longer delay for medical malpractice 
     insurance between the occurrence of an event giving rise 
     to a claim, the reporting of the claim, and the final 
     disposition of the claim. This longer delay adds to the 
     uncertainty inherent in projecting the ultimate value of 
     losses, and consequently premiums.
       Rates Don't Recoup Past Investment Losses.-- The ratemaking 
     process is forward looking. In establishing rates, both state 
     insurance laws and actuarial standards of practice prohibit 
     recoupment of past investment losses. Instead of trying to 
     make up for past losses, the general ratemaking practice is 
     to choose an expected prospective investment yield and 
     calculate a discount factor based on historical payout 
     patterns. For medical malpractice, the insurer often expects 
     to have an underwriting loss that will be offset by 
     investment income. Since interest yields drive this process, 
     when interest yields decrease, rates will increase.
       Insurers are restricted in their investment activity due to 
     state insurance regulation and competition in the market. The 
     majority of invested assets are fixed-income instruments. 
     Generally, these are purchased in maturities that are 
     reasonably consistent with the anticipated future payment of 
     claims. Losses from this portion of the invested asset base 
     have been minimal, although the rate of return available has 
     declined.
       Tort Reforms.--Tort reform has been proposed as a solution 
     to higher loss costs and surging rates. Reforms modeled after 
     California's Medical Injury Compensation Reform Act, or 
     MICRA, are proposed to alleviate some of the financial 
     pressure on the medical malpractice insurance system. The 
     Subcommittee, which takes no position for or against tort 
     reforms, observes the following:
       A coordinated package of tort reforms is more likely to 
     achieve savings in malpractice losses and insurance premiums 
     than an individual reform, like a cap on pain and suffering 
     or non economic damages only.
       While a cap on non economic awards could substantially 
     reduce claim losses (on a per-event basis and at some level 
     low enough to have an effect; such as MICRA's $250,000) other 
     tort reform elements, such as a mandatory collateral source 
     offset rule, are also important.
       Such reforms may not assure immediate rate reductions, 
     particularly given the size of some rate increases being 
     implemented currently. The actual effect, including whether 
     the reforms are applied as intended, will not be immediately 
     known.
       These reforms are unlikely to eliminate claim severity (or 
     frequency) changes but they may mitigate them. The economic 
     portion of claims is not affected if a non-economic cap is 
     enacted. Thus, rate increases are still likely to be needed.
       Such reforms should reduce concerns about large dollar 
     awards containing significant subjective non-economic damage 
     components and make the loss environment more predictable.
       Thank you very much for your consideration. Please do not 
     hesitate to contact me or Greg Vass, the Academy's Senior 
     Casualty Policy Analyst, at 202-223-8196 if you have any 
     questions or would like additional information.
           Sincerely,

                                     James Hurley, ACAS, MAAA,

                                                      Chairperson,
                                 Medical Malpractice Subcommittee.

  Mr. VOINOVICH. Throughout my career in public service, health care 
has been one of my top legislative priorities and certainly was a high 
priority while I was Governor of the State of Ohio and mayor of the 
city of Cleveland. All of us want access to quality, affordable health 
care. When the quality is not there, when people die or are truly sick 
due to negligence or other medical error, they should be compensated.
  When healthy plaintiffs file meaningless lawsuits to coerce 
settlements or to shake the money tree to get as much as they can get, 
there is a snowball effect and all of us pay the price. For the system 
to work, we must strike a delicate balance between the rights of 
aggrieved parties to bring lawsuits and the rights of society to be 
protected against frivolous lawsuits and outrageous judgments that are 
disproportionate to compensating the injured and made at the expense of 
society as a whole.
  I repeat that again. For the system to work, we must strike a 
delicate balance between the rights of the aggrieved parties to bring 
lawsuits and

[[Page S3758]]

the rights of society to be protected against frivolous lawsuits and 
outrageous judgments that are disproportionate to compensating the 
injured and made at the expense of society as a whole.
  I have been concerned about this issue since my days as Governor, as 
I mentioned. In 1996, I essentially had to pull teeth in the Ohio 
legislature to pass my tort reform bill which would have placed caps on 
noneconomic and punitive damages, established proportional liability, 
and created a rebuttable presumption that a hospital was not negligent 
regarding negligent credentialing, among other provisions.
  I signed the bill into law in October of 1996. Three years later, the 
Ohio Supreme Court ruled it unconstitutional. Had that law withstood 
the supreme court scrutiny--and I think today it would because we have 
a different supreme court--Ohioans would not be facing the medical 
access problems they are facing today--doctors leaving their practice, 
patients unable to receive the care they need, and cost of health 
insurance going through the roof.
  Next to the economy and jobs, the most important issue facing America 
today is health care. In fact, it is a part of the reason why our 
economy is in trouble. We have too many uninsured, and those who have 
insurance face soaring premiums every year, making it less likely they 
can continue to pay for them.
  In addition, employers face spiraling costs and in some cases do not 
even provide insurance, and those that do have been forced to increase 
their premiums and pass on the added costs to their employees, whose 
family budgets are often already stretched razor thin.
  In other words, I see people in business every day who say, Senator, 
I want to provide health care for my employees but the cost of it has 
gone up to the point where I cannot afford to provide it for them. Or, 
in the alternative, Senator, I am going to provide it for them, but I 
am going to ask them to pay for more of their premiums. And, Senator, 
in so many instances my employees cannot pay the additional premiums, 
and because they cannot pay the additional premiums, they lose their 
health insurance.
  I believe that providing the sort of commonsense approach found in 
the Pregnancy and Trauma Care Access Protection Act of 2004 is one way 
to deal with this escalating cost of health insurance in the United 
States. The bill will give patients greater access to care. It will 
provide medical liability for those physicians who provide prenatal 
delivery and postpartum care to mothers and babies. Patients would not 
have to give away large portions of their judgment to their attorneys. 
Truly injured parties can recover 100 percent of their economic 
damages. Punitive damages are reserved for those cases where they are 
truly justified. Doctors and hospitals would not be held liable for 
harm they do not cause and physicians can focus on doing what they do 
best, practicing medicine and providing health care.
  I, again, urge my colleagues to vote for cloture so we can debate 
this issue and have an up-or-down vote on this legislation. We owe it 
to the people of this country to have a robust debate of this on the 
Senate floor.
  I close my remarks this afternoon by reading a letter from Laurence 
E. Stempel, an MD from Columbus, OH. This is from the letter he sent to 
his patients on June 23, 2003:

       On June 17, 2003, I received my professional liability 
     insurance rate quote for the upcoming year, and it is 64 
     percent higher than last year. I have seen my premiums almost 
     triple during the past 2 years, despite never having had a 
     single penny paid out on my behalf in 27 years as a 
     physician. Even worse, during this time the insurance company 
     has reduced the amount of coverage that I can purchase from 
     $5 million to only $1 million . . .

  In other words, his insurance has gone up astronomically and he is 
getting about 80 percent less coverage than he had before. He said:

     while jury verdicts have skyrocketed, often exceeding $3.4 
     million. If I were to purchase this policy, I would be 
     putting all of my family's personal assets at risk every time 
     that I delivered a baby, or performed surgery. I refuse to do 
     that.
       I have therefore decided to retire from private practice. . 
     . .[T]he final day of my current liability insurance policy 
     [is when that will happen.]
       This is not a decision I have taken lightly, but 
     unfortunately it has become necessary. For many of you, I 
     have been part of your life for years. I have delivered your 
     babies and helped you through some of life's most difficult 
     challenges. It has truly been an honor.

  We have to stop this from happening in this country. We have the 
power to do something about it on the floor of the Senate, and it is 
about time we faced up to our responsibility and did something about 
it.
  I ask unanimous consent that the entire letter be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                    Laurence E. Stempel, M.D.,

                                                    June 23, 2003.
       Dear Friends, As you know, our country is in the midst of 
     its worst medical liability crisis ever. Hardly a day passes 
     without a mention of the ``malpractice crisis'' in the 
     newspapers or on the nightly news. In fact, just a couple of 
     weeks ago, it was Time Magazine's cover story. This is a 
     national problem, and a truly frightening one. For example, 
     Las Vegas had 130 obstetricians a year ago. There are now 75, 
     and by the end of the year, there will probably only be 40 
     left to care for the 23,000 women who deliver there each 
     year. Women are driving to Utah and California for prenatal 
     care. Closer to home, there were nine obstetricians in 
     Athens, Ohio, a year ago. There are now four, and soon there 
     will only be the two who teach at the medical school. Some 
     hospitals around the nation have closed their obstetric 
     units.
       On June 17, 2003, I received my professional liability 
     insurance rate quote for the upcoming year, and it is 64% 
     higher than last year's rate. I have seen my premiums almost 
     triple during the past two years, despite never having had a 
     single penny paid out on my behalf in twenty-seven years as a 
     physician. Even worse, during this time the insurance company 
     has reduced the amount of coverage that I can purchase from 
     $5 million to only $1 million, while jury verdicts have 
     skyrocketed, often exceeding $3-4 million. If I were to 
     purchase this policy, I would be putting all of my family's 
     personal assets at risk every time that I delivered a baby or 
     performed surgery. I refuse to do that.
       I have therefore decided to retire from private practice on 
     July 31, 2003, the final day of may current liability 
     insurance policy. This is not a decision that I have taken 
     lightly, but unfortunately it has become necessary. For many 
     of you, I have been part of your life for years. I have 
     delivered your babies, and helped you through some of life's 
     most difficult challenges. It has truly been an honor.
       There is always a silver lining in every cloud. I am 
     looking forward to being able to devote more time to teaching 
     medical students and obstetric residents, a pursuit that has 
     occupied about a third of my professional time during recent 
     years. I will also be able to spend more time with my wife 
     and family, whom I have often neglected during the past years 
     due to the responsibility of my practice.
       I know that these changes will be a serious inconvenience 
     for many of you. For those of you who are currently pregnant, 
     I will try to find each and every one you a competent and 
     caring obstetrician to help you through the rest of your 
     pregnancy and delivery. For those patients who have a 
     gynecology appointment schedule after July 31, it will be 
     necessary for you to reschedule with another physician. I 
     would like to recommend the physicians of Associates in 
     Central Ohio Obstetrics & Gynecology (phone 889-6117). This 
     group has an office in Suite A of my building, as well as a 
     couple of other offices around town. I have known all of 
     these physicians for years, and I taught most of them when 
     they were medical students or obstetric residents. 
     Furthermore, I have traded call with this group for a number 
     of years. They have agreed to be the custodian of my 
     patients' charts, and to see my patients if they would like. 
     If you would prefer to see another physician, they have 
     agreed to forward the pertinent information upon receipt of a 
     signed request.
       Thank you again for the honor of being your physician. I 
     will miss each and every one of you.
           Sincerely,
                                         Laurence E. Stempel, M.D.

  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I ask unanimous consent to speak for up to 
15 minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Extending Trade Adjustment Assistance

  Mr. WYDEN. Mr. President, software programmers in Beaverton, OR, 
every day have to compete with those in Beijing. I think it is very 
important for the Senate to set in place bipartisan policies that are 
going to finally give a fair shake to our workers who are competing in 
tough global markets.
  I come to the floor this afternoon because I have developed, with the 
support of Senator Coleman, our colleague from Minnesota, a bipartisan 
proposal that would give the Senate a chance to help hundreds of 
thousands of laid-off

[[Page S3759]]

high tech workers and service employees by extending trade adjustment 
assistance benefits to them so they can receive job training, income 
support, and health insurance tax credits.
  So often these workers have lost their jobs through no fault of their 
own, and we know--especially the distinguished Presiding Officer of the 
Senate--these high tech workers have been the envy of our American 
workforce. There is extraordinary ingenuity among these hundreds of 
thousands of programmers and engineers and designers who have helped 
drive our economy in this century. Their creativity has generated an 
exceptional wave of economic prosperity, and trade agreements on 
services and intellectual property helped carry the fruits of the work 
of our workers around the globe.
  Information technology developed by American workers transformed the 
world and the way business is done. Overseas cable costs have dropped 
by as much as 80 percent in the last 5 years which, as the 
distinguished Presiding Officer knows, has spread the Internet far and 
wide. The Internet has made it a lot cheaper to send work through a 
phone line than to ship a bulky package on an airplane.
  Globalization of technology has globalized the technology workforce. 
So, in fact, the workers I am honored to represent in Beaverton, OR, do 
have to compete against workers in Beijing, and certainly geography is 
increasingly less important in determining where a job can be done.
  But the transformation from an economy built on smokestacks to one 
built on packages of light has come at a heavy price. So often trade 
agreements in the past considered these high technology and service 
workers as an afterthought. The irony is now some of the very same 
workers who launched the technology revolution have actually become its 
victims. Hardly a day goes by without a front-page story in our country 
about an American programmer on his way out who is having to train a 
foreign worker who will replace him.
  Senator Coleman and I have been working with a number of colleagues. 
Senator Baucus on this side of the aisle has been exceptionally 
helpful. We talked with a number of colleagues on the other side of the 
aisle. Senator Coleman and I have developed a bipartisan proposal to 
make sure these workers, who have not gotten a fair shake in the past, 
do have an opportunity to get back into our marketplace economy.
  It is not a moment too soon. The American Electronics Association 
2003 Cyberstates report found unemployment among computer programmers 
jumped from 4.5 percent in 2001 to 6.2 percent in 2003. High tech 
employment fell by 540,000 jobs to 6 million in 2002 and a further loss 
of 234,000 jobs was expected in 2003.
  The average American may think the Federal Government is helping 
those technology workers and service workers whose jobs have been 
displaced by trade. But the reality is that assistance is not available 
because the trade assistance law, which was authored in 1962 for 
displaced manufacturing workers, did not contemplate the tremendous 
number of jobs we now have in the technology sector, with all of those 
software programmers and engineers and designers. The U.S. trade 
assistance laws were designed for the manufacturing era.
  Since 1962, when workers lost their jobs in a manufacturing plant as 
a result of trade, they could get help through the Trade Adjustment 
Assistance Act. The Trade Adjustment Assistance Act has, in fact, 
helped hundreds of thousands of those displaced workers. But workers in 
the technology and the services sector, which now accounts for four-
fifths of the U.S. workforce, have not been eligible for trade 
adjustment assistance. Time after time when a displaced software 
developer, accountant, or someone who has worked in the telemedicine 
field has gone knocking on the doors of the Trade Adjustment Assistance 
Program, they have been turned away. The bipartisan amendment I have 
developed with Senator Coleman will open the doors of the Trade 
Adjustment Assistance Act to the hundreds of thousands of displaced 
technology and service sector workers.
  All of these workers who have been displaced by trade and by global 
marketplace forces deserve the same kinds of benefits. All of them have 
a chance to use these programs as a trampoline back into the private 
economy, so they can capture the jobs for which their skills have 
blessed them. Our amendment will establish equity in the program 
between manufacturing and service workers.
  The Wyden-Coleman amendment will cover three categories of trade-
impacted service workers: those who lose their jobs when their employer 
closes or lays off because of import competition; public and private 
sector service workers who lose their jobs when their facility moves 
overseas; and secondary service workers who provide services to a 
primary firm where workers are eligible for trade adjustment assistance 
and where a closure has caused a layoff or closure at a secondary firm.
  This is an extraordinarily important statute because it provides 
retraining, income support, health insurance tax credits, and other 
benefits to workers who lose their jobs. It can also help secondary 
workers or individuals who supply parts or services and who may have 
lost their jobs because their facilities shut down due to import 
competition or they move overseas. This is exactly the type of trade-
displaced service worker opportunity that our citizens need.

  A self-described ``newly employed software engineer'' from Hillsboro, 
OR, wrote in December that ``my job was moved to India where the 
company can pay Indians a fifth of what they pay Americans.''
  Another wrote:

       [A]s a 50-year-old high-tech manufacturing engineer with 26 
     years' experience, I was laid off in December 2002. I am sure 
     the new factory the company is building in China will prevent 
     my ever returning. I can't even get hired into an entry level 
     position anywhere because I am over-qualified.

  These unemployed Oregonians and the hundreds of thousands of other 
information technology professionals who have lost their jobs deserve 
an opportunity to get the training, health care, and income assistance 
so they can get back on their feet and use their skills in the private 
marketplace. The Trade Adjustment Assistance Act would target these 
kinds of workers who have been hurt by unfair competition.
  Globalization of information technology hardware production from 1995 
through 2002 cut information technology hardware costs 10 to 30 
percent, translating into higher productivity growth and adding $230 
billion to our gross domestic product. Information technology became 
affordable to business sectors that were previously bypassed by the 
productivity boom.
  We are now talking about the small and midsized companies in health 
care, construction, and a host of related fields. But as information 
technology hardware prices declined, the importance of information 
technology services and software increased to almost 70 percent of 
information technology spending in 2001. With the growth in software 
and services outpacing hardware spending by almost two to one, the 
demand for cheaper information technology services has lent strength to 
this whole trend to move these jobs offshore. No one appears to have 
anticipated the extraordinary speed in which all of this has taken 
place or the scale of jobs moving offshore.
  The workers who lost their jobs and their livelihoods from jobs that 
have gone overseas cannot afford to wait for the higher skilled jobs 
that economists keep telling them is right around the corner. Higher 
value and higher paid systems integration jobs may come along, but in 
this period unemployed information technology professionals seem to 
feel they are more likely to see Elvis than a sudden proliferation of 
new highly skilled information technology jobs.
  At the end of the day, what I am saying, along with the distinguished 
Senator from Minnesota, is it should be irrelevant whether an 
individual works in today's economy in the services and technology 
sector or whether they work in the manufacturing area. Each of our 
workers who has been displaced by trade should be eligible for the same 
benefits. That is what our bipartisan proposal would do. The hundreds 
of thousands of workers who have been laid off in every part of our 
country in the technology sector and in the service sector are looking 
to whether the

[[Page S3760]]

Senate will modernize the trade adjustment laws so they finally can get 
a fair shake and so they can pick up the skills and the health care and 
the income support that is going to let them get back on their feet, 
use their ingenuity, and use their work ethic to have a chance for a 
high-skill, high-wage job once again.

  I call on the Senate in a time of discussion about gridlock and the 
inability to move forward on important legislation. This is an example 
of two Senators who have worked with colleagues from both political 
parties to come up with a proposal that can help hundreds of thousands 
of workers in an economic crunch today that is sure to continue. We 
hope the Senate will move expeditiously on our legislation.
  It seems to me, to put it in the context of my home State, that when 
a worker who is a software programmer in Beaverton, OR, works hard and 
plays by the rules, it ought to be the job of the Senate to say when 
that worker is up against a software programmer in Beijing and the 
Beijing worker works for a fraction of the wages of the worker in 
Beaverton we create policies which are going to make it possible for 
our workers to move ahead to have the kind of quality of life that will 
allow them to support a family and participate in the community.
  I call on the Senate to pass our bipartisan proposal as soon as 
possible.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, what is the parliamentary situation? Are we 
back on the motion to proceed?
  The PRESIDING OFFICER. We are on the motion to proceed.
  Mr. HATCH. Mr. President, today I rise to speak in support of S. 
2207, the Pregnancy and Trauma Care Access Protection Act of 2004.
  This bill helps to remedy the exploding medical liability and 
litigation crisis in our country, which is preventing patients from 
receiving high-quality health care--or, in some cases, any care at 
all--because doctors are being driven out of practice. In fact, this 
crisis hits us on two fronts, preventing many Americans from getting 
the vital health care they need, and raising the overall costs of 
health care for nearly all Americans.
  As you will recall, this legislation is not our first attempt to 
relieve this crisis in access to care. Most recently, we debated S. 
2061, which failed to receive the 60 votes necessary to invoke cloture 
in February, and we debated S. 11 prior to that. We can ill afford to 
ignore the many Americans whose doctors are retiring early or 
restricting their practices because of rising malpractice costs.
  This health care crisis is jeopardizing access to health care in my 
home State of Utah and around the country.
  The medical liability crisis is also inhibiting efforts to improve 
patient safety and stifling medical innovation. Excessive litigation is 
adding billions of dollars in increased costs. The Congressional Budget 
Office estimates that total savings to Medicare, Medicaid and the 
Federal Employees Health Benefit Program would be $15 billion in direct 
health care costs by passing medical liability reform. A Department of 
Health and Human Services report estimates that we could save $70 
billion to $126 billion in defensive medicine costs. And they are 
really on the conservative side. I said 20 years ago, as a former 
medical liability defense lawyer defending doctors, health care 
providers, nurses, and so forth, knowing that most of those suits were 
frivolous to begin with, that there was at least $300 billion in 
unnecessary defensive medicine. Now we all want defensive medicine. We 
want doctors to do everything they can to help. But I am talking about 
unnecessary defensive medicine, unnecessary tests, unnecessary costs, 
unnecessary x-rays, unnecessary MRIs, unnecessary CAT scans, 
unnecessary cardiovascular tests, unnecessary respiratory tests and 
other types of tests that are not needed but are insisted upon by 
doctors because they want to have in their history every possible 
protection.

  Even the American Medical Association admits there are at least $65 
billion in unnecessary defensive medicine costs. When you get the AMA 
to admit that, you know it probably is a lot higher. In fact, it is 
costing every American, because we will not do anything about getting 
these frivolous suits under control. It is wrecking our health care 
profession in this country.
  The liability crisis is also reducing access to high-quality health 
care. The 2004 survey by Medical Group Management Association of almost 
13,000 physicians found that 15.6 percent of responding groups reported 
that their physicians plan to retire, relocate or restrict their 
services over the next three years.
  These numbers have been consistent in large studies done in New York, 
California, Colorado and my home state of Utah.
  However, the equally troubling statistics are that only two percent 
of cases with actual negligent injuries result in claims and less than 
one-fifth--17 percent--of claims filed actually involve a negligent 
injury. In other words, the deserving injured are going uncompensated, 
while a great deal of litigants with spurious claims tie up our court 
system and cost all of us unnecessary billions of dollars.
  This situation has been likened to a traffic cop who regularly gives 
out more tickets to drivers who go through green lights than to those 
who run red lights. That is clearly no way to ensure traffic safety, 
and we should not accept such an inefficient and inequitable method of 
ensuring patient safety.
  These numbers are a searing indictment of the current medical 
liability system. I believe we can do better for the American people 
and the Pregnancy and Trauma Care Access Protection Act is an important 
step along that path. We must do better.
  Today's proposed legislation addresses two areas in dire need of 
relief: trauma care and obstetrical care.

  Many physician groups are no longer able to be oncall for hospital 
emergency departments. As medical care to trauma victims, especially 
children, is by its nature high risk, many doctors can no longer afford 
to treat pediatric trauma patients. The problem is also acute for women 
who need obstetrical and gynecological care because OB/GYN is among the 
top three specialties with the highest professional liability insurance 
premiums. This has led to many doctors leaving their practice and to a 
shortage of doctors in many States, including my own home State of 
Utah. For example, Utah physician Dr. Catherine Wheeler would have to 
deliver more than 60 babies each year just to pay for her medical 
liability insurance, which is over $70,000. Although she works 80 hours 
per week, after she pays her malpractice premiums and other costs, she 
takes home money for only 2\1/2\ months of the year.
  Utah Medical Association data show that medical liability insurance 
premiums continue to increase rapidly, creating pressure on doctors to 
restrict service in Utah. In 2002, there was a 30-percent rise. Last 
year, premiums rose 20 percent. This year, they are projected to 
increase 15 percent in Utah.
  Studies by both the Utah Medical Association and the Utah Chapter of 
the American College of Obstetricians and Gynecologists, ACOG, 
underscore the problem in my State.
  Utah Medical Association data show that over half of the family 
practitioners in Utah have already given up obstetrical services or 
have never practiced obstetrics even though they were trained to do so. 
Of the remaining practitioners who still deliver babies, nearly one-
third say they plan to stop providing OB services within the next 
decade--most within 5 years. A Utah ACOG survey found that 15 of the 
106 members polled had already stopped practicing obstetrics, and 21 of 
the remaining 91 plan to stop within 5 years. These changes in 
practice, such as retiring, relocating, or dropping obstetrics because 
of the medical liability reform crisis, leaves almost 1,500 pregnant 
women in Utah without OB/GYN care.
  The medical liability crisis, while affecting all medical specialties 
and practices, hits OB/GYN practices especially hard. Astonishingly, 
over three-fourths--76.5 percent--of obstetrician/gynecologists report 
being sued at least once in their individual careers. Indeed, over one-
fourth of OB/GYN doctors will be sued for care given during their 
residency. These numbers have discouraged Americans finishing medical 
school from choosing this vital specialty.
  Currently, one-third of OB-GYN residency slots are filled by foreign 
medical graduates, compared to only 14

[[Page S3761]]

percent one decade ago. OB/GYN doctors are particularly vulnerable to 
unjustified lawsuits because of the tendency to blame the doctor for 
brain-injured infants, although research has proven that physician 
error is responsible for less than 4 percent of all neurologically 
impaired babies.
  Jury awards have been escalating at an alarming rate. Data from Jury 
Verdict Research show that the average liability award increased 176 
percent from 1994 to 2001. The average jury award is $3.9 million. Over 
half of all awards are $1 million or more. This crisis is threatening 
Americans' confidence in our health care system to take care of their 
medical needs. Over three-fourths of Americans fear that skyrocketing 
medical liability costs could limit their access to care, and indeed 
that is already happening. AMA, the American Medical Association, data 
show that 19 States--19 States--have serious patient access problems, 
and 25 more, including my own home State of Utah, are nearing crisis.
  An August 2003 GAO report concluded that actions taken by health 
providers as a result of skyrocketing malpractice premiums have 
contributed to health care access problems. These problems include 
reduced access to hospital-based services for deliveries, especially in 
rural areas.

  In addition, the report indicated that States that have enacted tort 
reform laws with caps on noneconomic damages have slower growth rates 
in medical malpractice premiums and claims payments. From 2001 to 2002, 
the average premiums for medical malpractice insurance increased about 
10 percent in States with caps on noneconomic damages. In comparison, 
States with more limited reforms experienced an increase of 29 percent 
in medical malpractice premiums each year.
  Medical liability litigation directly and dramatically increases 
health care costs for all Americans. In addition, skyrocketing medical 
litigation costs indirectly increase health care costs by changing the 
way doctors practice medicine.
  ``Defensive medicine'' is defined as medical care that is primarily 
or solely motivated by fear of malpractice claims and not by the 
patient's medical condition. According to a survey of 1,800 doctors 
published in the journal entitled Medical Economics, more than three-
fourths of doctors felt they must practice defensive medicine. A 1998 
study of defensive medicine by Dr. Mark McClellan, using national 
health expenditure data, found that medical liability reform had the 
potential to reduce defensive medicine expenses by $69 billion to $124 
billion in the year 2001. You can imagine what that number is today.
  I remember, as a medical malpractice defense lawyer, I would tell 
doctors: You are just pigeons in a shooting gallery. The fact is, 
physicians have to have a history of treatments they have provided to 
their patients so they can prove that they did everything possible to 
prevent any real problems with their respective patients. Consequently, 
doctors have had to do that over the years because of the skyrocketing 
medical liability claims being made, a good 90 percent of which are, 
for the most part, spurious and frivolous.
  The financial toll of defensive medicine is great, and especially 
significant for reform purposes, as it does not produce any positive 
health benefits. Not only does defensive medicine increase health care 
costs, it also puts Americans at avoidable risk. Nearly every test and 
every treatment has possible side effects; thus, every unnecessary 
test, procedure, and treatment potentially puts a patient in harm's 
way. Seventy-six percent of physicians are concerned that malpractice 
litigation has hurt their ability to provide quality care to patients.
  What can we do to address this crisis? The answer is, plenty; and 
there are excellent examples of what works. Last March, HHS released a 
report describing how reasonable reforms in some States have reduced 
health care costs and improved access to quality health care. More 
specifically, over the last 2 years, in States with limits of $250,000 
to $350,000 on noneconomic damages, premiums have increased at an 
average of just 18 percent compared to 45 percent in States without 
such limits.
  California enacted the Medical Injury Compensation Reform Act, also 
known as MICRA, more than a quarter century ago. MICRA slowed the rate 
of increase in medical liability premiums dramatically without 
affecting negatively the quality of health care received by California 
State residents. As a result, doctors are not leaving California.
  Furthermore, between 1976 and the year 2000, premiums increased by 
167 percent in California, while they increased three times as much--
505 percent--in the rest of the country. Now, both percentage increases 
are high, but 505 percent is extremely high in comparison to a very 
litigious State like California. Consequently, Californians were saved 
billions of dollars in health care costs and Federal taxpayers were 
saved billion of dollars in the Medicare and Medicaid Programs because 
of the California restraint on medical malpractice claims, especially 
those that are not proper claims.
  No one in this body, perhaps with the exception of our colleague from 
Tennessee, Dr. Bill Frist, our majority leader, is more keenly aware of 
the defects in this system than I am. I used to try these cases, and I 
can say from a practical standpoint that a lot of lawyers bring cases 
that really are frivolous, because the cost of defending these cases 
can be in the hundreds of thousands of dollars.
  Many insurance companies will pay off those defense costs to get rid 
of the case rather than take the chance a runaway jury will cost them 
even more. That is what is happening. It is happening in hundreds, 
perhaps thousands, of cases throughout the country. Most of these cases 
should have never been filed, however, there are a small number of 
cases that are very serious and it is appropriate for our judicial 
system to take care of them.
  Before coming to Congress, I litigated several medical liability 
cases. I have seen heart-wrenching cases in which mistakes were made, 
where there was negligence. But more often, I have seen heart-wrenching 
cases in which mistakes were not made. Doctors were forced to spend 
valuable time and resources defending themselves against these 
frivolous lawsuits.
  A recent Institute of Medicine report, ``To Err is Human,'' concluded 
that:

       The majority of medical errors do not result from 
     individual recklessness or the actions of a particular group. 
     This is not a bad apple problem. More commonly, errors are 
     caused by faulty systems, processes, and conditions that lead 
     people to make mistakes or fail to prevent them.

  We need reform to improve the health care system and processes that 
allow errors to occur and to identify better when real medical 
liability has occurred. The reform I envision would address litigation 
abuses in order to provide swift and appropriate compensation for 
malpractice victims, redress for serious problems, and ensure medical 
liability costs do not prevent patients from accessing the care they 
really need. So we need to move ahead with legislation to improve 
patient safety and reduce medical errors, and we need to urgently 
address the medical liability crisis so more women are not denied 
access to quality medical care because it has become too expensive for 
their OB/GYN doctors to continue their practice, and so we do not 
jeopardize trauma patients' access to urgently needed medical 
attention.
  The Pregnancy and Trauma Care Access Protection Act of 2004 will 
allow us to begin ensuring that women, babies, and trauma patients get 
the medical care they need and deserve.
  Without tort reform, juries are awarding astounding and unreasonable 
sums for pain and suffering. A sizable portion of those awards goes to 
the attorney rather than the patient. It is often estimated as high as 
50 percent. The result is doctors cannot get insurance and patients 
cannot get the care they need.
  All Americans deserve the access to care, the cost savings, and the 
legal protections States like California provide their residents. 
Today's bill will allow us to begin to address this crisis in our 
health care system. It will give trauma patients and women and their 
babies access to their doctors, and it will enable doctors to provide 
high quality, cost-effective medical care.
  America's medical liability system is broken. It is not ensuring 
patient safety, and it is causing shortages of vital health care 
throughout the country. Congressional action to pass medical

[[Page S3762]]

liability reform legislation is imperative. I strongly support this 
legislation and I urge my colleagues to support cloture and end this 
filibuster that will now be the third time effective changes in these 
laws is being attempted. Our pregnant women deserve better. They 
deserve the best quality care the medical system can provide. Our 
trauma victims deserve better. We are finding all over the country 
trauma centers are either starting to shut down or severely cutting 
back because they can no longer afford to fight these frivolous cases. 
They can't function in a health care system that doesn't work. That is 
a tragedy, especially for those who suffer from trauma-related 
injuries.
  I hope our colleagues will vote for cloture on this bill. I hope we 
can proceed and pass medical liability reform which is long overdue. I 
strongly support S. 2207 and urge my colleagues to do what is in the 
best interest of patients and health care providers throughout the 
country.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Voinovich). The Senator from Vermont.
  Mr. LEAHY. Mr. President, it is remarkable that in 29 years here in 
the Senate--several times the Senate under the control of Democrats, 
several times the Senate under the control of Republicans--I have never 
seen so little accomplished and I have never seen so much political 
posturing on the Senate floor which then gets put into fundraising 
letters and fundraising appeals. I have never seen so much special 
interest legislation. But the bottom line is I have never seen so 
little accomplished. Probably there is a corollary.
  Instead of doing the people's business, we seem to be doing political 
action committee business. And that is why, of course, nothing gets 
done.
  Let's talk about this. If there were ever a piece of legislation on 
which politics is being played, it is the medical malpractice bill. It 
is a one-size-fits-all bill for a problem that is really different from 
State to State. Basically we are telling the 50 State legislatures and 
Governors that the Members of the U.S. Senate know a lot more about 
their States' needs than they do and that the U.S. Senate will dictate 
a change. We will override their courts and their legislatures. We will 
override their laws and we will make life better for them. But when we 
do, of course, we yank away the rights of the States and the people 
there. Whenever we target the rights of the public and we try to figure 
out ways to run roughshod over a State, we ought to be pretty careful 
how we do it.
  Normally you would think we would have committee hearings. We would 
try to have a bipartisan bill. We would have something that would 
demonstrate to the States, as we take away their rights, that such a 
move has been considered by all 100 Senators and there is a consensus. 
Instead, we have a piece of legislation written by lobbyists and 
special interests that is so bad nobody even dares send it to a 
committee--not even friendly committees. They send it right to the 
floor.
  This is the third time the Republicans have taken this partisan 
approach. Last July they employed this partisan tactic and failed to 
pass legislation. Earlier this year, they tried to rush through the 
Senate a bill to limit the legal rights of the most vulnerable 
patients--mothers and infants--and they failed. Now they are again 
rushing an extreme bill overriding the laws of each of the 50 States. 
This time, however, the bill is not limited to obstetrical and 
gynecological care. Now they want to extend the restrictions on legal 
rights to trauma and emergency care. The third time for this partisan 
approach is no charm. Republicans' mad dash to push through this 
proposal in this election year under the guise of reducing health care 
costs is a blatant attempt not to reduce health care costs, which we 
would all support, but to exploit their own political agenda.
  I remember the article last year in Washington Monthly, titled 
``Malpractice Makes Perfect: How the GOP Milks a Phony Doctors' 
Insurance Crisis.'' This article was so good, it was nominated for a 
National Magazine Award. It shows how Republicans launched a 
sophisticated lobbying campaign with business interests to manipulate 
the medical malpractice debate and change it from one about medical 
errors and fair compensation, pitting one political constituency 
against another.
  I commend to my colleagues the article to which I referred from the 
Washington Monthly of October 1, 2003, by Stephanie Mencimer.
  Mr. President, the article points out clearly that even if we passed 
this legislation, insurance rates would not have come down. There is no 
one who with a straight face can say that if we pass this legislation, 
then insurance rates will come down. Insurance companies would not be 
spending so much money trying to get this passed if they thought so.
  Once again, Republicans have proposed a plan that would cap non-
economic damages across the Nation at $250,000--whether you live in 
California, Ohio, Vermont, or anywhere else; no matter what the injury, 
that is the cap.
  The so-called medical malpractice reform debate too often ignores the 
men, women and children whose lives have been dramatically--and often 
permanently--altered by medical errors.
  I will give you a real-life example in my State of Vermont. On April 
7, 2000, Diana Winn Levine had a severe migraine headache. That is 
something that has probably happened to most of us at one time or 
another. She went to a health center in Plainfield, VT. She was a 
musician. She received a painkiller and an injection of a mild 
sedative, Phenergan. This combination was injected into her artery 
rather than her vein, and resulting circulatory problems led to this 
musician having to have two amputation surgeries on her right arm.
  Ms. Levine sued the corporate giant, Wyeth, for improper instructions 
for using its drug, Phenergan. As she said:

       I never expected to sue anyone in my life; I'm not the 
     suing type.

  Sometimes it takes something like this to make it known when a drug 
is not being used right.
  There was a full trial. I remember reading the account of the trial. 
When they went to swear Ms. Levine in for her testimony, the bailiff 
asked her to raise her right hand. Of course, she had no right hand. 
That jury in Vermont--and our juries are pretty careful--found that Ms. 
Levine deserved $2.4 million for her past and future medical expenses, 
and $5 million for the ``daily pain she does suffer and for the loss of 
enjoyment of her life.'' Of course, most of that would have been 
slashed by this legislation. Crowds of the children Ms. Levine had 
worked with on musical projects--children she'd brought joy to as a 
musician--sat in the courtroom of the Montpelier Superior Court. She 
said:

       That was the day they actually showed pictures of my dead 
     hand . . . before amputation, with the gangrene. I worried 
     about how the kids would react to my disfigurement. I told 
     the mom to cover her eyes. But afterward she came up to me 
     and said, ``We just didn't know what you have been through.''

  Now, Wyeth, of course, was well represented. They had a team of six 
lawyers--two from Vermont and four from Washington, DC. They did, after 
all, have 2003 revenues of $15.8 billion and keep a $1.3 billion 
reserve fund because of the ongoing litigation over their diet drugs.
  Again I say: This musician would have been cut out entirely if the 
U.S. Senate were to overwrite the laws of our State.
  Mr. President, I ask unanimous consent that the article from the 
Burlington Free Press be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

            [From the Burlington Free Press, Mar. 16, 2004]

                      Vt. Woman Wins $7.4M Lawsuit

                          (By Stephen Klernan)

       A Marshfield musician who lost an arm to a medical error 
     has won one of the largest lawsuit awards in Vermont history.
       Diana Winn Levine, owner and creative director of Rebop 
     Records, had sued the multinational health products company 
     Wyeth for having improper guidelines for the drug that 
     damaged her hand and forearm and led to amputation.
       A Montpelier jury on Friday awarded Levine $7.4 million.
       ``Sometimes it takes something like this to make it known, 
     when a drug is not being used right,'' Levine said Monday.
       The weeklong trial, pitting a central Vermont bass player 
     and guitarist against one of the world's largest health 
     products companies, featured testimony by family

[[Page S3763]]

     members and well-known Vermont musicians, as well as gallery 
     crowds of children involved in Rebop recordings.


                           not the suing type

       Levine was suffering from a migraine April 7, 2000, when 
     she went to the Health Center in Plainfield. She received a 
     painkiller, and an injection of a mild sedative, Phenergan.
       In what she called ``a medical blunder,'' the drug entered 
     her artery rather than her vein. Resulting circulatory 
     problems led to two amputation surgeries on her right arm.
       The case against Wyeth pertained to the company's 
     instructions for using the drug, Levine said.
       ``I never expected to sue anybody in my life; I'm not the 
     suing type,'' she said. Then she learned that ``Phenergan, 
     which is toxic, can be given in three ways. The other two are 
     fine. What happened to me can happen, it is foreseeable.''
       The trial, in which she was represented by Richard Rubin, 
     David Kidney and Kerry DeWolfe, featured considerable drama.


                          importance of music

       ``We played a lot of music for the jury,'' Rubin said, ``We 
     showed videotapes of her performing.''
       Folksinger Jonathan Gailmor testified on Levine's behalf.
       ``Jon expressed it so amazingly, how important music is in 
     life, and how he couldn't even imagine losing the ability to 
     play,'' she said.
       Crowds of the children Levine has worked with on musical 
     projects, such as Rebop's latest CD ``Even Kids Get the 
     Blues,'' sat in the courtroom in Monptelier Superior Court.
       ``That was the day they actually showed pictures of my dead 
     hand,'' before amputation, with the gangrene,'' Levine said. 
     ``I worried about how the kids would react to my 
     disfigurement. I told the mom to cover her eyes. But 
     afterward she came up to me and said, `We just didn't know 
     what you have been through.' ''


                             public airing

       Rubin said one powerful moment in the trial came 
     accidentally.
       ``We'd spent all this time establishing what it is like to 
     lose your right hand, even if you're not a musician. When 
     someone offers to shake your hand, what do you do? When 
     someone is handing you change at the cash register, what do 
     you do?''
       Then Levine's turn on the witness stand arrived. The baliff 
     came to swear her in, asking her to raise her right hand.
       ``We looked at each other, and it hit me first,'' Levine 
     said. ``Then we cracked up. There's my prosthesis, so I said, 
     ``You mean this?''
       ``She laughed,'' Rubin said, ``but it was a poignant 
     moment.''
       She was afraid to testify, Levine said, and publicly relive 
     the experience of losing her arm, ``but once you get up 
     there, it just comes out.''
       Levine became comfortable enough, Rubin said, she showed 
     the jury how her prosthesis works.
       Levine said the ``ultimate'' was when her 21-year-old 
     daughter testified. ``What mother gets a chance to have her 
     daughter up there, basically saying all these things about 
     how much she appreciated me, and her upbringing in a house 
     full of music?''


                           david vs. goliath

       Wyeth had a team of six lawyers, Rubin said, two from 
     Vermont and four from Washington, D.C. The company, with 2003 
     revenues of $15.8 billion, makes Robitussin, Advil, Centrum 
     and many other health products. The company also has a $1.3 
     billion reserve fund for ongoing litigation over its diet 
     drugs.
       Attorneys for Wyeth did not return calls seeking comment.
       ``But we did not make this case anti-drug company, or anti-
     out-of-state company,'' Rubin said. ``This case was really 
     about Diana's loss of her ability to play and write music.''
       ``Music is my way of healing and processing everything that 
     happens to me,'' Levine said. ``The right hand is just the 
     core of your playing. And so much of writing comes not from 
     your head but from what your hands do.''
       Rubin said the suit sought $2.4 million for Levine's past 
     and foreseeable medical expenses, plus $5 million ``for the 
     daily pain she does suffer and for the lost employment of her 
     life.''
       The amount of money seems large, he said, but is actually 
     based on ``an hourly rate. We asked the jury to award $25 per 
     hour for her pain and suffering, 16 hours a day, for the next 
     20 years.''
       The jury deliberated about four hours before awarding her 
     the entire $7.4 million.
       ``The jury came in, and I'm like, `Prop me up,' my knees 
     were so weak,'' Levine said.
       State Court Administrator Lee Suskin, said he could only 
     recall one larger financial result from a suit. ``We don't 
     keep track of these things, but it seems an usually large 
     award.''
       ``That's just on paper,'' Levine said. ``It's almost 
     certain that they will appeal. My bank account is no fuller 
     than it was a month ago.''
       Wyeth did make one strategic error, Rubin said.
       ``There was nobody here from Wyeth who knew about the drug 
     and was prepared to defend it from the corporate 
     perspective,'' he said. ``The jury never saw anyone from 
     Wyeth but their lawyers.''
       Even if there is an appeal, Levine said, ``There's 
     something about retelling that helps you to finish it. And to 
     move on.''


                             cracking eggs

       Levine said phantom pain, in which her mind thinks she 
     still has an arm, remains a daily problem. ``You look down 
     there and you see, there is no arm there, kiddo. But the 
     brain thinks there is a giant Mickey Mouse hand that always 
     feels like pins and needles, and as the day goes on it gets 
     worse.''
       Her salvation is the children she works with, she said, 
     ``They take my mind off it; they have become my healing 
     partners.''
       Otherwise her life continues to be ``an improvisation. I 
     rode a bike the other day. . . .  It was like being six years 
     old all over again, I've gone from feeling like I was 
     battling one-handed, to feeling like I'm conducting one-
     handed. . . . 
       ``It has become pretty easy to crack an egg one-handed even 
     if I do wind up with little bits of shell in my eggs.''

  Mr. LEAHY. We know a lot of our health care system is in crisis. We 
know some of the giants of our health care system would probably like 
this legislation to go through so they can make higher profits. Much of 
our health care system is in crisis. That is what we ought to attack.
  Dramatically rising medical malpractice insurance rates are forcing 
some doctors to abandon their practices or to cross State lines to find 
more affordable situations. Patients who need care in high-risk 
specialties, such as obstetrics, and patients in areas already 
underserved by health care providers, such as many rural communities, 
are too often left without adequate care.
  But this bill does nothing to actually reduce medical malpractice 
insurance rates. Of course, each State has a different experience. 
Insurance remains largely a State-regulated industry because the States 
found that is the way it works best. But each State ought to look at 
and be left to solve their own unique problems. We should not tell 
their Governors and legislatures we are not going to let them solve 
their own problems because we will take it over for them.
  We don't have the kind of crisis in Vermont that others do. We have 
worked very well with our legislature, and we are still working hard to 
find answers, as other States have. You know, it is funny. We hear so 
many speeches that we want to get power out of Washington. We want 
States to be able to do what they want. We don't want Washington 
dictating everything. Well, not exactly. When you get some very wealthy 
contributors and very powerful PACs and say, Yes, but if you don't let 
Washington take care of our special interests, nobody will--suddenly it 
changes.
  This is an attempt to tally points on some election year political 
scoreboard for powerful special interests at the public's expense. I am 
looking at the big picture.
  Some States, such as my own, Vermont, while experiencing problems, do 
not face as great a crisis as others. Vermont's legislature is 
considering legislation to find the right answers for our State, and 
the same process is underway now in other States. In contrast, in 
States such as West Virginia, Pennsylvania, Florida, and New Jersey, 
doctors have walked out of work in protest over the exorbitant rates 
being extracted from them by their insurance carriers.
  Instead of letting States find solutions that are best for their 
citizens, the Republicans prefer this attempt to tally points on some 
election year political scoreboard for powerful special interests, at 
the public's expense. Instead of looking at the big picture--at overly 
broad antitrust immunity, ways to reduce medical errors, and at other 
real issues that could make a real difference--the majority has chosen 
to coddle big insurance companies instead of to cure the problem.
  Instead of letting the States continue to find solutions that are 
best for their citizens, they would take a chainsaw to the legal rights 
of the American people and to the prerogatives of each of the 50 States 
we represent here in the United States Senate.
  Thoughful solutions to the situation will require creative thinking, 
a genuine effort to rectify the problem, and bipartisan consensus to 
achieve real reform. Unfortunately, these are not the characteristics 
of the bill before us. Indeed, S. 2207 is a partisan bill that was 
introduced only a few days ago without any committee consideration.
  Ignoring the central truth of this crisis--that it is a problem in 
the insurance industry, not the tort system--the

[[Page S3764]]

majority has proposed a plan that would cap noneconomic damages across 
the Nation at $250,000 in medical malpractice cases.
  The notion that such a one-size-fits-all scheme is the answer runs 
counter to the factual experience of the States. Most importantly, the 
majority's proposal does nothing to protect true victims of medical 
malpractice and nothing to prevent malpractice in the first place.
  We are fortunate in this Nation to have many highly qualified medical 
professionals, and this is especially true in my own home State of 
Vermont. Unfortunately, good doctors sometimes make errors. It is also 
unfortunate that some not-so-good doctors manage to make their way into 
the health care system as well. While we must do all that we can to 
support the men and women who commit their professional lives to caring 
for others, we must also ensure that patients have access to adequate 
remedies should they receive inadequate care.
  High malpractice insurance premiums are not the direct result of 
malpractice lawsuit verdicts. They are the result of investment 
decisions by the insurance companies and of business models geared 
toward ever-increasing profits as well as the cyclical hardening of the 
liability insurance market. In cases where an insurer has made a bad 
investment, or has experienced the same disappointments from Wall 
Street that so many Americans have, it should not be able to recoup its 
losses from the doctors it insures.
  The insurance company should have to bear the burdens of its own 
business model, just as the other businesses in the economy do. And a 
nationwide arbitrary capping of awards available to victims--as the 
majority has proposed again and again--should not be the first and only 
solution turned to in a tough medical malpractice insurance market.
  The problem at hand deserves thoughtful and collaborative 
consideration in committee to achieve a sensible solution that is fair 
to patients and that supports our medical professionals in their 
ability to practice quality health care. One aspect of the insurance 
industry's business model requires a legislative correction: Its 
blanket exemption from Federal antitrust laws. Insurers have for 
years--too many years--enjoyed a benefit that is novel in our 
marketplace. The McCarran-Ferguson Act permits insurance companies to 
operate without being subject to most of the Federal antitrust laws, 
and our Nation's physicians and their patients have been the worse off 
for it.
  Using their exemption, insurers can collude to set rates, resulting 
in higher premiums than true competition would achieve--and because of 
this exemption, enforcement officials cannot investigate any such 
collusion. If Congress is serious about controlling rising premiums, we 
must objectively limit this overly broad exemption in the McCarran-
Ferguson Act.
  More than a year ago, I introduced the ``Medical Malpractice 
Insurance Antitrust Act of 2003,'' S. 352. I want to thank Senators 
Reid, Kennedy, Durbin, Edwards, Rockefeller, Feingold, Boxer and 
Corzine for cosponsoring this essential and straightforward 
legislation.
  Our bill modifies the McCarran-Ferguson Act with respect to medical 
malpractice insurance, and only for the most pernicious antitrust 
offenses: price fixing, bid rigging, and market allocations. Only those 
anticompetitive practices that most certainly will affect premiums are 
addressed. I am hard-pressed to imagine that anyone could object to a 
prohibition on insurance carriers' fixing prices or dividing 
territories. After all, the rest of our Nation's industries manage 
either to abide by these laws or pay the consequences.
  Many State insurance commissioners police the industry well within 
the power they are accorded in their own laws, and some States have 
antitrust laws of their own that could cover some anticompetitive 
activities in the insurance industry. Our legislation is a scalpel, not 
a chainsaw. It would not affect regulation of insurance by State 
insurance commissioners and other State regulators. But there is no 
reason to continue, unexamined, a system in which the Federal enforcers 
are precluded from prosecuting the most harmful antitrust violations 
just because they are committed by insurance companies.
  Our legislation is a carefully tailored solution to one critical 
aspect of the problem of excessive medical malpractice insurance rates. 
I had hoped for quick action by the Judiciary Committee and then by the 
full Senate to ensure that this important step on the road to genuine 
reform is taken before too much more damage is done to the physicians 
of this country and to the patients they care for. But our legislation 
to narrow this loophole in the Nation's anti-trust laws for medical 
malpractice insurers has languished for more than a year in the Senate 
Judiciary Committee.
  Instead of conducting hearings and a markup on our bill, the majority 
now rushes a ``tort reform'' agenda item to the floor without any 
committee consideration.
  If Congress is serious about controlling rising medical malpractice 
insurance premiums, then we must limit the broad exemption to Federal 
antitrust law and promote real competition in the insurance industry, 
as well as attack this problem at its core by reducing medical errors 
across our health care system. Unfortunately, the partisan bill before 
us is not designed for creating a solution to a serious problem. 
Instead, it is designed purely for politics, and that is not only a 
waste of the Senate's time and of the public's trust; it is also a 
shame.
  Overly broad antitrust immunity, which the insurance companies have, 
allows them to fix prices any way they want, whether it is justifiable 
or not. Antitrust immunity allows them to take their failed investments 
and try to make it up by charging doctors higher malpractice insurance. 
We ought to find ways to reduce medical errors. But the big thing is we 
end up coddling these insurance companies. We don't call them to task. 
We don't get them to say whether they are spending out this money on 
malpractice awards. Of course, they are not. A lot of their losses came 
because they speculated wrong in the stock market. Suddenly, we have to 
bail them out. Get rid of their antitrust immunity, something that 
makes no sense in today's day and age with conglomerates. Make them 
actually say what they base it on. You will find that they are not 
beginning to pay out the amounts their malpractice claims say they are.
  We are fortunate in this Nation to have so many highly qualified 
medical professionals. This is especially true in Vermont. But you have 
to know sometimes good doctors make mistakes, just as sometimes a good 
engineer will make a mistake. But it is also unfortunate that sometimes 
not-so-good doctors manage to make their way into the health care 
system. I think we should do all we can to support the men and women 
who commit their professional lives to caring for others, but we also 
ought to have some way of responding when somebody gets highly 
inadequate medical attention.
  When you have a case, as I said before, like the Levine case in 
Vermont, when you have somebody whose livelihood was playing musical 
instruments and they lose an arm because Wyeth Pharmaceuticals made a 
mistake, then there should be some way to respond. Under this 
legislation, they would not be able to.

  The bottom line is, we have a piece of legislation that is designed 
to be introduced not to improve the question of medical malpractice 
insurance, it is designed not to make hospitals safer, it is designed 
not to make patients safer, it is designed not to save money. It is 
designed to raise money. I guarantee you after the vote on this issue, 
all the fundraising letters will go out: Isn't it terrible, isn't it 
terrible, the Senate is standing in the way of much-needed malpractice 
reform?
  It will not say: There were some in the Senate who were willing to 
stand up and not let the Senate run roughshod over our State 
legislatures.
  It will not say: There are some in the Senate who were willing to 
stand up and say the insurance companies are not telling the truth on 
this issue.
  It will not say: Some in the Senate were saying the very powerful 
contributors to the Republican Party with their $1 million ads are 
wrong and somebody had to say no. It won't say that.

[[Page S3765]]

  But what it will say is the Senate would have wasted another week and 
a whole lot of fundraising letters will go out.


                          Judicial Nominations

  Mr. LEAHY. Mr. President, the thought occurred to me, even though we 
have not done much here in the last few days, the last few months, or 
so, we see a number of people come to the floor and say we have to have 
immediate votes on the handful of the remaining judicial nominations. 
They say there is a handful out there we have to have. Interestingly, 
they are ignoring that 173 judges have already been confirmed, ignoring 
the fact that when Democrats were in control of the Senate we moved 
President Bush's judges through a lot faster than Republicans have. But 
I suppose if they talk enough about it, people will not realize the 
Republicans have moved far slower on President Bush's nominees than the 
Democrats did. But there is another point.
  What they are really saying is that we have to give $163,000 a year 
lifetime jobs to three of the most controversial judicial nominees 
submitted by President Bush. To hear them talk, one would think this is 
the number one priority on the part of the American people: is giving 
three judges--highly controversial, highly political, highly 
ideological--a lifetime job paying $150,000, $160,000, $170,000 a year.
  Frankly, I think a lot more people are worried about the millions of 
Americans who have lost their jobs and the millions more who worry they 
are going to be the next victims of outsourcing. I think that is really 
what is on the mind of the American public, not three more highly paid 
lifetime judicial appointments. They are far more worried about the 
millions of Americans who are out of jobs, millions of Americans who 
are seeing their jobs go to India and everywhere else, and millions of 
American families where both mother and father bringing in paychecks 
are barely making the mortgage. They are not the ones getting the 
$160,000 a year lifetime jobs.
  For the public and for the Democratic Members of the Senate, our 
higher priorities right now have to do with the millions of Americans 
who are trying to find or keep their jobs. Our higher priorities have 
to do with securing adequate health care for the members of our 
National Guard and Reserves. Our priorities have to do with getting 
decent health care for our veterans and our service men and women who 
have brought the injuries home from service in Afghanistan and Iraq.

  To be charitable, these crocodile tears about judicial nominations 
are just a tad disingenuous. Let's review the record.
  The earlier Democratic-led Senate confirmed more Bush judicial 
nominees than the Republican-led Senate has. We confirmed 100 of the 
173 Bush judicial nominees. Democrats actually did better for the 
President than the Republicans have.
  So 173 have been confirmed. Six of the most controversial have been 
blocked. Two of them have been unilaterally appointed by the President 
during Senate recesses. One has withdrawn to rejoin a lucrative job 
with a law firm. So three were blocked. I have never heard so many 
tears shed for these three. I don't see any tears shed for the millions 
of Americans out of work. I don't see any tears shed for the millions 
of Americans whose jobs are being outsourced, but one would think that, 
with these three, the whole Nation is collapsing.
  The irony is the same people coming down here to the floor and crying 
about these three, sobbing about these three, did not say one word when 
they blocked 61 of President Clinton's nominees. They blocked 61, and 
you would think the sky is falling because we stopped three. Oh, give 
me a break.
  Let's look at what they do not want to do. During the past two weeks, 
we have wasted so many hours in quorum calls and cloture votes to serve 
the Republican leadership's goal of avoiding votes on votes that will 
help American families. The Republican leadership is blocking a vote on 
raising the minimum wage. They are blocking a vote on extending 
unemployment benefits. They are blocking a vote on protecting people 
from the new overtime regulations of the Department of Labor. Why?
  During these past two wasted weeks, 687,000 more Americans filed 
first-time claims for unemployment insurance, yet Republicans are only 
talking about three jobs. Give me a break. I suspect the reason they 
are talking about these three is because they do not want the American 
people to know they blocked unemployment benefits, they blocked raising 
minimum wage, they blocked protecting overtime compensation. These are 
the people who actually have to go out and pay their mortgages. These 
are the people who actually try to figure out how they are going to pay 
to send their children to school. These are the people who live from 
paycheck to paycheck.
  I say they blocked the Senate from extending unemployment benefits. 
According to figures recently released by the Labor Department, the 
unemployment rate held steady at 5.6 percent because hundreds of 
thousands of people stopped looking for work. They could not find work. 
This has left too many unemployed Americans without benefits for 
months.
  They call it an economic recovery. It is a jobless economic recovery 
if it is an economic recovery at all because millions of Americans 
still cannot find jobs. Our law gives them 26 weeks of unemployment 
benefits, and up until the last day of 2003, if you were still looking 
for a job, our law would offer a 13-week extension. We tried to make a 
13-week extension. Can we do it? No. Do you know why? Because the 
Republican leadership will not even allow us to vote on it. Are they 
afraid that maybe some of their own Members might now be feeling more 
compassion for these millions of Americans who are out of work than 
they do for three lifetime appointments?
  Which priorities are they serving? Apparently not most working 
Americans. They would not even allow a vote on the Cantwell amendment.
  Then we tried to raise the minimum wage. Why now? The last minimum 
wage was signed into law by President Clinton almost eight years ago. 
While they are caterwauling about a $160,000 lifetime job for three 
nominees, do they really believe that families could meet their basic 
needs on a minimum wage of just $5.15 an hour? The people who are 
making $5.15 an hour are real Americans, and the Republicans will not 
even allow us to vote for the first time in eight years to raise the 
minimum wage. The purchasing power of today's minimum wage is already 
below that of the minimum wage before 1996. To save the same purchasing 
power as it had in 1968, the minimum wage would need to be $8. Even in 
Vermont, where our state leaders have helped working Vermonters earn 
wages that are somewhat more livable, the minimum wage is still worth 
less than it was 35 years ago.
  More people are out of work, underemployed, and struggling to keep 
roofs over their family's heads and food on the table than at any time 
since the administration of Herbert Hoover. Today there are more 
economic pressures squeezing them, with health care costs becoming 
unaffordable and gasoline prices reaching the highest level in my age. 
Despite the millions of American families with children who would 
directly benefit from a raise in the Federal minimum wage, Senate 
Republicans blocked a vote on the Boxer-Kennedy amendment to the 
welfare bill that would raise the minimum wage to $7 an hour in three 
steps over a 2-year period.
  The Republican leadership is also blocking the Senate from making 
sure hard-working Americans are fairly compensated for working 
overtime. The Bush administration will soon be releasing final 
regulations changing the Federal rules on overtime pay. They will cut 
eight million middle-class Americans out of the ability to earn 
overtime pay.
  We give tens of thousands of dollars in tax breaks to the people who 
go to these large fundraisers, but we take away overtime for eight 
million Americans who are barely making it? In fact, the regulations 
are so slanted against American workers that they will include a list 
of cost-cutting suggestions for big businesses to show them precisely 
how they can avoid paying overtime compensation to workers not singled 
out in the rules.
  Bipartisan majorities in both the Senate and in the other body oppose 
what the Bush administration wants to do in taking away overtime pay 
from eight million Americans, but this year

[[Page S3766]]

the President threatened to veto the Omnibus appropriations bill if it 
included provisions to overturn the overtime regulations. After all, 
too many people who attend these large fundraisers have been told we 
will find a way for them to take those eight million workers off the 
overtime rolls. And unfortunately the Republican leadership in this and 
the other body said, yes, Mr. President, if you want to take those 
eight million off, we will go along with you, we will take them off.
  Of course, we want to have another vote, a vote on the Harkin 
amendment, to express our disapproval of the labor regulations, either 
vote it up or down. After all, the Republicans are in the majority in 
this body. If they want to approve of the move of the administration of 
President Bush to deny overtime pay to eight million Americans, then 
they can vote and say they agree with it. We want a vote one way or the 
other, but they will not allow the vote. They are blocking that vote.
  So I think we ought to talk about real people, people who live from 
paycheck to paycheck. We ought to talk about the votes that are being 
blocked to extend unemployment insurance, the votes that are being 
blocked to raise the minimum wage, the votes that are being blocked 
that might allow them to collect overtime pay for overtime work. One 
can imagine in the corporate boardroom they suddenly say, wait a 
minute, we could just have somebody work another 20 hours and we do not 
have to pay any overtime, we do not have to hire extra people, man, 
this is wonderful for us. And they can talk about it when they go out 
to the golf club.

  We ought to ask, where are the priorities of the American people? 
Where are the Democratic priorities in the Senate? Where are the 
Republican priorities in the Senate? Should our top priority be right 
now to find good six-figure jobs for a handful of the President's most 
controversial activist judicial nominees, or should we give our time 
and attention to the millions of Americans living paycheck to paycheck 
who need help, the eight million Americans who are suddenly going to 
find they cannot earn overtime pay, and millions of Americans who have 
not had a raise in the minimum wage for eight years?
  I think the priorities of the Democratic Members of the Senate are 
the people's priorities. Unfortunately, the priorities of my friends on 
the other side seem to be the priorities of the very privileged few.
  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. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, we all know we are likely to pass only a 
few major tax bills this election year, and we know one of the most 
important tax bills is the jobs in manufacturing bill that comes up for 
a cloture vote tomorrow. We know the only way the JOBS in manufacturing 
bill can pass is a ``yes'' vote on the motion to stop debate or, as we 
call it in the Senate, cloture. That vote will be tomorrow.
  Once again, we must ask, will the Democrats say no to cloture? Will 
they say no to stopping debate? Will they refuse to allow us to get to 
finality on this very important bipartisan legislation that when it 
comes to a final vote will overwhelmingly pass in the Senate? Will they 
go on record opposing the provisions that are in this bill? Democrats 
should not because this is a bipartisan bill. This is a bill that every 
Democrat member of the Senate Finance Committee voted yes on to report 
it from committee.
  Keep in mind that the jobs in manufacturing bill could be the last 
train out of town this year. It has to get done if we are going to end 
the sanctions and tariffs that have been put on U.S. exports to Europe 
as a result of the United States not following our own trade 
agreements.
  Each time a Member votes against stopping debate, it lessens the 
chance that this bill is going to go forward. In fact, it kills off 
many good measures in the jobs in manufacturing bill. From the very 
beginning, this bill was overwhelmingly bipartisan. In fact, there was 
a bipartisan agreement that we need to pass this bill because there is 
a bipartisan agreement of long standing that the United States agrees 
to international trade agreements, and we have an obligation to do our 
part and live up to those agreements.
  A ``no'' vote on this motion tomorrow is an obstruction to the 
bipartisanship that is expressed in the language of this bill.
  I would like to briefly go through some of the measures that are in 
this jobs in manufacturing bill. What I am going to refer to is what a 
lot of Members of both political parties have asked for the 
consideration of by my committee and for inclusion in the language of 
this bill. I will go over what is in this bill and sincerely ask why 
the Democrat leadership is willing to tell its members to kill the bill 
by voting no to stopping debate.
  This bill will end $4 billion a year of sanctions against the United 
States and our exports. As of March 1, those sanctions are being 
imposed against U.S. exports of grain, timber, paper, and manufactured 
goods.
  You will later hear my comments on the products that are being hit 
right now by sanctions. I think each Member ought to know how this is 
affecting the economy of their district.
  First, manufacturing jobs are good jobs in America. They pay 15 
percent above the national average. If jobs are related to exports, 
there is a tariff on your exports in another country and we aren't 
competitive, those jobs aren't going to exist very long.
  Think about what that would do in Waterloo, IA, for one-fifth of the 
tractors that come off the assembly line being exported. We couldn't 
afford to lose one-fifth of the jobs at John Deere in Waterloo, IA, 
because of these tariffs.
  We can end the sanctions that are in this bill, but will the 
Democrats say no to cloture so we don't end sanctions?
  This bill provides $75 billion of tax relief to our U.S.-based 
manufacturing sector to promote factory hiring here in the United 
States. It is not going to benefit corporations for that portion of 
their manufacturing overseas.
  Will the Democrats say no to $75 billion worth of help, and help 
create jobs in factories in America, particularly considering the fact 
that every day you hear comments about outsourcing, and they expect us 
to do something about outsourcing? This bill will do something about 
outsourcing.
  The jobs in manufacturing bill extends the research and development 
tax credit through next year. This is a domestic tax benefit that 
generates research and development in the United States. That 
translates into good high-paying jobs for workers in the United 
States--not overseas. The amendment we had on research and development 
passed overwhelmingly with a bipartisan vote.
  Why would Democrats say no to a bipartisan provision in this bill? 
Will they? I hope not.
  The jobs in manufacturing bill extends for 2 years many tax 
provisions that expired either last year or are going to expire this 
year. This would include items such as a work opportunity tax credit 
and the welfare-to-work tax credit and make the merger of those credits 
permanent. Senator Bayh and Senator Santorum asked for these 
provisions, and we included them. Will these Senators vote for cloture? 
They should.
  Senator Breaux and Senator Snowe asked for a provision that allows 
naval shipbuilders to use a method of accounting which results in more 
favorable income tax credit treatment. We included that provision in 
this bill for Senator Breaux and Senator Snowe. They each have reasons 
to vote for cloture to get these amendments to the President for his 
signature.

  There are enhanced depreciation provisions to help the ailing airline 
industry. Senator Lincoln, Senator Brownback, and Senator Roberts asked 
for these provisions. I hope they will vote to stop debate tomorrow so 
we can get to finality on this legislation.
  There are what is referred to as new homestead provisions. These were 
requested by Senator Dorgan, Senator Baucus, Senator Thomas, Senator 
Enzi, and Senator Crapo. I hope these Senators will vote to stop debate 
so

[[Page S3767]]

what they have asked me to do can get to the President for his 
signature.
  There are rural development provisions to create businesses in 
counties that are losing population. For example, they provide 
incentives for starting or expanding rural businesses in a rural 
outmigration county when it hits a certain percentage of outmigration.
  At the request of Senator Dorgan, we also included a new market tax 
credit for high outmigration counties. These credits help economic 
development in rural counties that have lost over 10 percent of their 
population.
  There is only one way this homestead and the new market provisions 
can become law; that is, to have the Senate stop debate. That takes 60 
votes.
  For Senators we have tried to work with to get their provisions 
included, if they aren't willing to help stop debate and move this bill 
along, why would they even ask me to include provisions in the bill if 
they do not want this bill to move along?
  The jobs in manufacturing bill includes brownfields revitalization 
which was requested by Senators Lautenberg, Dole, and Inhofe. The bill 
helps tax-exempt investors that invest in the cleanup and remediation 
of qualified brownfields sites.
  I hope those Senators who asked me to include their provisions in my 
bill will decide they should vote to stop debate. Without getting over 
that hurdle, you never get to final passage.
  Senators Bob Graham, Breaux, and Hatch asked us to include the 
mortgage bonds revenue measure. It would repeal the current rule that 
doesn't allow revenue bond payments to be used for issuing new 
mortgages.
  There are 70 cosponsors of this bill. The 70 Members who took time to 
study this provision on mortgage revenue bonds and signed it surely 
want this bill to become law. Otherwise, why would they put their 
signature on it? That means that tomorrow those 70 Senators ought to be 
stopping debate so we can move on to finality.
  Another provision is allowing a deduction for private mortgage 
insurance. This was asked for by Senator Lincoln and Senator Smith. It 
benefits people struggling to afford a home. I hope no one votes 
against their idea. Home ownership is the dream of all Americans. It is 
the American dream. This provision helps that along a little bit.
  Some might say we have the highest percentage of home ownership this 
country has ever seen at 68 percent. Yes. But what about the other 32 
percent? This might help some of those people who might not otherwise 
be able to afford a home.
  In most cases, you have to buy mortgage insurance. If you buy 
mortgage insurance, it costs money for lower income people who are on 
the edge of owning a home or not owning a home. This might just help 
them get their loan through. But a vote against cloture would be a vote 
against this deduction that might bring the American dream to a few 
more young people.
  Our bill includes the tax credit for employers for wages paid to 
reservists who have been called to active duty. Senator Landrieu and 
Senator Allen asked for this provision. I hope we will have their vote 
tomorrow, if they are serious about helping our guardsmen and 
reservists who have been called to action because of the war on 
terrorism. Otherwise, what is the point of asking me to put this in the 
bill if they are not helping us to move it to finality?
  At the request of Senator Schumer and Senator Clinton, we have 
extended and enhanced the Liberty Zone bonds provided for the 
rebuilding of Lower Manhattan. We also included $200 million in new tax 
credits to be used for rail infrastructure projects in the New York 
Liberty Zone; again, responding to the needs of the people in New York 
because of what happened on September 11. These two Senators came to me 
and asked for consideration of these provisions in this bill, and in a 
bipartisan way, we try to do things and we have responded accordingly.
  Are they serious about getting these provisions into law for their 
New York constituents? If so, then they ought to vote for cloture and 
move this bill to finality.
  We even included the renewable communities provisions requested by 
Senators Clinton and Schumer.
  Will the Senate Democratic leadership ask their members to vote 
against Liberty Zone funding for meeting the needs of the people of New 
York by voting no on cloture? We should not deny funding for the 
Liberty Zone just to prove a political point on a proposed labor 
regulation that may never be finalized in the first place. Even if it 
is finalized, Congress can always overturn it under the Congressional 
Review Act.

  Hundreds of regulations are proposed in Washington every week. Very 
few make it to the finish line. So why is the Democrat leadership 
holding up funding for the Liberty Zone over a proposed regulation? 
This is not responsible governance. This is not responsible opposition. 
There is a legitimacy in our form of government, one party being in the 
opposition and the other party being in the majority. They play a very 
important role in making people responsible. Do we hold up every piece 
of legislation because it is an election year and Members think next 
year they might be in a majority, so they can do what they want to do?
  All of these requests that are made to me, why not hold them up until 
next year? Then I would not have to be considering them at this point. 
If they are important, we ought to move this legislation along. In 
other words, we should have responsible opposition in the process of 
everybody making their points.
  The Liberty Zone needs our help, and we need to behave as adults and 
get this bill completed.
  In the jobs in manufacturing act we increase small business 
industrial development bonds to spur economic development in rural 
areas. This was requested by Senator Pryor and Senator Thomas. I hope 
they will vote for cloture tomorrow.
  We have bonds for rebuilding school infrastructure. These were 
requested by Senator Conrad.
  We have included tribal bonds in the jobs in manufacturing bill, 
requested by Senator Campbell and Senator Johnson. I am sure this is 
supported by Senator Daschle, as well, because he has a record of 
supporting Native American projects. These bonds allow the same rules 
that apply to tax-exempt bonds for State and local governments to apply 
to Native American tribes issuing tax-exempt bonds to finance 
facilities on their reservations. That is just an explanation, not 
something new. In other words, if it is good for one State and local 
government, why shouldn't it be good for the governance of our tribes?
  We have included tribal school bonds, again, as requested by Senator 
Johnson and Senator Campbell. Under current law, there is no class of 
bonds designated for the purpose of encouraging school construction on 
Indian reservations. This provision fills that void. We have a tribal 
new markets tax credit which was added at the request of Senator 
Daschle and Senator Campbell. This amendment adds $50 million a year to 
economic development on reservation land.
  Will the Democrat leadership tell Democrats to vote against closing 
debate and kill these Native American measures? Again, if they do not 
want to get it done, why did they come to me and ask for me to include 
these things?
  We have also included the Civil Rights Tax Fairness Act. This is at 
the request of Senator Bingaman and Senator Collins. This is very 
important.
  We have Senator Conrad and Senator Santorum and Senator Bunning 
asking we add a change in section 815 of the Tax Code. The provision 
suspends applicable rules imposing income tax on certain distributions 
to shareholders from the policyholder's surplus account of a life 
insurance company. This is included in the bill.

  We have a special dividend allocation rule that benefits farmers' 
cooperatives. Senator Lincoln and Senator Coleman asked it be included.
  We have other farm provisions that give cattlemen tax-free treatment 
if they replace livestock because of something beyond their own 
control, such as drought, floods, or weather-related conditions. 
Senator Daschle and Senator Thomas asked for that.
  At the request of Senator Cantwell and Senator Thomas, we included a 
provision that allows payments under the National Health Service Corps 
loan repayment program to be exempt from tax. This is an important 
measure to enhance the delivery of medical services in rural America.
  We included the passenger rail infrastructure tax credits at the 
request of

[[Page S3768]]

Senator Carper. It provides $500 million for intercity passenger rail 
capital projects. We also included the short-line credits requested by 
Senator Smith and Senator Brownback.
  At the request of Senator Rockefeller and Senator Hatch, we added a 
provision to allow taxpayers to apply their bonus depreciation against 
the alternative minimum tax credits. This measure is very important to 
the steel mills of West Virginia; hence, Senator Rockefeller.
  A provision benefiting Oldsmobile dealers was included at the request 
of Senator Baucus and Senator Bingaman. The proposal provides tax-free 
treatment for Oldsmobile dealers because their franchise is being 
terminated.
  How many times have we heard Members talk about the need to make 
broadband available in rural communities? We know it is essential to 
the economic competitiveness of rural America, particularly since we 
see so many Asian companies, so far in advance of the United States in 
broadband. To keep our economy competitive, it ought to be here. But we 
also know many Democratic Senators support this. It is, likewise, in 
the bill.
  Senator Murray and Senator Smith asked for the forest industry bond 
provisions in this bill. That allows nonprofits to use tax-exempt bond 
financing to acquire forest land, to achieve better balance between the 
goals of conservationists and the timber industry. Up to $1.5 billion 
in bonds may be issued under this program. That, sir, is a lot of 
conservation money.
  At the request of Senator Boxer, we have included a proposal that 
would allow employers to take a 50-percent tax credit against the FICA 
taxes for wages paid to the first responders who are called to active 
duty. We added a second measure at Senator Boxer's request. This 
proposal would allow farmers and ranchers to take a 30-percent credit 
for the installation of irrigation equipment which reduces water use. 
The credit would be limited to land that has received drought 
assistance during the past 3 years.
  Anyone who votes against cloture is voting to kill all the items I 
just listed. Why would people come to me as chairman of the Senate 
Finance Committee and ask me to include provisions in the bill if they 
do not want to get this bill to the President for signature? Tomorrow, 
they have their chance.
  We had debate extended on this bill 2 weeks ago, and we had a vote to 
stop debate. Debate was not stopped. So tomorrow we vote again. We have 
to get over this hurdle to get all these provisions that have been 
requested in this bill and to get it to the President for his 
signature.
  I hope Members are sincere about all this legislation that is 
introduced. I hope Members are sincere in telling me how important 
their amendments are to this bill. I hope Members will show that 
sincerity tomorrow when we have a chance to stop debate and complete 
this bill.
  All the beneficial provisions I have just discussed are being held 
hostage this minute because the Democratic leadership is pushing for a 
vote on an issue that is not even in this bill. The vote is an attempt 
to embarrass the administration in an election year about a proposed 
labor regulation on overtime. The Democrats said the regulation was 
going final, and they had to add it to the jobs in manufacturing bill; 
otherwise, they would block this bill. That was 2 weeks ago. The 
regulation is still not final. And who knows, the way bureaucracy 
moves, it may never be final but continue to tilt at windmills, and 
what will come.
  But it seems to me that it is politics all the time. It is politics 
from the Democrat leadership, and it is obstructing an important piece 
of legislation. More importantly, right now, it is obstructing 
legislation that most of the members of the other party have asked me 
to include in this bill. Now, why do you ask me to include it in the 
bill if you are not going to vote to get the bill to the President? 
This sort of obstructionism is inexcusable because we have worked hard 
throughout this process to make sure that everyone's concerns--both 
Republican and Democrat--were incorporated into this bill. Why? Because 
I know you do not get anything done in this body that is not 
bipartisan.
  People who want to be partisan can be partisan, but they are not 
going to get done what they want done either. So you bring the Senate 
to a standstill. We have tried, in the spirit of bipartisanship, to 
respond. This legislation and all these amendments included are 
responding to that bipartisanship. You see that effort in the 
amendments I just listed.
  But if it were not overtime, it would be something else to obstruct 
this bill. It could be the minimum wage; it could be trade adjustment 
assistance for services; it could be some kind of health care issue--
anything to block the jobs in manufacturing bill at the very same time 
people on the other side of the aisle are complaining because we are 
not doing enough to stop outsourcing. This bill will help do that.
  It is all about the Democratic leadership keeping the European Union 
sanctions in place to drive down the economy, because if the economy is 
not very good this fall, they think they have a better chance of 
electing their people. This is outrageous when you consider the 
bipartisan history of this jobs in manufacturing bill.
  The JOBS bill is a completely bipartisan bill. Construction of the 
bill began when Senator Baucus was chairman of the Finance Committee in 
2002. Senator Baucus and I have always worked with our Finance 
Committee colleagues on the bipartisan development of this Foreign 
Sales Corporation/Extraterritorial Income Act repeal and also the 
international tax reform provisions of this bill.
  Let me emphasize, there is not one provision in this JOBS bill that 
was not agreed to by both Republicans and Democrats. I have already 
said, every Democrat in the committee--all 10 of them--voted for this 
bill to be reported out of committee. We have acted in good faith to 
produce a bill that protects American manufacturing jobs and to make 
our companies globally competitive--the same thing you hear Senator 
Kerry speaking about on the campaign trail, about making our 
corporations competitive. In fact, he even has a proposal that would 
reduce corporate taxes the same way we do.
  Let's get on with the business at hand and finish this bill; vote for 
cloture tomorrow, stop debate, put this bipartisan jobs in 
manufacturing bill ahead of partisan politics. Then we can show the 
people of this country that the adults are in charge of the Senate, and 
we can get the JOBS bill--creating jobs in manufacturing--out of the 
Senate and eventually to the President.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from Mississippi.
  Mr. LOTT. Mr. President, I appreciate the chairman's comments on the 
need to move this legislation forward.
  Mr. President, let me just inquire in terms of parliamentary 
procedure, are we open for general debate?
  The PRESIDING OFFICER. We are on the motion to proceed. There are no 
limits on debate.
  Mr. LOTT. Thank you, Mr. President.
  I did come to the floor last week and speak to the need to move this 
very important jobs growth, FSC/ETI issue and not have a filibuster and 
complete our work. If we do not, we are going to see that we are going 
to be hit by a continuing increase in fines by the European Union 
because we are not complying with the World Trade Organization ruling 
of over a year ago.
  I also said we stand to benefit from the tax proposals in this 
legislation, and I urged that we complete this work. In fact, I said we 
have no alternative but to complete this work. I am glad the leadership 
is going to continue to push this issue because we must get it done.
  I do want to say now that I understand that perhaps a decision was 
made to attach tax provisions from the Energy bill to this bill, and I 
think that was a mistake. I am going to have to review what that means 
in terms of my own vote. Instead of helping move this legislation, and 
other legislation, it may have complicated both of them. But I hope we 
can find a way to get this done.
  Mr. President, the reason I came to the floor this afternoon, though, 
was to speak in support of S. 2207, the Pregnancy and Trauma Care 
Access Protection Act of 2004. We have a health care crisis in America. 
Health care is becoming more and more difficult to obtain, to afford, 
and to be assured that it is the quality that you might need. In rural 
States such as mine and Senator Grassley's State of Iowa, the

[[Page S3769]]

issues of access and distance, or being able to get trauma care or care 
from obstetricians and gynecologists, present real problems.
  I also think we have to acknowledge that the cost is becoming more 
and more difficult and more and more prohibitive. The cost of health 
care insurance continues to go up. The cost of medical liability 
insurance continues to go up. When you talk to trauma emergency care 
doctors, when you talk to OB/GYNs, they are paying $85,000, $100,000, 
$125,000 for medical liability coverage. How much will it be? There is 
no limit?
  There is no question, in my mind, many of these doctors are now 
practicing what we would describe as defensive medicine. They are 
prescribing additional procedures. They are taking extra precautions to 
make sure they do not get sued. That, by the way, continues to drive up 
the cost of health care. So it has become a big problem in this 
country.
  Escalating jury awards and the high cost of defending lawsuits, even 
the frivolous ones, are increasing medical liability premiums 
nationwide, and they are having devastating effects on the health care 
of millions of Americans. Medical specialists, including neurosurgeons, 
obstetricians, and emergency physicians, are being forced to cut 
services, retire early, or move their practices to other States.
  This past Saturday night, I was in Augusta, GA, for an event for 
Congressman Norwood, a Congressman who has been very much involved in 
patients' rights and health care issues. I was informed that one of the 
neurosurgeons in Augusta recently moved from my State of Mississippi. 
It is not an isolated incident. It is a pattern. Augusta has several 
neurosurgeons. Mississippi has a declining number, even in places where 
they are needed to provide trauma care services in larger metropolitan 
areas.
  Nineteen States are in full-blown medical liability crisis now, and 
25 States are showing signs of crisis. Only 6 States are considered 
stable, each of which has instituted reforms.

  Ninety-eight percent of osteopathic students acknowledged in a recent 
survey that medical liability issues will influence their future career 
decisions. Seventy-three percent say medical liability issues will 
``significantly'' influence their decisions--in other words, where they 
practice, whether they practice, and what kind of medicine they 
practice.
  Medical liability costs the Federal Government well over $50 billion 
per year. The source of that information is the Department of Health 
and Human Services. I have heard the discussions over the years: Well, 
you guys from Mississippi, and other similar States, have always talked 
about the States should deal with these issues. This is a States rights 
issue. It is a State problem.
  Let me tell you what: When it costs the Federal Treasury $50 billion, 
this is a national problem. This is not just a problem in Mississippi, 
Alabama, Arkansas, or Iowa; it is a nationwide problem. Very few 
States--even those that have passed medical liability reforms--have 
been able to stem this tide of abuse and costs that are really causing 
difficulties in a number of States and in the health care of this 
country. So we have to do something.
  Here we are in the Senate with this crisis looming out there that 
affects children, babies, mothers, elderly, emergency care needs; all 
of them have been held up while the Senate cannot even proceed to 
debate the legislation. That is what we have here, the motion to 
proceed. That is indefensible. How could we not at least take this 
issue up and have a full discussion about its dire consequences?
  Let's talk a little bit about what the bill does. This is not 
something that just popped out of a committee or hasn't been thought 
through clearly. This issue has been pending for a long time. Some of 
the legitimate concerns have been addressed.
  The bill provides reasonable guidelines to govern liability claims 
related to the provision of obstetrical, gynecological, emergency and 
trauma care goods and services. I want to emphasize, this is a limited 
bill. This is not all medical professions. This is targeted to those 
people who treat us when we are in the greatest need of health care, 
when we are going into an emergency room or a trauma facility as a 
result of an automobile accident, or doctors who deliver and look after 
our children and the mothers of those children. Can we not at least 
provide some medical liability reform and protection there so we can 
keep these doctors in the practice?
  More and more in my State and all across the country doctors who have 
in the past practiced obstetrical and gynecological work are dropping 
the obstetrician part because they are being sued. The insurance is 
becoming prohibitively expensive in terms of the cost it is putting on 
these doctors.
  The bill sets a statute of limitation of 3 years after the date of 
manifestation of an injury or 1 year after the claimant discovers or 
should have discovered the injury. That is reasonable. You can't say 5 
years later: I had a problem back there. It says you have to exercise 
your right within 3 years or 1 year after you discovered it.
  It allows recovery of unlimited economic damages, but it limits 
noneconomic pain and suffering damages to $250,000. This is obviously a 
place where some restraint needs to be employed. This is where certain 
juries in certain counties in certain States, mine included, have been 
rendering multimillion dollar decisions for pain and suffering. I think 
some reasonable limits there clearly would be appropriate.
  This bill allows the court to restrict the payment of attorney 
contingency fees by applying a percentage scale based on the amount of 
the judgment. These lawsuits should not be about attorneys' fees. The 
lawsuits should be about medical costs and medical liability. What is a 
reasonable recovery when you do in fact have some legitimate claims?
  Don't get me wrong. I do think in the American system of 
jurisprudence, you have a right to take your grievance to court. I 
would defend that. I am an attorney. But I do think the system is being 
abused, and it has become more about attorneys' fees than it has the 
injuries that were incurred.
  The bill sets out qualifications for expert witnesses. Again, that is 
an area where there have been some abuses I am personally familiar 
with. It permits courts to reduce damages received by the amount of 
collateral source benefits to which a claimant is entitled; in other 
words, money paid by another entity such as a health insurance 
provider.
  It authorizes the award of punitive damages only where a high 
standard is met of clear and convincing evidence that a defendant acted 
with malicious intent to injure or deliberately failed to prevent 
injury that was certain to occur.
  This is very good legislation. It is targeted. It is limited in the 
impact it would have on restricting the coverage, but also it is 
limited to these particular areas of specialty I have noted.
  Let me go to my own State of Mississippi, since our State is really 
being adversely affected by these medical liability cases. It is one of 
those States which has been described as a judicial hellhole. I don't 
like to hear that. When various entities identify my State in that sort 
of way, I resent it. Even if they are right, I don't like to hear it. 
But there is no question we have had lots of problems in my State of 
Mississippi. We have had a tremendous explosion of lawsuits in this 
health care area, very large verdicts. Physicians who are practicing in 
Louisiana, Mississippi, Texas, and West Virginia can clearly 
demonstrate how medical lawsuits have hurt our health care system. The 
doctors will tell you about that.
  A recent survey that was done by the American Tort Reform 
Association, in cooperation with other groups such as the Mississippi 
State Medical Association, points out 84 percent of the physicians 
surveyed report they are very concerned about the effect of medical 
litigation on the practice of medicine. Eighty-one percent report they 
have changed the way they practice medicine because of litigation 
concerns. That means more cost. That is what I was referring to at the 
beginning. They have been requiring and prescribing more and more 
procedures to protect themselves against these lawsuits. And by the 
way, in many instances, the procedures are not necessary and not 
required medically. They are required to defend yourself against a 
frivolous lawsuit.

[[Page S3770]]

  Eighty-six percent of the physicians believe states with a liability 
crisis like Mississippi increase medical malpractice insurance costs. 
And the list goes on. There is no question it is creating a real 
problem.
  Again, specifics: Half of my State's 82 counties now have fewer 
physicians to treat patients than were available in 2001. Mississippi 
has fewer physicians per capita than 48 other States. So when we lose a 
physician, it really hurts because we already are in dire straits. In 
16 Mississippi counties, the numbers of physicians remained unchanged 
from 2000 to 2002, but the population in those counties increased 
during the same period. The population growth in 62 percent of 
Mississippi counties outpaced a stagnant or decreasing base of 
physicians to treat those patients. The source of this information is 
the Mississippi State Medical Association.
  Approximately 100 doctors have left or plan to leave the State of 
Mississippi. The source of that information is a Time magazine article 
of June 9, 2003.
  Mississippi had a net loss of 73 physicians in 2002. The number of 
physicians licensed in the State in 2001 was 5,710. But in 2002, this 
number had dropped to 5,637. Since the population is increasing, since 
we have certain areas of the State that have experienced tremendous 
growth, you would think we would be increasing the number of physicians 
per capita. The numbers are going in the wrong direction.
  I ask unanimous consent that other statistics I have about what is 
happening in my own State be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       This net loss of 73 physicians is all the more disturbing 
     because the total number of physicians licensed in 2002 
     actually includes 414 newly licensed doctors--meaning that 
     there were approximately 500 doctors practicing in the state 
     in 2001 who were not practicing in the state by 2002. The 
     source of my information is a Mississippi State Medical 
     Association news release of August 14, 2002.
       Furthermore, another disturbing trend is the decrease in 
     the number of medical licenses that are being issued each 
     year. In 2000, the medical board issued 470 new licenses; in 
     2001 the number was 456; and in 2002 the number was 414. The 
     number of new licenses dropped steadily by 39 percent from 
     1997-2002. The source of my information is a Mississippi 
     State Medical Association news release of August 14, 2002.
       Mississippi can't afford to lose doctors when the state's 
     population increased by 271,442--or 10.5 percent--
     between 1990 and 2000. The State population of 2,573,216 
     in 1990 grew to 2,844,658 in 2000. The source of this 
     information is the U.S. Census Bureau.
       Only two neurosurgeons remain in practice on the 
     Mississippi Gulf Coast, and general surgeons are in short 
     supply because of the state's medical liability crisis. 
     ``Everybody is reduced to the same low level of trauma care 
     that we had 20 years ago,'' said Steve Delahousey, vice 
     president of operations at American Medical Response 
     ambulance service. My source is the Biloxi Sun Herald, Jan. 
     29, 2003.
       Increasing costs of medical liability insurance has reduced 
     the number of neurosurgeons in the State by one-third, 
     creating holes in the State's trauma system. My source is the 
     Greenwood Commonwealth, April 25, 2003.
       One major medical liability insurer, St. Paul Cos., has 
     withdrawn from the Mississippi market, forcing as many as 
     1,000 physicians to find other insurers. My source is the New 
     Orleans Times Picayune, February 2, 2003.
       In Cleveland, MS, three of the town's six OB-GYNs have 
     stopped delivering babies. Yazoo City's 14,500 residents have 
     no OB-GYNs. According to the Mississippi State Medical 
     Association, insurance rates for OB-GYNs have increased 
     from 20-400 percent in the previous year. My source is the 
     Mississippi State Medical Society.
       Loss of doctors at Gulfport-Memorial: As of summer 2003, 
     Gulfport-Memorial had 24 hour neurosurgery coverage, and now 
     they have no neurosurgery coverage at all; had 6 
     neurologists, and now have 1; had 6 orthopaedic surgeons, and 
     now have 3; had 3 vascular surgeons, and now have 2; had 9 
     OB-GYNs, but 2 retired due to malpractice insurance crisis, 
     and now have 7. The source of my information is Dr. Arthur 
     Matthews.
       ``Nursing homes in Mississippi have been faced with 
     increases in total premiums as great as 900 percent in the 
     past two years. Since Medicare and Medicaid pay most of the 
     costs of nursing home care, these increased costs are borne 
     by taxpayers, and consumer resources that could otherwise be 
     used to expand health (or other) programs.'' The source of 
     this information is a HHS medical litigation report, March 3, 
     2003.

  Mr. LOTT. I want to make this point. We used to have several, then we 
had three, now we have one insurance company that is providing medical 
liability insurance in my State of Mississippi. This is a problem that 
is of great concern to leaders in the State of both parties, in the 
medical profession, in the business world, and those of us who are 
trying desperately to advance the State economically and have had some 
success bringing major industries into the State. While a major 
industry may want to know, do you have a good interstate system, do you 
have international airports, good schools, can you provide affordable 
housing, they don't always immediately ask about the accessibility of 
hospitals and do you have the doctors who are needed, but that is a 
question that eventually they come to. It is one that will affect us in 
the future if we don't do something about it.
  Let me tell you what it means when you don't have the doctors you 
need. I want to give some specific examples.
  Tony Dyess of Vicksburg, MS, received serious head injuries in a car 
accident on July 5, 2002. Since a specialist in brain injuries, or 
neurosurgery services, was not available in Gulfport, MS, he had to be 
airlifted to another hospital which led to Tony having permanent brain 
damage and no longer having the ability to care for himself or to have 
a job. The source of that is the American Medical News, May 26, 2003.
  Fortunately for Elmoe Kee III of Woodville, the withdrawal of 
insurance coverage by St. Paul malpractice insurance provider from the 
State of Mississippi did not occur before he was attacked by a bank 
robber in a small rural county at Wilkinson County Savings Bank where 
he served as president. He would have most certainly died if he had not 
been able to get doctors to treat him almost immediately at Catchings 
Clinic in Woodville, MS. With the withdrawal of St. Paul as a 
malpractice provider, seven of the eight doctors in the area, including 
those at Catchings Clinic, Field Clinic in Centreville, and Gloster 
Clinic were left without a malpractice insurance provider beginning on 
June 30, 2002. The source of this information is the Jackson Clarion-
Ledger of June 27, 2002.
  On April 18, 2003, John Fair Lucas IV of Greenwood received a severe 
head injury due to a one-person car accident. Since the Delta Regional 
Medical Center no longer has around-the-clock neurosurgery services 
because of the impact of the medical malpractice insurance crisis and 
the loss of that coverage, John had to be airlifted to Jackson, losing 
valuable time because the distance from that area of Greenwood, MS, 
down to Jackson is about a 2-hour drive, or certainly a 30-minute 
helicopter ride, and he lost valuable time for the surgical procedure 
needed to reduce pressure on the brain. Sadly, John passed away on May 
28, 2003. The source for that is the Greenwood Commonwealth newspaper, 
April 25, 2003.
  ``Jill Mahaffey says she got lucky. She and her husband are here, 
they live in the Delta, too. She got lucky. She heard she's pregnant. 
She's getting there, getting ready. She goes to the doctor, he says, 
I've got to leave--OB/GYN getting ready to leave because of lawsuits, 
because of the threats. Because even if you're a doctor who practices 
good medicine, you're going to get sued in this State and in other 
States. Believe this or not, fortunately, she was getting toxic and the 
doc induced labor before he quit his practice. She says she was lucky. 
And she was.'' This is a quote from President Bush's address to Madison 
High School in Madison, MS August 7, 2002.
  Amber Peterson's obstetrician in Cleveland, Mississippi stopped 
practicing 3 weeks before her due date, and she had to drive out of 
State, over a hundred miles, to Memphis, Tennessee, to get the care she 
needed. The source of this information is the U.S. Department of Health 
and Human Services, from a report dated July 24, 2002.
  Marine Hawkins, 20, of Boyle, Mississippi, was shocked to hear from 
her obstetrician that he was closing his practice--just 2 weeks before 
her due date of July 21. The nearest doctor is 30 minutes away. She 
doesn't have a car and will have to rely on relatives to get there. 
``This isn't what I needed now,'' she said. The source of this 
information is the Houston Chronicle, July 20, 2002.
  In February 2003, Sharkey-Issaquena Community Hospital in Rolling 
Fork,

[[Page S3771]]

MS saw its insurance premiums rise from $163,000 to $223,000. Because 
of this rise, the hospital was forced to close its doors for 3 weeks 
while the hospital looked for an alternative insurance policy after 
being discontinued by its previous insurer. During these 3 weeks, 
Sharkey-Issaquena had to contract paramedics to treat patients while 
they were being transported by ambulance to the closest hospital. The 
source of this information is the American Medical News May 26, 2003.
  In 2002, 10 physicians left Greenwood Leflore Hospital because of the 
State's problems with medical liability insurance. Also during 2002, 
the hospital's liability insurance premium increased from $150,000 per 
year to $1.3 million. The source of this information is The Greenwood 
Commonwealth, June 26, 2003.
  On Sept. 30, 2002, officials at Forest General Hospital announced 
they are eliminating nearly 300 positions--200 of which were already 
vacant--to save an estimated $7.6 million in the new fiscal budget. 
Citing causative factors that prompted the cuts, hospital president 
Bill Oliver stated that Forrest General was hit last year with a 
dramatic increase--about $4 million--in medical malpractice insurance. 
The source of this information is the Hattiesburg American Oct. 2, 
2002.
  Mr. President, let me talk a little about exactly what is happening 
with the doctors in my State.
  In February 2003, 14 doctors in the Oxford area in various medical 
fields were left without malpractice insurance and were forced to close 
their doors because their insurer, Doctors Insurance Reciprocal, went 
into receivership on February 13. Doctors are slowly, surely leaving 
the area to go to bigger areas, or even to other States.
  I was in my hometown area, Pascagoula and Moss Point, MS, on the Gulf 
Coast, and met a new impressive doctor in the community. He was also 
involved in the trauma unit because he was an orthopedic surgeon. He 
moved to Mississippi from the State of Missouri. He is an African-
American doctor. He was doing a great job. He told me because of the 
insurance coverage situation, even though his family wanted to stay on 
the Mississippi Gulf Coast, it looked as if they might have to return 
to Missouri. Other doctors have been either leaving the State or 
getting out of the practice of obstetrics.
  In the case of Dr. Don Gaddy, as well as four other obstetricians and 
three nurse-midwives, they filed notice to take a 1-year leave of 
absence from Memorial Hospital at Gulfport, MS, because of extreme 
increases in medical malpractice insurance coverage. The source of this 
information is the Biloxi Sun-Herald, April 18, 2003.
  Dr. Gregory Patton, an OB-GYN with the Oxford Obstetrics and 
Gynecology Associates PA in Oxford MS, reports that his malpractice 
insurance premiums have gone up 60 percent--with each doctor paying 
$67,000. The source of this information is The Daily Mississippian June 
10, 2003.
  Drs. Blackwood and Baugh's temporary departure left no OBs in 
Cleveland for about 10 days. Only one family physician continues to 
deliver babies at the local hospital. But the malpractice insurance 
providers that are protecting them are only ``Band-Aid insurance.'' The 
source of this information is American Medical News Sept. 9, 2002.
  Dr. Kurt Kooyer left the small town of Rolling Fork after getting fed 
up with lawyers filing suit against him without even the patients' 
knowledge that they were filing suit against their physician. Dr. 
Kooyer was the only pediatrician among three physicians in town who 
lowered the infant mortality rate from an average of 10 deaths per 
1,000 live births to 3.34 deaths per 1,000. Dr. Kooyer now lives in 
North Dakota. The source of this information is The Clarion-Ledger Aug. 
23, 2002.
  ``Dr. Frothingham, you talk about a man with heart. You think Kooyer 
has a heart? Wait until you hear Frothingham. He's a great 
Mississippian; grew up here; thought he might try to live in South 
Carolina, realized what he was missing, came back to Mississippi. He's 
a neurosurgeon. He talked with deep compassion about a man who suffered 
a trauma, a fellow he was with--Johnny was with us today. He's a guy 
who understands that practicing medicine is more than just technology. 
It's concern and care. They're running him out of business. There's too 
many frivolous lawsuits. And that hurts the state and it hurts the 
country. It hurts the people.'' This quote is from President Bush's 
address to Madison High School in Madison, MS, August 7, 2002.
  On July 15, 2003, Drs. Derveloy and Gilmore, the only two heart 
surgeons in Oxford, are closing their practice. They contribute their 
relocation to a shortage of key elements: facilities, cardiologists, 
affordable medical malpractice insurance and regional referrals. Dr. 
Derverloy is joining an existing group off heart surgeons who are 
practicing in Tupelo, and Dr. Gilmore recently accepted an offer to set 
up a heart surgery program in Decatur, Ala. The source of this 
information is The Oxford Eagle June 8, 2003.
  Also in Oxford, the two cardiologists with the Oxford Heart Clinic, 
Dr. Nelson Little and Dr. Timothy Wright, are merging their practices 
with a Tupelo office, but will keep their local office open, which 
followed the loss of Oxford's only two heart surgeons, Drs. Derveloy 
and Gilmore. The source of my information is The Oxford Eagle, June 8, 
2003.
  Five doctors at the Family Practice/After Hours Clinic on U.S. 98 
West have posted a sign on their doors informing patients that no 
appointments are being scheduled for 2003. The physicians are also 
filling out applications for licensing in Alabama and Louisiana. The 
doctors explain the possible departure from Mississippi by the clinic's 
malpractice insurer informing them recently that their premiums will 
increase 45 percent on Jan. 1, 2003. The source of my information is 
the Hattiesburg American, Oct. 2, 2003.
  OB/GYN Mark Blackwood of Cleveland has seen his practice load nearly 
double since three physicians quit delivering babies in the area. His 
insurance lapsed in July, forcing him to close his clinic for ten days 
leaving dozens of patients without a physician to deliver their babies. 
He and his partner have seen an increase in the number of suits filed 
against them since the new legislation passed. The source of this 
information is the Mississippi State Medical Association Dec. 1, 2002.

  Radiologist Ken Duff was able to get coverage less than twenty-four 
hours before his old policy expired. He and his eleven partners cover 
two hospitals in Hattiesburg, facilities ion Columbia, Collins and 
Tylertown, as well as two large outpatient facilities. Without 
diagnostic radiology services patients have to wait longer to get test 
results, and other physicians will have to find new specialists to 
consult. The group desperately needs new recruits to cover demand. The 
source of this information is the Mississippi State Medical 
Association, Dec. 1, 2002.
  General Surgeon Brian Anthony of Bay St. Louis practices more 
defensive medicine and no longer does vascular work. He plans to retire 
10 years early because of the litigious environment. He says other 
physicians often consult him in order to document their cases and to 
reduce their exposure. He and the remaining surgeon in the area are 
considering whether they will continue to provide trauma services. The 
source of this information is the Mississippi State Medical Association 
Dec. 1, 2002.
  Neurosurgeon Terry Smith has not had a vacation in five years because 
there is not enough neurosurgery coverage to take care of his patients. 
He is one of only three neurosurgeons covering trauma cases for seven 
hospitals on the Gulf Coast. When he lost his insurance in August 2002 
he had to go on staff with a hospital in order to continue to practice 
in the area. The source of this information is the Mississippi State 
Medical Association, Dec. 1, 2002.
  Otolaryngologist Gene Hesdorffer of Hinds County had to close his 
practice on December 31 and was forced into full-retirement because he 
could no longer afford insurance. His insurance carrier informed him 
they were doubling his rates despite the fact that he has never been 
sued. The source of this information is the Mississippi State Medical 
Association, Dec. 1, 2002.
  OB/GYN Al Diaz of Ocean Springs has insurance until December 2002. He 
has lived on the Coast for 20 years but is now looking at practice in 
Mobile, Alabama, and Slidell, Louisiana. Both his son and daughter-in-
law are training in Louisiana but will not return to practice in 
Mississippi. The entire group of

[[Page S3772]]

four OB/GYNs just renovated their clinic in Ocean Springs and opened an 
office in Biloxi when they were told their insurance carrier would no 
longer be doing business in the State. The source of this information 
is the Mississippi State Medical Association, Dec. 1, 2002.
  Surgeon Cecil Johnson of Lauderdale County plans to retire soon. 
Until then he will continue to order more tests, x-rays and 
consultations in order to back up diagnoses. He also plans to drop 
vascular surgery in hopes that he will be able to find more affordable 
insurance. The source of this information is the Mississippi State 
Medical Association, Dec. 1, 2002.
  Internist Bob Lewis of Wilkinson County spent a week treating 
patients at the local emergency room while his clinic was closed. The 
group could not find coverage and the only quote they could get was 
$355,000. The four-man group paid $67,000 last year. Family Practice 
physician Jennings Owens and his group serve nearly 40,000 patients. He 
is upset that the hospital had to hire physicians in order to insure 
them. The source of this information is the Mississippi State Medical 
Association, Dec. 1, 2002.
  ER physician Bob Corken had to find insurance from Lloyd's of London 
for this ER group which services a hospital in Washington County and 
three others in the Delta and Central Mississippi. Corken found 
insurance at the eleventh hour in order to avoid work stoppages and 
temporary closure of at least one emergency room. The source of this 
information is the Mississippi State Medical Association, Dec. 1, 2002.
  Orthopaedic Surgeon Alan Swayze, MD of McComb took on more patients 
last year than ever before--partly because there are few orthopaedic 
surgeons in the area. Now he is leaving Mississippi and opening a 
practice in Georgia because his liability insurance to practice in 
Mississippi skyrocketed to $125,000 per year. His premium in Georgia 
will be $14,000 annually. The hospital administrator in McComb said the 
prospects of recruiting replacement physicians to McComb is ``bleak.'' 
The source of this information is the Enterprise Journal, June 12, 
2003.
  In April 2002, State Commissioner George Dale said, ``It's just a 
matter of time until insurance companies will say they're not going to 
cover medical providers in Mississippi.'' That time has arrived. Dozens 
of insurers have either discontinued writing medical malpractice in 
Mississippi or raised their premiums to such a level that doctors--like 
those at the Family Practice/After Hour Clinic--are being forced to 
consider relocating out of state. According to a survey conducted 
recently by the Rating Division at the Mississippi Insurance 
Department, 36 companies offered medical malpractice insurance in all 
categories in 2000. As of Sept. 10, there are only two licensed 
regulated, companies still providing medical malpractice insurance to 
physicians and surgeons in Mississippi. The main reason insurance 
companies give for hiking premiums and/or leaving the state is their 
concern about Mississippi's civil justice system, which has generated 
over 100 verdicts of $1 million in the last 6 years. The source of this 
information is the Hattiesburg American, Oct. 2, 2002.
  Fifteen medical malpractice insurers have withdrawn from offering 
coverage in Mississippi in the past five years. The source of this 
information is an HHS medical litigation report, March 3, 2003.
  ``We've had trouble recruiting and had physicians say they are not 
interested in coming to Mississippi because of the malpractice 
insurance rates,'' according to Dean Griffin, executive officer of 
Baptist Memorial-Golden Triangle Hospital. The source of this 
information is The Associated Press, March 20, 2003.
  A poster on the large wooden doors leading into Delta OB/GYN explains 
it all: ``It is with much regret that we must inform you that our 
office will be closed effective 7/14/02 until further notice. Due to 
the current malpractice crisis in the State of Mississippi, our 
liability insurance has been canceled.'' The source of this information 
is the American Medical News, Sept. 9, 2002.
  Mr. President, I ask unanimous consent that the entire list of 
physicians who are no longer delivering babies in Mississippi be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Physicians No Longer Delivering Babies Within Mississippi

       Total: 54.


                           adams county (3):

       Ob-Gyn T.L Purvis of Natchez.
       Family Practice physician Dr. Ana Leurinda of Natchez.
       Family Practice physician Jody Nance of Natchez.


                           alcorn county (1):

       Family Physician Dr. Erica Noyes of Corinth.


                           amite county (1):

       Family Practice physician Mutahhar Ahmed of Liberty.


                           attala county (4):

       Family Practice physician Tim Alford of Kosciusko.
       Family Practice physician Anson Thaggard of Kosciusko.
       Family Practice physician Richard Carter of Kosciusko.
       Family Practice physician Stanley Hartness of Kosciusko.


                          bolivar county (3):

       Family Practice physician Don Blackwood of Cleveland.
       Family Practice physician Bill McArthur of Cleveland.
       Family Practice physician Scott Nelson of Cleveland.


                          coahoma county (1):

       Ob-Gyn Dr. Joseph O. Sims of Clarksdale.


                           copiah county (1):

       Family Practice physician Fred McDonnell of Hazlehurst.


                         covington county (2):

       Family Practice physician Word Johnston of Mt. Olive.
       Family Practice physician David Wheeler of Mt. Olive.


                           desoto county (1):

       Family Practice physician Dr. Pravin Patel of Coldwater.


                          forrest county (1):

       Ob-Gyn Hilda McGee of Hattiesburg.


                          franklin county (1):

       Family Practice physician Bo Gabbert.


                          grenada county (1):

       Ob-Gyn Sidney Bondurant of Grenada.


                          harrison county (3):

       Family Practice physician Karen Mullen of Biloxi.
       Ob-Gyn Maria Moman of Gulfport.
       Ob-Gyn Oney Raines of Gulport.


                           hinds county (3):

       Family Practice physician Charles Guess of Jackson.
       Family Practice physician Wayne Johnson.
       Ob-Gyn Beverly McMillan of Jackson.


                           holmes county (1):

       Family Practice physician Charles Campbell.


                          jackson county (2):

       Ob-Gyn Tom Singley of Pascagoula.
       Ob-Gyn Jack Hoover of Pascagoula.


                         jefferson county (1):

       Family Practice physician Shanti Pansey of Fayette.


                           lamar county (1):

       Family Practice physician Stephen Harless.


                           leake county (1):

       Family Practice physician David Moody of Carthage.


                            lee county (1):

       Ob-Gyn Jack Kahlstorf of Tupelo.


                          leflore county (3):

       Ob-Gyn S. R. Evans of Greenwood.
       Ob-Gyn Ed Meeks of Greenwood.
       Ob-Gyn Terry McMillin of Greenwood.


                         oktibbeha county (2):

       Family Practice physician L. H. Brandon of Starkville.
       Family Practice physician John Hollister.


                           panola county (1):

       Ob-Gyn Purnima Purohit.


                        pearl river county (2):

       Ob-Gyn Anthony Grieco of Picayune.
       Ob-Gyn James Blount of Picayune.


                           rankin county (1):

       Family Practice physician John Boone of Brandon.


                          simpson county (2):

       Family Physician Dr. Sherry Meadows of Mendenhall.
       Family Physician Dr. Terry Meadows of Mendenhall.


                         sunflower county (1):

       Family Practice physician W. L. Prichard of Indianola.


                           warren county (2):

       Family Practice physician John Ford.
       Family Practice physician Lamar McMillim.


                         washington county (3):

       Ob-Gyn Dr. Elmertha Burton of Greenville.
       Family Practice physician James Adams.
       Family Practice physician Hernando Payne.


                         wilkinson county (1):

       Family Practice physician James Leake of Centreville.


                          Winston County (2):

       Ob-Gyn Glen Peters of Louisville.

[[Page S3773]]

       Family Physician Dr. DeWitt Crawford of Louisville.

  Mr. LOTT. Mr. President, this is not a short list. This is a lengthy 
list, with probably as many as 40 counties listed. In Adams County, 
they lost three physicians who had been delivering babies. Attala 
County, in the center of the State, lost four family practice 
physicians who had been doing deliveries; they got out of the practice. 
In Harrison County, one of our more metropolitan areas on the Gulf 
Coast, three doctors got out of delivering babies. The list goes on and 
on.
  Pretty soon it is going to be hard to have a baby delivered in my 
State. That causes me a great deal of concern.
  Mr. President, I hope we can get the votes tomorrow to proceed on 
this issue and have a full debate and a vote. This is not some massive 
tort reform, although I think we need it. I hope we will later visit 
the issue of class action reform.
  This is very targeted legislation that will address a serious problem 
in many States--the majority of States across this country, where we 
are losing the services of these physicians in these critical areas. I 
would hate to have to explain to my State how I would not even vote to 
proceed, let alone not vote to have some limits on medical liability 
for doctors who deliver babies and treat their mothers and who care for 
us when we have accidents and go to the emergency room.
  I think this is very carefully drafted legislation, very thoughtful. 
I certainly hope the Senate will see fit to proceed to a full debate 
and vote on this critical legislation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.


                       Pension Funding Equity Act

  Mr. McCONNELL. Mr. President, I want to briefly address a conference 
report that we will hopefully be voting on in the Senate this week; 
that is, the conference report called the Pension Funding Equity Act.
  The House of Representatives passed this bill overwhelmingly last 
week. This is a bill that addresses the urgent need to establish an 
appropriate interest rate for determining pension plan liabilities. The 
conference agreement provides for a temporary replacement only for the 
30-year Treasury bond in determining the pension plan's liabilities.
  The Government stopped issuing this bond in 2001, and continuing to 
use this outdated interest rate would require companies to make 
unnecessarily large contributions to the pension plans.
  If this change is not made, the administration estimates it will cost 
American companies $80 billion over the next 2 years. This is $80 
billion over the next 2 years, not the standard 10 years by which we 
usually measure legislation.
  This is $80 billion that companies could put to better use creating 
jobs, purchasing equipment, providing raises to workers, or pursuing 
any number of worthwhile business activities.
  This is legislation that cannot wait. It needs to be passed this 
week. A previous temporary replacement rate expired January 1 of this 
year, 2004. Unless the Senate acts prior to the recess, by the end of 
this week, companies will be required to make the first of their 
inflated contributions based on the flawed interest rate on April 15, 
while we are not here. So this is it; the last opportunity to address 
this great inequity is this week. Again, these are funds that companies 
could otherwise use to create jobs, invest in new equipment, and 
provide raises to workers.
  I believe I am safe in saying that every Member of the body has heard 
from his or her constituents about the need to solve this problem 
before April 15. The House recognized the urgency of this matter and 
passed this conference agreement on a bipartisan vote of 336 to 69 last 
Friday. That was an overwhelming bipartisan recognition that this 
conference report needs to become law and needs to become law now. It 
is critically important that the Senate do the same and send this to 
the President for his signature before April 15.
  We spend a lot of time talking about jobs and job security on the 
Senate floor, and we should be talking about jobs and job security. 
This pensions conference report is an opportunity to stop talking and 
start acting. We ought to seize this opportunity and pass this very 
much needed legislation this week.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. FRIST. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                   UNIVERSITY OF TENNESSEE LADY VOLS

  Mr. FRIST. Mr. President, I see my colleague from Tennessee in the 
Chamber. I know shortly he will be addressing the issue under 
consideration, that of medical liability. In seeing him, I did want to, 
for a couple of minutes, talk about a very important event that will 
occur later this evening.
  The State of Tennessee, which both he and I represent, is once again 
at the height of March Madness. Congratulations to the University of 
Tennessee Lady Vols, who will play for their seventh NCAA title tonight 
against a familiar foe, the University of Connecticut Huskies.
  Coach Pat Summitt has maintained a championship basketball program at 
the University of Tennessee for three decades. This upcoming matchup, 
to be played in a few hours, will be the Tennessee native's 102nd NCAA 
tournament game. Coach Pat Summitt has led the team to an overall 
record of 851 wins and 166 losses in 30 seasons.
  Under the watchful eye of the winningest coach in women's basketball 
history, the Lady Vols have advanced to the NCAA Sweet 16 and the Elite 
Eight in 19 of the last 23 years. Tennessee is making its third 
straight Final Four appearance, setting a new NCAA record with 15 such 
appearances. The win over Stanford in the 2004 Midwest Regional final 
gave the Lady Vols their 14th 30-win season in Coach Pat Summitt's 30-
year career at Tennessee.
  This is an especially big game for the Lady Vols seniors. During 
their 4-year stint at Tennessee, they have yet to clinch a national 
championship. They did garner a No. 1 seed for a nation leading 16th 
time in 2004.

  It is the seniors' outstanding play that has blazed the trail to the 
2004 NCAA championship game. Senior Tasha Butts scored the winning 
basket at the buzzer in both games of the Midwest regional. Senior 
LaToya Davis scored with 1.6 seconds left in Sunday night's Final 4 
matchup to keep Tennessee's national championship hopes alive.
  Butts, Davis, and fellow senior Ashley Robinson accounted for one-
third of the team's total production in the 2004 NCAA Tournament. They 
have attributed 47 percent of Tennessee's points, 77 percent of its 
assists, and 39 percent of its three-pointers. Together these 
exceptional student athletes have produced 30 points, 21 rebounds, 10 
assists, 4 steals, and 3 blocked shots per game.
  Tennessee, although a perennial powerhouse, has not won a national 
title since 1998. Under the tutelage of a basketball living legend, 
combined with the heart of the Lady Vols' seniors, Tennessee hopes to 
bring the glory of women's basketball back to Rocky Top.
  I wish both teams good luck tonight, and I hope to join the Tennessee 
Lady Vols at a White House victory celebration later this year. Go 
Vols.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, are we in morning business?
  The PRESIDING OFFICER. We are not. The Senate is considering a motion 
to proceed.
  Mr. ALEXANDER. Mr. President, I wish to respond to the majority 
leader's comments, if I may. I, as a great many Americans, am going to 
be watching the Connecticut-Tennessee basketball game tonight at 8:30 
eastern time.
  Connecticut has a wonderful tradition, a terrific coach, and great 
players. They have won the last couple of years. But the Naismith Coach 
of the Year this year is Pat Summitt. For those of us in Tennessee, she 
is the coach of the year every year.
  Senator Frist has mentioned her achievements as a coach, which I 
think we must take for granted in Tennessee. We expect Pat Summitt to 
be in the Final Four. We expect her team to be in the finals. We expect 
her often to win, and we sometimes forget how hard that is.
  Twenty-five years ago, it might have been easy when women's 
basketball

[[Page S3774]]

was starting. Today, there is a lot of parity. There are a good many 
great coaches. There are many teams inspired by Pat Summitt. It is an 
enormous accomplishment for Coach Summitt to have this team in the 
finals once again. One day, when she is finished--and I hope that is no 
time soon--I will look back and say how could that have happened, and 
how much could one woman build this game and make such a difference?
  She does one other thing that I think is important to hear. This is a 
time when we hear about athletes, which we wish we hadn't heard, young 
men and women suddenly exposed to fame, money, and television with bad 
results. You do not hear about many of Pat Summit's young women. It was 
true a few years ago when I was president of the University of 
Tennessee that every single young woman who completed her eligibility 
at Tennessee on a Pat Summitt team has received her degree or is in the 
process of completing her degree requirements--every single one. That 
was true 10 years ago. I suspect it is still true today.

  If you watch those young women when they are interviewed, before, 
after the game, or any other time, they look like future coaches. They 
speak well. They conduct themselves well. They are graceful toward 
their opponents. They make us proud to be Tennesseans when we see them. 
So this team not only wins, its coach and players conduct themselves 
brilliantly as scholars and as competitors, and they bring out the best 
in our country.
  Pat Summitt, I suppose, is not for every young woman who wants to 
play college basketball. She is a tough competitor. I think that is one 
reason why she is such a good coach and why she gets many of the 
greatest players. She and her staff bring out the best in players, and 
they want to play for Pat Summitt. There are little girls around this 
country who play basketball in sixth, seventh, and eighth grade who 
dream of growing up to play for Pat Summitt.
  One other thing I would add. Pat Summitt has kept her coaching team 
together for a long time. Mickie DeMoss, her assistant, left for the 
University of Kentucky to take a well-deserved head coaching position 
there. Mickie DeMoss is a great recruiter and will be a great head 
coach, I believe. Many people thought when Mickey went to Kentucky, Pat 
would not be able to recruit as well. I am sure the competitive urge in 
Pat Summitt caused her to go out and recruit what is already being 
called the ``Fabulous 6,'' the All America player of the year for the 
last 2 years and five other young women who are coming to the 
University of Tennessee next year on scholarships. Many basketball 
analysts say it is the best women's recruiting class ever.
  Senator Frist and I salute Coach Pat Summitt, not just for being 
Coach of the Year this year, but, in our book, for being coach every 
year and for effort in the incredible graduation rate of the young 
women who have played for her and helping them grow into womanhood and 
to represent our State and our country in that sport very well.
  Mr. President, if I may speak on another subject, I come to the floor 
today to express my concern, once again, with the rising cost of 
medical liability insurance and what this means for patient access to 
medical care in Tennessee. This is a subject we have talked about many 
times on this floor, and it is a subject I hear about often when I am 
in Tennessee.
  Last February, we debated this issue right here and, unfortunately, 
we were not even able to get to a vote on it. We were not able to 
invoke cloture, we were not able to vote on the issue of medical 
liability insurance.
  Today we are limiting our debate to just this issue: the care for 
mothers and babies and for anyone with an emergency medical condition. 
That is all we are talking about in this legislation--mothers and 
babies and anyone of any age with an emergency medical condition.
  These are the individuals who have the highest need for medical care 
in our country, and the lack of access to that care can prove deadly.
  The increasing cost of medical liability insurance is creating a 
patient access crisis because doctors are leaving the practice of 
medicine rather than pay the high cost of medical malpractice 
insurance.
  For example, in the Hardin County General Hospital in Savannah, in 
west Tennessee, the only OB/GYN doctor left the hospital to practice in 
another State because Tennessee's insurance premiums were too high. 
High medical liability insurance is one more reason it is difficult to 
recruit specialists to rural areas.
  We need to make certain we ensure access to good care in emergency 
rooms for all Americans, all Tennesseans. Yet neurosurgeon Rick Boop of 
Memphis, TN, wrote me to say:

       I have seen three children die recently of shunt 
     malfunctions in emergency rooms which did not have a 
     neurosurgeon who could perform procedures on children. All 
     neurosurgeons can provide a simple shunt revision, but many 
     are being forced to stop caring for children in order to 
     retain or reduce their liability premiums.

  All three of these children died awaiting helicopter transport to a 
children's hospital--
  Where there was a specialist who could perform that type of 
procedure.
  More and more Americans are seeking emergency room care. In 
Tennessee, for example, the number of emergency room visits increased 
by almost one-third, 31 percent, over a 3-year period. The largest 
increase in usage was among individuals in our TennCare program, our 
Medicaid program. These are the people who need the most help, our 
poorest people in Tennessee. We need to make sure specialists are 
available in the emergency rooms of this country and Tennessee to care 
for these patients.
  In 2002, the average net medical liability premium for an OB/GYN in 
Tennessee was $33,600. In 2003, the premium was up to $41,980. In 2004, 
it increased again to $49,408. This is a 47-percent increase in medical 
malpractice insurance premiums over the past 3 years. This is not 
sustainable over time if we expect to have doctors, specialists in the 
hospitals, in the emergency rooms, to care for mothers and babies and 
the most vulnerable in our society.
  Two years ago, I met a young woman who had just graduated from the 
University of Tennessee Medical School. She was looking forward to 
going into her OB/GYN practice in a rural area of Tennessee. She told 
me her medical malpractice insurance premium 2 years ago was $70,000 a 
year and she had never delivered a baby in her practice.
  I believe S. 2207, the Pregnancy and Trauma Care Access Protection 
Act, will help protect access to care for mothers and babies and 
Tennesseans in emergency medical conditions. This bill will still allow 
unlimited economic damages, but it places a sensible cap on non-
economic damages. I hope we can agree to have a vote to reach cloture 
on this important legislation.
  I often express my concern for federalism, for the importance of 
allowing States and local governments to exercise their rights and 
responsibilities and not be overridden by the Federal Government except 
when it is absolutely necessary. In this case, this legislation allows 
States to set their own caps if they prefer a lower cap or if they 
prefer a higher cap. In this case, we ought to act because Americans 
should have an equal opportunity to health care, particularly if they 
are mothers, children and the most vulnerable and poor in our society.
  I ask that the full Senate agree that we vote--be it up, or down, and 
I will vote yes--on this important legislation to help those who need 
help the most.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. Dole). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, I rise to continue to speak about the 
Foreign Sales Corporation Extraterritorial Income Act that is before 
Congress that we call the JOBS and manufacturing act. I wish to bring 
the Senate up to date on the status of this not just as a jobs bill but 
as a major economic policy legislation.
  This, of course, is bipartisan legislation. This is legislation that 
was designed to respond to the World Trade Organization's adverse 
ruling on a benefit under the old law for U.S. exporters and to bring 
our law into conformity with that World Trade Organization ruling, but 
to do it in a way that

[[Page S3775]]

actually creates jobs in America and emphasizes domestic manufacturing 
so American manufacturers are going to benefit from this legislation on 
what they do in the United States, not what they do overseas.
  Foreign corporations that come into the United States are going to 
benefit under this legislation as long as they set up plants and 
manufacture in the United States. This bill has an acronym, J-O-B-S, 
and it is truly jobs-creating legislation.
  We have problems with this now because some people who even support 
this legislation want to stall it so they can use it as a vehicle for 
getting some of their pet projects through the Senate. When everybody 
is saying, and rightly so, that we have not created enough jobs in 
manufacturing and we have a bill before the Senate that will do it, I 
do not know why anybody would want to hold this bill up, but there is a 
playing of politics and, in my view, then when one plays politics, the 
people's business is neglected.
  First, there is a lot in this bill on which we all agree: The tax 
benefit I refer to is the foreign sales corporation extraterritorial 
income benefit. That benefit provides a roughly 5-percent corporate 
rate tax cut for U.S. exporters of manufactured products.
  As everyone knows, there is a disturbing economic statistic about 
U.S. manufacturing and that was that there was a downturn in the 
manufacturing index starting March of 2000. I emphasize that because 
everybody thinks this recession started under President Bush, but if 
one looks at the manufacturing index, they would find the manufacturing 
index started to turn down March of 2000. It just now has bottomed out 
and it is just now that it looks as if there is going to be an increase 
in hiring in manufacturing.
  Fortunately, with the tax relief in place in this bill and with other 
stimulative measures that have been passed last year, manufacturing has 
come back. Unfortunately, manufacturing employment has not come back to 
previous levels, and that is what this bill deals with. Both sides, 
meaning both Democrat and Republican, agree there is a problem with the 
loss of manufacturing jobs. Both sides also agree that the loss of this 
previous benefit will result in a tax increase on U.S. manufacturers. 
Following the simple rules of Economics 101, if something is taxed 
higher, there is less of it.
  There is some dissent on my side of the aisle, the Republican side, 
which I want to mention so that I am candid in not everybody who 
opposes this bill is on the Democrat side.
  We have Senator Kyl and Senator Nickles, as an example. They are 
Republicans. They question the wisdom of the current law benefit.
  I was also surprised to hear last week that one Member from the other 
side--quite a liberal Member, as a matter of fact--in effect agreed 
with Senator Kyl and Senator Nickles. That Member questioned the wisdom 
of the foundation of this bill--the tax deduction for domestic 
manufacturers. That Member took to task, as he said, the authors of the 
legislation.
  I wonder if that Member bothered to check to see the authors were 
also Republicans and Democrats on the Senate Finance Committee. In 
fact, every member of the Senate Finance Committee who is a Democrat 
voted for this bill to come out of committee.
  In any event, with the exceptions noted--meaning one Democrat plus 
Senator Kyl and Senator Nickles, also--there is general agreement on 
both sides that we need to replace current law with a manufacturing 
benefit which will agree with the General Agreement on Tariffs and 
Trade, the international agreement that decides the rules of trade.
  Conversely, I have not heard anyone say it is wise to sit idly by 
while our exports get hit with tariffs put on our products in a legal 
way by Europe, causing our products to be uncompetitive.
  In general, both sides agree we need to deal with this tariff 
problem. We need to deal with this adverse World Trade Organization 
ruling. Both sides agree we have a responsibility to remove the tariffs 
against our exports. But yet there doesn't seem to be agreement it 
should have been done yesterday. It is OK if it is done down the road 
in another 6 months when we have another 6 percent tariff put on. At 
least that appears to me to be the way some people are acting.
  If we agree on the problem and on the substance of this bill, why 
can't the job be done? Why can't this bill get to the President? It 
appears to me the two sides disagree on the outcome for this bill.
  I think dealing with this bill goes to the heart of our 
responsibility as a Senate. We take an oath to uphold the Constitution. 
The Constitution provides Senators with a unique power somewhat 
different than in the House of Representatives. That unique power also 
carries unique responsibilities. Where there is a compelling public 
policy problem and there is a consensus around the legislation that 
solves that problem, it is our responsibility as Senators to do 
everything in our power to make it happen.
  Said another way: If we have a bill before the Senate that is going 
to pass the Senate 90-10, or by a wider margin than that, and there is 
an agreement it ought to be done, why doesn't it get done?
  We all know the Senate is an institution that renders easily to 
gridlock and to delay. I suppose we would have to blame our Founding 
Fathers because they contemplated a Senate where the majority would set 
the agenda and the minority defines its agenda with amendments and 
debate. Those powers of delay and obstruction are properly resorted to 
when the majority is ramming something through on a partisan agenda. 
There is, however, a reflective responsibility on the part of the 
minority leadership and its members where the legislative item is a 
bipartisan product. That seems to me to be a responsibility to 
be constructive. It is irresponsible then for minority leadership and 
members of the minority to obstruct a consensus item.

  It is the height of irresponsibility to obstruct and delay when the 
item is a bipartisan compelling matter such as this bill is. It is 
simple. Is the United States going to abide by international agreements 
we have already approved in this Senate?
  It is our responsibility to set an example for the rest of the world 
because we are outstanding in exemplifying the rule of law and the 
protection of individual freedoms. Some people might say we ought to 
give that notoriety to England because our law comes from England. But 
I think you would all agree when it comes to individual freedom we have 
even advanced beyond England.
  Are we going to have a constructive approach to this legislation? I 
have to say to my fellow Senators: It is in our hands. Either we can 
continue to play these political games or we can do the job we were 
elected to do.
  Some have said something such as we will take a limited time on 
amendments. That misses the point. The point is the majority is led by 
Senator Frist. We have all played this game straight. The majority 
amendments to this bill have improved the bill in ways that will get 
even more votes for it. All those amendments we have offered have been 
bipartisan.
  For example, the Hatch-Murray amendment on research and development 
credit and the Bunning-Stabenow amendment on accelerating the 
manufacturing deduction--you recognize those Senators' names 
immediately and know there is one Democrat and one Republican. That is 
the way things get done in the Senate.
  The Democratic leadership has taken this bipartisan bill and turned 
it into a political football.
  We have an amendment on overtime that was previously voted on and 
that is a sticking point.
  There are other showstoppers planned by the Democratic leadership. In 
this case, you have one side--the majority--using the power of setting 
the agenda in a constructive way. I define that constructive way as 
bipartisan because nothing gets done in the Senate that is not 
bipartisan.
  Then you have the other side--the Democratic side--using its power of 
amendments and the power of delay solely for politically destructive 
purposes.
  That imbalance can't last for long. If it does last for long, the 
Senate is brought to a halt. It is kind of like the law of physics. For 
every action there is a reaction.
  There shouldn't be this kind of tension on a must-do--in other words, 
a

[[Page S3776]]

must-pass--bipartisan bill. When it is this way on a must-pass 
bipartisan bill, something is out of whack. Republicans will eventually 
be fed up with the gamesmanship on the other side. It will mean the 
Republican political amendments--those which the Democrats do not 
like--are going to be brought up because for every action there is a 
reaction. That is going to lead to a vicious circle and this bipartisan 
bill will be more bogged down than it is presently.
  Another route Republicans could take is to switch to an agenda item 
that is not like this one. It would be a bill that has heavy political 
overtones. It would not be as compelling as this bill. It probably 
wouldn't necessarily be a must-pass bill.
  Again, if we were to do that, the victim would be this very good 
must-pass bipartisan bill.
  From the Republican side, let me say to every Democrat, we don't want 
to go that way. We will do everything we can to avoid going that way.
  Maybe the Democratic leadership thinks a designed plan to deter us 
from taking care of the people's business is good politics. Blame the 
Republicans, they may be thinking. They may be thinking: We have a 
liberal press, we can get away with it. They will protect us. They do 
all the time, anyway. It is kind of an encouragement. Maybe they think 
it is more important than actually helping the workers which this bill 
will help; and the U.S. businesses that are at risk because of this 
Euro tax; in other words, the European tariff on our products going 
from the United States to Europe.
  It isn't that simple. There will be accountability. There has always 
been in the case of cloture votes. We don't want to go the route of a 
cloture vote. None of us want to go there again. But we could go there 
again. There is a petition on file. The American people expect us to do 
our jobs and not play politics.

  I have talked about our responsibility as Senators. Let me put it in 
the context in my role as chairman of the Senate Finance Committee. 
Thanks to the good people of Iowa, I have seniority to chair the oldest 
standing committee in the Senate, the Finance Committee. I am pleased 
to work with my friend, our ranking Democratic member, Senator Baucus. 
Not to toot our horns too much, but I am proud of our committee. We 
respond to big, tough issues in a businesslike, professional manner. We 
do not always agree, but most of the time we do agree.
  From my view, this foreign sales corporation replacement bill has 
been handled in the best bipartisan tradition of our Finance Committee. 
Senator Baucus and I developed this bill as partners. All Democrats, 
even Senators Daschle and Kerry, participated in and supported this 
bill out of the Finance Committee. They are Members of this committee. 
All of the amendments I put up for this bill have been bipartisan 
amendments. They are amendments that have improved the bill.
  Who can argue with the domestic job benefit extended by the research 
and development credit? That was a bipartisan bill. Who can argue with 
enhancing the manufacturing deduction? That was a bipartisan amendment. 
Democratic Members were accommodated in the committee and on the floor 
with a managers' package. Senator Baucus and I developed that package 
shoulder to shoulder.
  The latest version includes the bipartisan package of energy tax 
incentives approved by the Senate Finance Committee last year for 
farmers in the Midwest, the South, timber harvesters in the Northwest, 
or wind farms across the country. This package is going to produce and 
create jobs. This package has twice passed the Senate without dissent.
  For all the Senators from my region and other places who said they 
could not support cloture on the Energy bill last winter because of the 
MTBE issue, here is your chance to vote for an energy bill that does 
not have anything to do with MTBE. Members do not have to worry about 
your personal injury lawyer friends calling upon you to fight the MTBE 
thing because they want to protect their own income. Members do not 
have to worry about offending them. That is not in this bill. Members 
got a chance to vote an energy bill they wanted.
  This maneuvering bothers me. So I brought along a chart that draws 
from a favorite activity in the Midwest. I am talking about a game of 
football. The gridiron does not necessarily have anything to do with 
the gridlock that is occurring on this bill, but it illustrates the 
problems we have.
  This JOBS bill is very near the Senate goalline. Unfortunately, 
politics is driving the Democratic leadership to move the goalposts. 
When we came into session in January, Senator Frist was criticized by 
the Democratic leadership for not moving to the JOBS bill right away. 
At that time, the goalpost was very clear, very close, right there 
where it always is on the football field. That was in January.
  After we finished the highway bill and a couple of other things, 
Senator Frist attempted to move the jobs in manufacturing bill. Much to 
my surprise, we were ambushed by the Democratic leadership with 
unrelated amendments. I thought I had an understanding as floor 
manager. That understanding was we were going to do amendments first 
that were related to the bill and then move to other amendments. That 
agreement was not carried out.

  From my standpoint, this was an unfortunate event. In budget 
discussions, I made clear I opposed putting this JOBS bill in the 
reconciliation package because I had assurances that the Democratic 
leadership wanted the bill passed. In fact, my ranking Member, Senator 
Baucus, 2 days before Republicans went to Philadelphia for our retreat 
in January to make our plans for this year, told me. I want to move 
this JOBS bill; do not let the Republicans include this JOBS bill in 
the reconciliation because reconciliation is obnoxious to the 
bipartisanship of the Senate. It is obnoxious to the minority.
  When we were making our plans in Philadelphia, my colleagues 
responded to that request from my Democrat ranking Member and we did 
not include this bill in the process of reconciliation. It happens that 
my view was not shared by the House leadership or even by the Senate 
leadership or by the White House. I took the position in leadership 
meetings and in the Senate Budget Committee Republican caucus 
deliberations that the Democratic leadership would not politicize this 
bill; we would get it passed.
  I was ambushed on March 3rd. In fact, it looks like I was wrong and 
others were right.
  So we have a second goalpost here. It was the amendment of my 
colleague from Iowa on overtime. It did not matter that we had voted on 
that amendment previously. It did not matter that the amendment dealt 
with proposed--not final, proposed--Department of Labor regulations. 
No, none of that mattered. That amendment was and still is a 
showstopper to this bipartisan bill that everyone agrees ought to pass 
the Senate. When it comes to a final vote, it will pass overwhelmingly.
  We are now at that second goalpost. The demands of the Democratic 
leadership still change. We were talking about a single-digit list of 
amendments. Not anymore. Now that it looks like an overtime vote may be 
in the picture, there is a goalpost yet farther away. For the first 
time, we are hearing of other amendments not even in the jurisdiction 
of the Finance Committee, such as an increase in the minimum wage, 
another showstopper. We cannot finish the bill, we are told, even 
though we are told the substance is great. This is the greatest bill 
since sliced bread is the opinion of people all over the Senate. But we 
cannot finish the bill because of this new goalpost.
  Heaven help us how that might turn out.
  There is a final goalpost out there. It is way, way out there, as you 
can see. It is getting to conference. We may move through all of these 
goalposts but then be blocked from going to conference because the 
Democrats have decided they should never agree to go to conference on a 
bill unless they can dictate the outcome. Effectively, that does not 
just shut down the Senate; that shuts down the whole Congress.
  Now, let me ask you: Is this any way to legislate? Is this a proper 
exercise of leadership? Is this right when jobs are on the line and 
people back home expect us to move consensus legislation? You have to 
wonder: Is all this obstruction really worth it?
  Now, my sense is, the political imperative of stopping this 
bipartisan bill is

[[Page S3777]]

very strong. It seems the Democratic leadership is so fearful or 
resistant to getting a bipartisan JOBS bill to the President's desk 
that they are going to do anything to block it. Just keep moving the 
goalposts; pretty soon you will not see them. I think the record 
reflects this view I have that somehow there can be no JOBS bill that 
gets to the President of the United States.
  Now, do you know what I would be willing to do? If there is something 
with the title of this bill, called a JOBS bill, that is obnoxious to 
the minority, because it might make a Republican President look good, 
well, I will change the name of it. You guys name this bill. It is OK 
with me. The title has nothing to do with the substance of it in the 
sense of legislative dominance, but we try to say, in the title of a 
bill, what we are intending to accomplish. What we are intending to 
accomplish in this jobs in manufacturing bill is to stop this 
outsourcing that you hear so much about, to create jobs in 
manufacturing in America, and not just jobs but good jobs, because 
manufacturing jobs that are related to exports pay 15 percent above the 
national average. They are good jobs.
  I have predicted they cannot let this bill get to the President of 
the United States for political reasons. I hope I am proven wrong in 
the next few days. But I can say this: It is time to get the job done. 
In a few days, I hope we can move back and pass this jobs in 
manufacturing legislation. It is, in fact, a bipartisan piece of 
legislation. It is, in fact, a piece of legislation that deserves 
better treatment than it has received so far.
  So tomorrow I hope, for all these reasons, particularly the reasons I 
gave earlier this afternoon--that there are so many amendments that 
have been added to this bill at the request of Democrats and 
Republicans alike, but I emphasize the Democrats--they have something 
in this bill they have asked for. They have asked for me to consider 
it. If they do not vote to stop debate tomorrow, to move on this 
legislation, get it to the President, why did they come to me in the 
first place and ask me to put their favorite piece of legislation in 
this bill?
  It is all good legislation. I do not find fault with the people who 
have asked me to do it. It is all good public policy. But, also, it was 
not something real pertinent to the primary purpose of this 
legislation. But we are helping them get their bill passed by 
cooperating with them. I would like a little cooperation in return. I 
would like to have all the Members who we have tried to accommodate--
both Republican and Democrat--vote to stop debate and move on to final 
passage of this bill, so we can create jobs in manufacturing.
  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.
  Ms. COLLINS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. COLLINS. Madam President, I ask unanimous consent to proceed as 
in morning business for not to exceed 12 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Ms. Collins pertaining to the introduction of S. 2288 
are printed in today's Record under ``Statements on introduced bills 
and joint resolutions.'')
  The PRESIDING OFFICER (Mr. Fitzgerald). The Senator from New 
Hampshire.
  Mr. SUNUNU. I ask unanimous consent that I be allowed to speak for 5 
minutes as in morning business, and I further ask consent that 
immediately after my remarks Senator Harkin be recognized.
  The PRESIDING OFFICER. Without objection, it is so ordered.


           Voice Over Internet Protocol Regulatory Relief Act

  Mr. SUNUNU. Madam President, I rise to speak today on legislation I 
introduced this week called the VOIP Regulatory Freedom Act of 2004. 
This is legislation that deals with the issue of voice communications 
sent using Internet protocol that many Members of this body may not be 
familiar with or may not have heard a great deal about; but it is a new 
technology that takes advantage of the growing broadband networks that 
are in place in this country to send voice messages, much the same as 
one might send an e-mail or an instant message. It is a growing area of 
technology and innovation, but it is one where there is not a very 
clear path regarding regulatory and taxing jurisdiction, and there are 
not a lot of laws on the books that clearly address this new 
technology.
  In order to encourage continued investment in and continued use of 
this application and this system for sending voice traffic and in order 
to make sure consumers continue to have the benefits of lower costs, 
new features, and better service that is the potential of this 
technology, I have introduced legislation this week.
  First and foremost, S. 2281 declares this is a technology that uses 
national and global broadband data networks, the Internet, that we have 
all read and heard so much about by this point in time. It recognizes 
these are international networks, global networks, and therefore we 
should have Federal jurisdiction in this area.
  Second, it takes the step of preempting States from regulating in 
this area, the area related to voice-over-Internet-protocol 
applications, because what we do not need is a patchwork of 50 
different sets of regulations that would stifle the innovation, the 
investment, and the productivity we all hope will come from this 
technology.
  Even worse, the regulations some States have already begun to try to 
apply are not regulations developed for the Internet, broadband, or a 
voice-over-Internet-protocol application. They are really designed for 
a copper wire circuit switch telephone network that was invented 100 
years ago and for which most of these State regulations were developed 
in the 1930s, 1940s, and 1950s. It is an outdated system and we should 
not be trying to force old regulatory structures on this new 
technology.
  Third, the VOIP Regulatory Freedom Act of 2004 that I have introduced 
will clarify the definition for information services, for VOIP 
applications, in a way that can be easily understood given new and 
emerging technologies.
  I was not in Congress at the time, but Congress wrote the 1996 
Telecommunications Act that talked about information services and 
telecommunications. Quite frankly, it did not envision these kinds of 
voice applications being offered over the public Internet or over 
private networks. So as a result, we have had lawsuits, not 
surprisingly. In America, if one is unsure of what is happening, if one 
does not like the law, get a lawyer and sue, but we have had lawsuits 
because of the lack of clarity in some of these definitions. My bill 
would clarify the definition of voice-over-Internet-protocol. It states 
clearly what it is and what it is not from a regulatory perspective, 
and then treats it much like we would any other information service 
that uses Internet protocol, whether it is an e-mail, an instant 
message, or sending other data over the Internet.
  This bill does address a lot of key concerns regarding 
telecommunications and the old telephone circuit switch telephone 
network. The bill makes sure that voice-over-Internet-protocol 
providers participate in existing Federal universal service programs. 
In other areas, such as E-911 emergency calling, and disability access, 
the bill calls for an industry group to work out the implementation of 
these important features for the new technology. S. 2281 will make sure 
we do not apply the old access charges to this new technology. We put 
forward a requirement for the FCC to work out a new system for 
intercarrier compensation and, of course, we recognize law enforcement 
will need access to these new voice-over-Internet-protocol applications 
and state it has to be the same or better access but no less than the 
access available for information services that currently exist today.
  Finally, the bill protects consumers by ensuring that this new 
service won't be taxed at the State level. Everyone knows the more you 
tax something the less you get. If you want to discourage investment, 
innovation, and capital from moving into important new services like 
this, then raise the taxes and discourage that investment. From my 
perspective, this would be the wrong direction.

[[Page S3778]]

  I think this bill provides for enormous opportunity for consumers, 
including robust features and functions, more options, and lower 
prices.
  It is important to note that we have narrowly tailored this bill to 
deal with the voice-over-Internet-protocol applications. It should be 
clear that is not an effort to rewrite the 1996 Telecommunications Act.
  I urge my colleagues to take a look at the legislation and step 
forward. Let me know your views and thoughts. We are likely to have 
hearings on this bill in the Commerce Committee in the coming months. I 
look forward to a vigorous and substantive debate.


                          Economic Malpractice

  Mr. HARKIN. Mr. President, before us right now is a motion to proceed 
to what is called the medical malpractice bill, for short. In fact, 
that is what it is--to change the tort system in America to take away 
the right of any person who has been injured to seek redress in court 
for noneconomic damages and also for punitive damages. It is called the 
medical malpractice bill. We have had it here a number of times before. 
It is not going anywhere because it is not a true compromise. There may 
be a compromise that could be worked out on this issue, but this bill 
represents a one-sided view. It is not going anywhere. The Republicans 
know this. They know it is not going anywhere, but they brought it up.
  I thought the FSC bill--the JOBS bill--which they brought up earlier 
was a must-do bill. There was a jobs bill. They are going to put people 
to work. Yet it languishes somewhere.
  In the meantime, we brought up the TANF bill. Now we brought up the 
medical malpractice bill.
  It makes you wonder what the priorities are of the majority party in 
the Senate. There is a lot of talk about who is obstructing what around 
here. But I think it is clear to any casual observer that the majority 
is basically kind of filibustering their own bills, obstructing their 
own bills. And sometimes, as in the case of the gun bill that was up 
before us a few weeks ago, the Republican majority even voted against 
its own bill. But it chews up a lot of time. It takes up a lot of time 
on the Senate floor, but nothing goes anywhere.
  That is what we are facing again with this so-called medical 
malpractice bill, or the motion to proceed to it. The majority party 
knows it is not going anywhere. So they want to talk about medical 
malpractice. There has been a few speakers on the floor today on the 
Republican side talking about medical malpractice.
  I think what the country wants us to focus on and wants to hear us 
debate and discuss and vote on is the economic malpractice of the Bush 
administration. That is right, the economic malpractice of the Bush 
administration.
  I mean by that the fact we have had a loss in jobs in this country 
over the last 3 years unlike anything we have seen in 70 years.
  This chart shows that not since the Great Depression have we had a 
loss of jobs for any President during his first term--some more than 
others, but we have always had a positive indication of job creation.
  It is interesting to note that most of these took place under 
Democratic administrations--Roosevelt, Truman, and Eisenhower had a 
little bit but still had some; Kennedy, we had good job creation; 
Johnson, very healthy job creation; even under Nixon, pretty good; 
Ford, back down; Carter; even under Reagan; Bush, it is down; Clinton, 
up a little bit more. All positive, Republicans and Democrats, until 
this President, the only President in 70 years to have negative job 
growth.
  That is why I call it the economic malpractice of the Bush 
administration--the only President in all of those years to preside 
over negative job growth in our country.
  Not only are we not discussing on the Senate floor these issues 
pertaining to workers, but we are precluded by the majority from even 
offering amendments and getting a vote on them.

  I tried earlier on the so-called FSC bill that everyone talks about, 
the so-called JOBS bill they had here, to offer my amendment to 
disallow the promulgation of proposed rules that would change the 
overtime laws in our country.
  Last year, to refresh everyone's memory, about this time--a year and 
a month ago, as a matter of fact--the Department of Labor came out with 
a proposed change in overtime rules.
  The Fair Labor Standards Act has been in existence since 1938. We 
have had changes in basic overtime laws. But in every single case, when 
it has been done, it has always been done with consultation with 
Congress after open hearings with the public having input.
  These proposed rules came like a bolt of lightning in the midnight 
hour. No public hearings were held. Not one public hearing was held on 
these proposed changes in overtime rules. No hearings were held by 
Congress. No witnesses were called to talk about what these proposed 
changes might mean in the workplace. They just put the rules out there.
  Now the Department of Labor is about to issue its permanent change in 
regulations.
  That is why last summer this Senator offered an amendment on the 
Senate floor to disallow these rules from going into effect. The Senate 
adopted my amendment on a bipartisan vote. We had quite a few 
Republicans vote for it. The House of Representatives then voted to 
instruct its conferees to go along with the Senate on that provision. 
That was on the appropriations bill. The White House came in and got it 
knocked out. Then we were forced to vote on the appropriations bill 
without that provision in it.
  I said at that time in January I was going to find any vehicle I 
could to try to revisit this issue because the Congress had spoken; 
that we did not want these rules to go into effect which would take 
away the rights of up to 8 million American workers to get paid time-
and-a-half overtime if they worked over 40 hours a week.
  The first bill I could do this on was the FSC bill, which was brought 
out by the Finance Committee to the floor. They termed it a jobs bill.
  I pointed out then, and I point out again today: How can you have a 
meaningful jobs bill on the floor of the Senate if we are not going to 
speak about it, debate it, and vote on whether we are going to take 
away the rights of people in this country to get paid time and a half 
for over 40 hours a week? Yet that is what happened. I offered the 
amendment. The majority will not permit a vote on it. They tried all 
kinds of parliamentary maneuvers, tactics, recommits, all kinds of 
funny parliamentary games just to keep us from voting on it.
  I don't know what they are so afraid of. Are they afraid members of 
the President's own party might vote to say those rules shouldn't go 
into effect? They did last summer. I compliment them for it. That is 
courage. I know the President and his Department of Labor want to 
drastically change our overtime laws. They want to do it through the 
regulatory process--not through the legislative process.
  Quite frankly, the Bush administration thought they could put these 
new rules into effect quietly with no hearings before anyone knew what 
was going on. But they were wrong. They got caught with their hand in 
the cookie jar.
  The fact is, public outrage over the proposed new overtime rules has 
gotten stronger and stronger as Americans learn more about the details. 
At this point, the administration has about as much credibility on the 
issue of overtime as they do on the weapons of mass destruction in 
Iraq. In other words, the administration has zero credibility on this 
issue.
  The Department of Labor claims it simply wants to give employers 
clearer guidance as to who is eligible for overtime pay. But ordinary 
Americans are not buying this happy talk. They know the administration 
is proposing a radical rewrite of the Nation's overtime rules. American 
workers know these new rules will strip them of their right to fair 
compensation. So we will continue to press for a vote on this and on a 
couple of other issues.
  Last week on the TANF bill, the temporary assistance to needy 
families, Senator Boxer of California offered the amendment to raise 
the minimum wage, now at $5.15 an hour, to $7 an hour over 2 years. The 
majority will not vote on that, either. So that bill has gone by the 
wayside, too, because they do not want to face the music and

[[Page S3779]]

vote on whether we increase the minimum wage. Mr. President, $5.15 is 
the minimum wage now--mostly women, heads of households with children.
  I point out again, since 1967, if the minimum wage had just kept pace 
with inflation, the minimum wage would be over $8 an hour right now. 
Yet we are only asking for $7 an hour.
  I wonder what the hue and cry would be in this country if we had 
indexed CEO compensation the way we indexed the minimum wage increases 
since 1968. We would probably be better off in this country, to tell 
you the truth.
  So we tried to bring up a minimum wage increase. We tried to stop 
these rules on overtime from going into effect to strip people of their 
overtime. We have tried to increase unemployment compensation, to get 
more unemployment compensation to workers whose unemployment benefits 
had run out. There are 1.1 million workers this last week who lost 
their unemployment benefits because of time running out. We want to 
extend that. The majority will not let us.
  The administration is all for an economic stimulus when it involves 
tax breaks for people making more than $200,000 a year. When it comes 
to economic stimulus involving raising the income of people at the 
bottom of the economic ladder, whether by increasing the minimum wage 
or creating jobs directly, which is what the highway bill will do, the 
President is even threatening to veto the highway bill.
  We passed a bipartisan highway bill in the Senate. The House passed 
something substantially less. The President has threatened to veto 
that. Actually, the House bill for my own State of Iowa would mean 
12,000 jobs less than that passed by the Senate. Yet the President has 
threatened to veto even the House version.
  There is a frustration among American workers right now. They know 
they are working harder. They know they are working longer. But 
something is wrong. They are not getting adequate compensation. As this 
chart indicates American workers are working longer hours per year than 
workers in any other industrialized country. In fact, since 1979, every 
single industrial country has reduced its work hours except one, the 
United States. In Japan, since 1979, they have gone down 286 hours a 
year. Germany has gone down 489 hours per year. Even Canada went down 
31 hours a year. Australia went down 44 hours per year. But the United 
States went up an average of 32 hours per year. We are the only country 
increasing the number of hours worked per year.

  Not only that, as we found out earlier--I quoted the New York Times 
Sunday article by Steven Greenhouse--unscrupulous businesses in America 
are cheating people out of their overtime. I may not have mentioned a 
guy by the name of Drew Pooters, retired member of the Air Force 
military police. He went to work in a Toys ``R'' Us store in 
Albuquerque. He was stunned by what he found his manager doing.

     . . . his manager was sitting at a computer and altering 
     workers' time records, secretly deleting hours to cut their 
     paychecks and fatten his store's bottom line.
       ``I told him, `That's not exactly legal,' '' said Mr. 
     Pooters, who ran the electronics department. Then he out-and-
     out threatened me to not talk about what I saw.

  Mr. Pooters quit. Then he got a job managing a Family Dollar store, 
one of 5,100 in that discount chain. Top managers there ordered him not 
to let employee total hours exceed a certain amount each week. One day 
he said the district manager told him to use a trick to cut payroll, 
delete some hours electronically.
  Experts on compensation say the illegal doctoring of hourly 
employees' time records is far more prevalent than most Americans 
believe. The practice, called ``shaving time,'' is easily done and hard 
to detect with the simple matter of computer keystrokes.
  I earlier had this article printed in the Record.
  The article revealed in Toys ``R'' Us, in Dollar Stores, Taco Bell, 
Pep Boys, Wal-Mart employees, et cetera, workers are basically being 
cheated out of their fair compensation. Many are being cheated out of 
overtime.
  Here is what the Wall Street Journal article said about this:

       While employees like overtime pay, a lot of employers 
     don't. Violations are so common that the Employer Policy 
     Foundation, an employer-supported think tank in Washington, 
     estimates that workers would get an additional $199 billion a 
     year if the rules were observed. That estimate is considered 
     conservative by many researchers.

  American workers are being cheated out of over $199 billion a year by 
unscrupulous employers.
  Here we have the Department of Labor legally--trying to do it 
legally--taking away workers' rights to overtime pay. The Steven 
Greenhouse article in the New York Times showed on Sunday there is a 
rampage in this country of illegal activities taking away workers' 
rights to their adequate pay. Why isn't the Department of Labor 
focusing its time and energy in going after these unscrupulous 
employers, making an example of them so others will not be encouraged 
to do the same thing rather than trying to legally take away workers' 
rights to overtime?
  That is why I say this Bush administration is committing economic 
malpractice.
  You do not have to be from Iowa to know that you do not fertilize a 
tree from the top down. You fertilize the roots. That is how we need to 
stimulate the American economy, by applying stimulus directly to the 
roots. There are obvious ways to do this. One, instead of tax cuts for 
the wealthy, you focus tax cuts on working people. Secondly, you 
increase the minimum wage. You put more money in the pockets of hard-
working people who, by necessity, have to spend every penny. Three, you 
extend benefits for the long-term unemployed, again, who, by necessity, 
are spending every dollar they receive. Four, you pass a highway bill 
that is as generous as possible.
  We need to rebuild our Interstate Highway System in this country. 
Take a drive on any one of them. They are beat up. They are 
disintegrating. They are a patchwork here and there. They are causing 
delays in trucking. They are beating up our cars and taking away from 
the productivity of America. Our bridges need to be replaced. Sewer and 
water systems need to be upgraded.
  These are good jobs. These are jobs that employ Americans. When you 
think about construction jobs in this country, that is what I call 
insourcing jobs rather than outsourcing jobs because, you see, if you 
are building a bridge or a highway, a sewer and water system, or maybe 
a new school, when you think about it, most of the products are made in 
America. Think about it. The cement is made here. The rebars, the 
rerods, and all that for construction are made here. When you put up a 
building, you put up wallboard. That is made here--and electrical 
wiring, electrical conduits, electrical switches, electrical lights, 
plumbing. When you think about all that goes into construction, most--
the vast majority--of the products are made in this country.
  Guess what else. All of the labor done is here in America. You do not 
outsource those jobs. Those are American jobs. What do you get out of 
it? You put a lot of people to work. You improve the productivity of 
America. You get a lasting benefit of things that last for a long time, 
and that helps us be a more productive and vibrant Nation.
  It seems we can spend billions of dollars in Iraq and Afghanistan to 
rebuild those countries. We need to invest money like that here in 
America. For every $1 billion spent on these projects, we sustain or 
create more than 47,000 jobs for American workers. That is the 
direction we ought to be going, rather than more tax cuts for those who 
make over $200,000 a year.
  I do not have it with me, but I saw a cartoon in the paper today that 
I thought said it all. There was a gasoline pump, with gas that cost 
about $1.90 a gallon. This American worker had obviously just filled 
his tank, and he was up at the window paying. In back of the window sat 
what looked like one of the Saudi Arabian princes saying, ``Thank 
you,'' and taking our American worker's money. The caption below it 
was: There goes the tax cut.
  How many American workers, who are told by this President they got a 
tax cut for this or that, are now seeing it go to pay for imported oil, 
to pay for the increased price of gasoline because this administration 
will not take their friends in Saudi Arabia to task to keep these 
prices low, will not let some of the oil out of our Strategic Oil 
Reserve

[[Page S3780]]

right now to counter these increased prices? So we find whatever little 
money the worker may have gotten in a tax cut going to pay for the 
increased price of gasoline. Again, economic malpractice, economic 
malpractice by this administration.

  So we can go to the medical malpractice bill. Quite frankly, again, 
we are focusing on medical malpractice and whether someone can sue for 
damages, and this and that. While there may be a reasonable compromise 
on this issue at some point, this bill is not it. But I wonder--I truly 
wonder--how many of the 43 million Americans who have no health 
insurance coverage whatsoever would think this is the major health care 
issue that we ought to be debating and voting on in the Senate Chamber. 
They are not interested in medical malpractice or suing. They just need 
health insurance. They need coverage for themselves and their families. 
Here we are talking about lawsuits, when what we ought to be talking 
about is how we are going to get health care coverage to people in 
America.
  The other side can talk all they want about obstructionism and who is 
holding up what. We have said, time and time again, as I said on my 
overtime amendment--I am not obstructing anything. I will take a time 
agreement. We have already had enough discussion. In 15 minutes we can 
have a vote. In 15 minutes we can have a vote on the minimum wage. In 
15 minutes we can have a vote on extending unemployment compensation.
  Who is obstructing what around here? It is simply that the majority 
side does not want to have these votes under the time-honored tradition 
of the Senate to debate, discuss, and vote. It seems as if the majority 
side now wants to turn the Senate into just another House of 
Representatives--come out with a closed rule. I know that sounds kind 
of funny. What does that mean? What it means is the majority party 
brings out a bill. You cannot amend it. You cannot change it. You 
either have to vote for it the way it is or not vote. If they have the 
majority votes, they want to pass it.
  That is not the way to run the Senate. It is not the way to debate 
and vote in the Senate. The way to do it is to have our debates, have 
our votes, and move on. Sometimes you win; sometimes you do not. But, 
to me, that is what the American people want us to do.
  We are doing nothing in the Senate right now--nothing. The reason we 
are doing nothing is because the other side will not let us vote. So 
here we sit with bill after bill that is brought out, trying to game 
the system so we cannot have votes on these meaningful issues.
  They say: Well, these are just political games. No, they are not 
political. When you are talking about taking away a worker's right to 
overtime pay; when you are talking about increasing the minimum wage 
for a single mother with kids to feed, who is being cheated out of her 
overtime pay; when you are talking about a family whose unemployment 
benefits have run out, and they do not know where to turn, it is not 
political. It is just focusing on the real needs of America--our 
working families--and not focusing on giving yet more tax breaks to 
those who already have too much in our society.
  Mr. President, I will close my remarks--I see others want the floor--
to say we will be back. I do not like to quote too much the present 
Governor of California but: I'll be back.
  Time and time again, I will be back to offer this overtime amendment, 
until we have a vote on it, and until we can express ourselves on these 
onerous rules that the Department of Labor wants to foist on the 
American worker.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, tomorrow we will cast an important vote for 
our constituents. Once again we have come back to the Senate floor to 
press for legislative change on an issue that is critical to health 
care for all Americans. Time and again we have attempted to stop 
skyrocketing health care costs due to the runaway tort system under 
which trial lawyers abuse the court system with spurious claims that 
drive up insurance premiums for physicians and hospitals and drive them 
to practice expensive defensive medicine; in other words, performing 
costly and unnecessary procedures to be sure they won't be sued.
  Last year I was a cosponsor of S. 11, the Patients First Act of 2003. 
The Democratic minority precluded us from completing work on that 
legislation. In February, we targeted a very narrow range of the 
medical profession to try to see if our colleagues would help us out in 
one area, the OB/GYN specialty, with S. 2061, called the Healthy 
Mothers and Healthy Babies Access to Care Act. Again the Democratic 
minority denied us cloture so we could not consider the bill.
  It is time to stop this obstructionism. Here we are again. This time 
I hope my colleagues will join in voting for cloture so we may enact 
the needed reforms to the medical liability system.
  This legislation addresses lawsuits for health care liability claims 
related to the provision of obstetrical, gynecological, emergency, or 
trauma care. With good reason, we again include the OB/GYN specialty. 
The dramatic increase in OB/GYN premiums--more than 160 percent over 
the last 16 years--has greatly outpaced the rate of inflation, and many 
physicians and hospitals have been unable to keep up with these 
escalating costs. In my State of Arizona, OB/GYN practices face 
premiums averaging $67,000, up 16 percent in just 1 year's time. Think 
of this for a moment. I am not sure what the average salary or wage of 
an American earner is today, but it is nowhere close to $67,000. That 
is what your OB/GYN doctor has to pay before he or she can even think 
about delivering your baby. That is the cost we have driven up.
  My colleague from Iowa talked about the large number of people who 
can't afford health insurance. This is one of the reasons they can't 
afford health insurance. We have so driven up the cost of practicing 
medicine and the cost of health care by virtue of this broken tort 
system that a lot of people can't afford insurance and, in fact, 
employers can't afford to provide insurance for them. Let's do 
something about it. This legislation does something about it.
  I would like to share the account of a physician in Paradise Valley, 
AZ, a woman with whom I spoke about 3 or 4 weeks ago who told me the 
story of her desire from the time she was a preteen to deliver babies 
and how she worked hard all through school to get good grades so she 
could go to medical school and eventually complete her residency. She 
did that. She had started out as a little girl volunteering in the 
hospital. She always wanted to deliver babies. After hard work and her 
degree, she ultimately delivered more than 5,000 babies over the course 
of 17 years. By the way, the vast majority were without any 
complications, and she has one of the best reputations as a physician 
in our community.

  On one occasion, much to the surprise and dismay of the labor and 
delivery team, a baby was delivered with complications and cerebral 
palsy. While a group of doctors conducted a peer review of the case and 
determined there was no fault on the part of any of the physicians, the 
doctor who delivered the baby--this woman of whom I speak--3 years 
after the incident got sued.
  Initially the plaintiff requested $2 million which was her insurance 
policy limit. Deciding it was better to settle and avoid long, costly 
litigation, the insurance company persuaded her to offer to settle the 
case, which she did. But then the plaintiff asked for $10 million from 
the physician and another $5 million from the hospital. This highly 
competent, highly dedicated, and motivated physician found herself 
consciously practicing medicine differently. For instance, performing a 
lot more cesarean deliveries in order to lessen the risk of 
complications to the baby, just in case. She was filled with a new 
anxiety that had never been present before. Frankly, she said it took a 
lot of joy out of the work she had enjoyed so much for the previous 17 
years.
  Eventually she stopped delivering babies because of the skyrocketing 
insurance premiums due to the claim that had been filed against her 
and, candidly, because of the trepidation she felt now she had been 
sued and the fact she might be sued again. Incidentally, her case was 
ultimately settled for less than the policy limits. But here is a

[[Page S3781]]

physician who was a tremendous contributor to the profession, to our 
community, to the health of mothers, and the health and viability of a 
lot of new babies. She is no longer practicing her profession because 
of the tort system. This physician's story is far too common. It needs 
to be addressed, and we can address it through the legislation before 
us.
  In addition to the reforms for obstetricians and gynecologists, S. 
2207 will cover physicians who treat patients in emergency 
circumstances--not just in the emergency room but in any emergency 
circumstance--from frivolous lawsuits. Many physicians find themselves 
distanced from what led them into the profession in the first place--
their desire to help people, just as the physician I talked about. 
Emergency rooms and trauma centers are flooded with patients who need 
help from accidents and disasters, all very unfavorable situations. 
These professionals give their very best to try to address the patient 
regardless of the circumstance, without even asking whether they have 
the ability to pay, focused on stabilizing the patients and providing 
excellent care.
  Imagine the effect on the physician and the hospital when after 
treating a patient in an emergency situation, they are faced with a 
lawsuit, particularly a lawsuit that does not have merit or seeks an 
excessive award. The result is frequently the emergency rooms are 
understaffed, sometimes even have to close. The trauma centers are 
losing specialists and, in some cases, closing. The physicians are not 
there to provide this kind of emergency care.
  Since no one knows exactly whether and where an emergency will take 
place, this legislation covers emergency services anywhere, not just 
those that occur in the emergency room. For example, if a family 
practitioner assists a person in an emergency at a mall where 
somebody had a heart attack, the doctor would be subject to the 
protection of this bill. If an internist helps a person in an 
automobile accident at the side of the highway and assists that 
individual, that care would also be protected by this legislation.

  The benefit of this legislation is while it makes specific reference 
to the OB/GYN doctors, it also addresses any emergency services, not 
just those performed by emergency room physicians or in a trauma 
center.
  As with previous bills, this legislation will hold physicians and 
insurers accountable for medical expenses in instances when they are 
clearly wrong. S. 2207 will maximize returns to the patients instead of 
the trial lawyers by setting percentage caps on contingency fees. These 
are the fees the lawyers receive. The bill would allow lawyers to be 
well compensated for their work but not at the unfair expense of the 
plaintiffs. Patients would have 3 years from the date of injury to 
bring forth a claim. In the case of minors, that statute of limitations 
would be extended.
  The bill will allow for unlimited awards of economic damages but 
place reasonable caps on the so-called noneconomic damages or pain and 
suffering damages. If we can pass S. 2207, we should therefore see 
tremendous benefits: a reduction in the backlog of these cases in our 
courts; a reduction and perhaps elimination of these excessive jury 
awards; a reduction in the amount of money paid by the insurance 
companies to settle the cases. They incur great expenses in defending 
the cases in court and even processing the claims for settlement. Even 
those that are dismissed cost money. Physicians spend a large amount of 
money to defend themselves even in those cases they win. A large number 
of these cases are settled out of court to prevent the so-called mega 
award, the big award that can bankrupt a practice.
  But something else will happen if we pass this bill. As I said, my 
colleague from Iowa complained about too many people not having 
insurance and one of the reasons why is because it has been expensed 
beyond their ability to pay or their employer's ability to pay. Why? 
Because the insurance company has to take into account these 
malpractice awards, even the possibility a physician will be sued. 
Imagine this: When a physician has to pay $67,000 in premiums for the 
ability to deliver babies, think about how that additional cost has to 
be shifted to the beneficiaries, the patients, the people who receive 
the care, because the insurance companies have to make sure whatever 
happens, their costs are covered.
  So if we are going to talk about making it easier for people to get 
insurance, making it easier for physicians to be able to continue their 
practices, for hospital emergency rooms to continue to stay open, and 
all of the other kinds of care to be provided, even that situation 
where you have a wreck on the side of the road and a doctor stops and 
renders emergency care to you--any one of those situations--then we 
need to deal with this bill tomorrow.
  This has been around far too long, and tomorrow is our opportunity to 
right this wrong, vote for cloture, and enable us to take a final vote 
on the bill. We should not condone a system that literally forces 
physicians to retire early, as the physician from Paradise Valley I 
spoke of had to do. Sometimes they relocate to a different State with 
friendlier laws. We should not force that either. Sometimes they drop 
high-risk services or they go into teaching or hospital administration. 
We lose a lot of very competent physicians that way. This leads not 
just to improper staffing among physicians, obviously; more important, 
it compromises patient care.
  We have heard the patient and physician stories and we have seen the 
charts about the skyrocketing costs. We know of the facilities that 
have had to close, emergency rooms and labor and delivery sections--all 
as a result of the high cost of a broken tort system. I ask my Senate 
colleagues to join me in support of S. 2207 so we can provide quality 
health care to citizens across this Nation.
  Mr. President, our constituents deserve nothing less, and that is all 
we are asking for tomorrow--to give our constituents a chance to 
receive the best health care they can receive, the best health care our 
system can provide. That is not occurring today and, far worse, it is 
going to continue to deteriorate in the future if we allow the trial 
lawyers and those who serve the trial lawyers to continue to obstruct 
this commonsense legislation.
  I urge my colleagues to end the obstructionism, end the partisan 
bickering. Our constituents sent us here to accomplish and work 
together for sound results. Everyone knows we need this kind of reform. 
The vote tomorrow is a vote to determine whether there will be a final 
vote on the bill. It only takes 40 Senators on the other side to say, 
no, we won't allow a vote to occur. That is a filibuster. That is 
obstructionism. That is a negative, partisan unwillingness to allow the 
will of the majority to work on behalf of the people of this country.
  I urge my colleagues tomorrow to please support the cloture vote, 
which will enable us to get to a final vote on this important bill. If 
we do that, I think we can go home this fall and all be very proud, 
whether we are Democrats or Republicans, or others, tell our 
constituents we accomplished something for them in the area that 
perhaps, other than freedom, is most important for every one of us, and 
that is quality health care. We owe our constituents nothing less.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Alexander). Without objection, it is so 
ordered.
  Mr. SESSIONS. Mr. President, the Pregnancy and Trauma Care Access 
Protection Act of 2004 that is now before the Senate is a matter of 
very real importance to real Americans. I have a good friend, an 
obstetrician, in Mobile, AL. We go to church together. He teaches 
Sunday school class. He is a former president of the State association, 
as I recall. He was talking to me at church a few months ago about a 
doctor who left the practice. His malpractice insurance was around 
$80,000, and he delivered around 80 children a year. That is $1,000 per 
delivery that doctor paid for malpractice insurance.
  This is a reality. I was with a doctor I know from the group that 
treats my mother in Mobile, AL, just a week ago, and he told me people 
in the profession are retiring earlier and earlier because they are 
getting tired of the stress and

[[Page S3782]]

strain of being micro-managed through litigation; that people do not 
have to do that after a number of years and good people are leaving the 
practice over this issue.
  Everybody in this body will say we need to do something about it; it 
is time for us to fix it; there is a problem; and we need to do this 
and that. But there is a strong influence, I have to say, from the 
trial bar in the Senate. They are very active politically, everybody 
knows it. They are aggressive, and they contribute large sums of money. 
Just a very few lawyers contribute large sums of money to political 
campaigns, and so far they have been able to block reforms.
  The Senator from Kentucky, the assistant majority leader, Mr. 
McConnell, proposed legislation that would eliminate lawsuits against 
restaurants and food companies if somebody gets fat. You go to the 
store and you ask for Little Debbie's. They sell them to you. That is 
what you want, isn't it, for Heaven's sake? They want to sue the 
company that gave the customer what they wanted. It is legal, so there 
should not be a cause of action under any definition of law.
  At that hearing, the premier witness, without a doubt, was Professor 
Schwartz, who is the editor of the most widely used textbook on torts 
in America. We got into a little bit of a philosophical discussion 
because some people suggest that it somehow is not legitimate that we 
in Congress should pass a law involving lawsuits; that it ought to be 
left to the sanctified courts; that they are somehow better than the 
political branch, and that we ought to never pass a law that affects 
the courts. Of course, that is hogwash. I asked him about that, and he 
said it plainly and we discussed it at some length.
  Congress says what the statute of limitations is. If you file a 
lawsuit within 2 years, 5 years, 6 years, but 1 day late, you have no 
lawsuit; it is out; the statute of limitations runs. Congress sets that 
limitation. Every State has limitations on damages. We create causes of 
actions that have never existed before by explicit statutory action.
  There is a law in the code that if somebody rolls back your odometer 
and you sue them, you get an automatic $1,500 if you can prove they 
rolled back your odometer. In Kentucky, I am sure they roll back some 
odometers. Most cars we get in Alabama are rolled back in Tennessee, 
Mr. President, and are shipped to the State. We created that cause of 
action--it never existed before--for actual damages, whatever would be 
sufficient. I filed a lawsuit under it one time.
  I say all that to say Professor Schwartz is correct. We have every 
right to look at what is happening in America. I am not going to talk 
at length tonight, but I say we have a serious problem in this country 
that is impacting health care in America. It is reducing the number of 
physicians who are willing to practice, particularly to deliver babies.

  I was in Ashland, AL, the hometown of Gov. Bob Riley of Alabama, in 
Clay County. I visited their hospital because our prescription drug 
bill did a lot for rural hospitals. We had a big meeting and everybody 
was there. They talked about how the year before they had given up the 
delivery of babies in Ashland, AL, at that hospital. They no longer 
deliver babies in the State. I have some numbers that were pretty 
dramatic to me that indicated how many of these hospitals had quit 
delivering children. Why? Because they get sued. The amount of 
malpractice it takes to do that is rather dramatic.
  According to the Alabama Department of Public Health, only 58 
hospitals in Alabama have labor and delivery services. That is down 
from 70 in 1999. Twelve hospitals since 1999 have quit delivering 
children. Only 14 of the hospitals that are left have full-time 
neonatologists and neonatal intensive care units. Those 14 are located 
in the five biggest cities: Birmingham, Montgomery, Mobile, Huntsville, 
and Tuscaloosa.
  Those are big issues. Thirty-four of the 67 counties in the State do 
not have OB delivery services. That was not true 30 years ago. This is 
a recent trend. Sometimes it is better, I will admit, that a person go 
to a hospital, but we have a lot of people who believe in midwives 
because of the bonding and the personal attention a mother gets. They 
believe in that. I am not a believer in that. But a good doctor who 
knows the family, who knows the mother, maybe they go to church 
together, who cares about the family, used to deliver babies in a large 
way in Alabama. That kind of practice is going away today. We are 
creating a circumstance in which fewer and fewer people are willing to 
undergo that type of practice.
  Health insurance is way up. The delivery of health care has been 
constricted as a result of unnecessary, oftentimes illegitimate 
lawsuits. In fact, it has almost gotten to the point where a physician 
who delivers a child is held to be a guarantor of the healthiness of 
that child.
  If something is wrong, too often somebody looks around to find 
somebody to sue; the doctor who did it or the hospital in which it was 
delivered is the one who is sued.
  Mr. McCONNELL. Will the Senator yield for a question?
  Mr. SESSIONS. I would be delighted to.
  Mr. McCONNELL. It occurs to the Senator from Kentucky, in listening 
to observations of the Senator from Alabama, what has evolved in 
America is that we believe we are a society of victims, everybody is a 
victim? If somebody is wrong in my life, if I have a bad outcome in my 
life, it must be somebody else's fault. So beyond the obvious abuse of 
the legal system, it encourages the notion that personal responsibility 
is no longer a factor in American life.
  I ask my friend from Alabama if he is also disturbed about this 
growing notion that I have no responsibility for the outcomes in my 
life, if anything goes wrong it must be somebody else's fault and 
obviously the solution to that is to sue.
  Mr. SESSIONS. I think the Senator from Kentucky is exactly correct. 
We do have far too much of that. We have a lawsuit lottery mentality, 
jackpot justice. People file suits and they seek huge amounts of money 
in hopes they will recover.
  My daughter does some defense work in a law firm. She is a lawyer. 
She was telling me about a nursing home case, and a person had bed 
sores, and there was a big lawsuit. She said, you know what they 
discovered? They had learned in some way that Ronald Reagan had bed 
sores.
  These kind of things can happen, but they were having to pay a large 
amount of money. Maybe they were negligent, maybe they deserved to pay, 
but I just say there is this mentality that if something goes wrong 
somebody has to pay. As the Senator from Kentucky knows, the one who 
pays is the one who has insurance. That means the hospital or the 
doctor normally. They are the ones who are getting whacked. It may be 
that nobody investigated to see if maybe the mother drank alcohol too 
much during the pregnancy or something. Any number of things could have 
occurred that would have caused that.
  I conclude by saying I am pleased to see this legislation move 
forward. It is not insignificant. I am hearing from my physicians that 
they feel strongly that the quality of their lives, as well as the 
excellence of their practice, have been adversely impacted by 
litigation.
  A doctor was in my office recently who is a leader in the medical 
association. He said, Jeff, I am telling you maybe as much as 50 
percent of the medicine we practice is driven out of fear of lawsuits. 
We could reduce the cost of medicine by a tremendous degree if we could 
contain the threat of lawsuits.
  There is no doubt that lawsuits have recompensed people who needed it 
for a wrong. When a person commits a wrong, they should pay. There is 
no doubt about it. I know the Presiding Officer and the Senator from 
Kentucky, in their law school there was a community standard of 
excellence.
  Everybody is not expected to be the best surgeon in America. Everyone 
is not expected to be the best lawyer in America. Take somebody who is 
a professional and they were expected to give the best skilled work 
they could give under the circumstances. They should not be found 
negligent. They should not ignore a patient. They should not fail to 
give the kind of care

[[Page S3783]]

that everybody knows ought to be given. But just because one person has 
a steadier hand or has more experience maybe and can do a surgery 
slightly better than another one does not mean, and never has meant 
under American law, that there is a liability question.
  I think the Senator from Kentucky is correct. What has concerned me 
is the erosion of the standard of negligence and error. A physician or 
a hospital should commit an error, negligence, before they should be 
required to compensate someone who has had an unfortunate result in 
that hospital. We have gotten away from that.
  This bill, of course, allows for full recompense for damages and 
injury for any cost for medical care; any cost for future treatment or 
hospitalization, which in a lifetime could be millions of dollars; 
$250,000 in pain and suffering, in addition to the compensatory costs; 
and $250,000 or twice the compensatory damages for punitive damages. 
Those things are allowed for in the bill; it just simply says there is 
a limit.
  When a person can sue somebody for $50 million and get a jury--juries 
really have a difficult time deciding between $2 million and $30 
million, and they come up with $15 million. How did they come up with 
that number? This says that one gets fully compensated for however much 
it costs, for any damages that are sustained as a result of the 
negligence of a physician. In addition to that, one can get punitive 
damages and pain and suffering, but it is limited. I think that would 
go a long way to making lawsuits settleable so both sides know the 
framework they are operating under. Then a lawsuit can be settled. 
Without a limit on the top, it is very difficult to settle that 
lawsuit.
  I believe this is good legislation. I hope it can move forward. I 
hope we do not see it obstructed and blocked as we have others. I hope 
we can get an up-or-down vote.
  I yield the floor.
  The PRESIDING OFFICER. The assistant majority leader.
  Mr. McCONNELL. Mr. President, before the Senator from Alabama leaves, 
I want to thank him again for the hearings he held on the Commonsense 
Consumption Act, not the bill before us today but another measure that 
makes, as the title implies, common sense. The common sense embedded in 
that bill is that it is improper to sue a food manufacturer or a 
distributor for damages claiming that the seller made you overweight. 
It is simple justice. It would not deny any of the traditional claims 
against a distributor or manufacturer of food, but it would prevent 
such a ridiculous lawsuit.
  The American people overwhelmingly support this legislation by well 
up into the 80 percent. The legislation passed the House of 
Representatives by an overwhelming bipartisan vote and is at the desk 
in the Senate. Hopefully sometime this year we will get an opportunity 
to call that up and see if maybe the Senate will let us at least pass a 
very modest legal reform bill that deals with a problem that is 
beginning to evolve in our society of victimhood.
  Mr. SESSIONS. If the Senator will yield, I would note that Professor 
Schwartz, as I said, the editor of the most utilized textbook on 
lawsuits and torts in America, strongly supports the legislation. He 
feels it is appropriate. I will ask the Senator, does he not agree, 
based on his experience as an attorney, that we have muddled over and 
glossed over the question of fault?
  In the Senator's bill, if they sell food that is contaminated and a 
person gets sick, if they sell food that has a bug in it or something, 
somebody can still sue. If the food is unhealthy a person can sue, but 
if it is perfectly healthy food and it is the food one ordered they 
ought not to be able to bring a lawsuit. Is that not the intent of the 
Senator's legislation?
  Mr. McCONNELL. The Senator from Alabama is correct. That is, of 
course, the underlying principle of this legislation. I thank him for 
having the hearing and for giving people an opportunity to come forward 
and have their say on this important legislation.
  As I said, it is at the desk and we hope sometime during the course 
of the second session of this Congress we will have a chance to address 
it.
  Mr. SESSIONS. One more question. Has not the question of fault always 
been the cornerstone of American law with regard to lawsuits and 
negligence and liability, that somebody has to be at fault, have done 
something beyond the standard of care to cause a damage? That is when 
there is a lawsuit. Is not getting away from that one of the reasons 
that we are having so much abuse in the legal system?
  Mr. McCONNELL. That is what we always were taught. As the Senator 
indicated, in school that is what tort law was about. If one was not 
negligent, if they did not cause the harm, they should not be held 
liable. We have gotten away from that in this country. It is a very 
dangerous trend. It is time for the Congress of the United States to 
begin to redress this imbalance. I thank my friend from Alabama.
  Mr. President, on the matter before us upon which we will be voting 
cloture on the motion to proceed tomorrow, the Pregnancy and Trauma 
Care Protection Act introduced by Senator Gregg and Senator Ensign, 
this is our third attempt this Congress and our second attempt in 6 
weeks to try to do something about the medical liability crisis that is 
forcing patients all across the country to go without critically 
important medical services. On both previous occasions, a majority of 
the Senate has voted to try to solve this problem.
  Unfortunately, though, only one brave soul on the other side of the 
aisle voted to support even taking up such a measure.
  But hope springs eternal and maybe the third time is a charm. So we 
come back to the Senate to try once again to give our colleagues on the 
other side of the aisle a chance to join us in implementing real 
reforms for a problem that is all too real for many of our fellow 
citizens.
  As we did the last two times, we brought reform legislation to the 
floor. We are offering the American people a proven remedy--not a 
placebo. The bill we hope our colleagues will let us consider, like its 
two predecessors, is based upon California's successful MICRA reforms. 
The Pregnancy and Trauma Care Access Protection Act would allow 
plaintiffs to recover unlimited economic damages--up to a quarter of a 
million dollars in noneconomic damages and punitive damages up to the 
greater of a quarter million dollars or twice the economic damages.
  We recognize the reluctance of some of our colleagues to implement 
MICRA's reform on a nationwide scale, proven though these reforms are. 
So rather than propose the comprehensive reform we tried to advance 
last year for all medical practitioners, we are attempting a modest 
first step. The provisions in S. 2207 would apply only to two of the 
medical specialties that are suffering the most in this crisis: OB/GYNs 
and emergency care services. That is all this bill would touch.
  Though extremely modest in scope, this bill is crucial to protecting 
the doctors who practice in these two areas and the millions of 
American patients who rely on them. For example, OB/GYNs provide some 
of the most critical medical services. Sadly, they also bear the 
highest premiums. As a result, women and children across our country 
are placed in danger as they struggle oftentimes unsuccessfully to find 
even basic obstetrics care.
  In addition, emergency room doctors are the primary care physicians 
for many Americans. According to the Alliance of Specialty Medicine, 
each year there are 110 million visits to emergency departments. More 
than 90 percent of these visits are patients who need to be seen in 2 
hours or less. And approximately 28.3 million Americans visit the 
emergency room each year due to an accident or unintentional injury. 
Ninety-nine percent of those patients will recover after receiving 
lifesaving care from an ER or trauma center.
  Thus, when ER doctors and trauma care physicians curtail their 
practices or go out of business altogether because of the medical 
liability crisis, the people who suffer the most obviously are the 
American families.
  Let us turn to the crisis in Kentucky. This chart illustrates 
Kentucky's crisis in obstetric services.
  Sixty percent of Kentucky's counties are without OB/GYNs.
  This chart takes a look at the counties. The red counties, which the 
occupant of the Chair and our colleagues can see, are many counties. 
Sixty-nine of one hundred twenty counties in Kentucky have no OB/GYN.

[[Page S3784]]

  In addition to that, the next chart illustrates the availability of 
emergency services in Kentucky. 43 percent of Kentucky's counties are 
without emergency room physicians. That is 52 of the 120 counties.
  All of the red counties all across the Commonwealth of Kentucky have 
no ER doctor at all--none.
  Another 21 percent of Kentucky counties have only one specialist in 
emergency medicine for the entire county.
  So you can see in our State, the Commonwealth of Kentucky, there is a 
serious crisis--an absence of OB/GYN care and an absence of emergency 
room doctors. A principal reason for that, not surprisingly, is the 
medical malpractice crisis that we have in the Commonwealth of 
Kentucky.
  This is a serious problem. We have county after county in crisis. 
Just to give you an example, Perry County in southeastern Kentucky 
technically has a practicing OB/GYN. But that one doctor stopped 
delivering babies during the last year. If you are in Perry County, it 
doesn't do you much good. They have an OB/GYN but she does not deliver 
babies.
  Eighty-two of Kentucky's one hundred twenty counties don't have 
either an obstetrician or have one obstetrician.
  This is a serious problem in the Commonwealth of Kentucky.
  Six weeks ago, when we were asking our colleagues to consider the 
Healthy Mothers and Healthy Babies Access to Care Act--S. 2061-- I 
discussed the crisis in obstetric and gynecological services in my home 
State of Kentucky.
  Kentucky does not have liability reform. Not surprisingly, liability 
insurance rates for OB's in Kentucky, for example, increased 64 percent 
in just 1 year, from 2002 to 2003. Also not surprisingly, in just the 
last 3 years, Kentucky has lost one-fourth of its obstetricians. 
Moreover, Kentucky has lost nearly half its potential obstetric 
services during this time, when one factors in doctors who have limited 
their practices.
  According to the Kentucky Medical Association, 60 percent of the 
counties in Kentucky do not have any OB-GYNs.
  Other counties, such as Perry County in southeastern Kentucky, 
technically have a practicing OB-GYN, but that one doctor has stopped 
delivering babies within the last year. So if you are in Perry County, 
that doesn't do you much good.
  Another 8 counties--like Greenup, Lawrence, and Johnson Counties in 
northeast Kentucky--have just one OB-GYN in each county.
  So if you are a woman in these counties, you had better hope that 
there isn't another woman having a baby at the same time you are, or 
that the doctor is not out of town or busy with another patient. If 
that happens, then you are going to have to drive through the hills on 
the back roads of eastern Kentucky to try to find a doctor to deliver 
your baby.
  All told, 82 of Kentucky's 120 counties have no OB's or have just one 
OB.
  Now, you may be thinking that, although this is far from ideal, 
couldn't the women in these situations simply go to the emergency room 
and have an ER doctor deliver their baby? Maybe in the old days women 
could do this, but they can't do this anymore.
  Another casualty in the medical liability crisis has been in the 
provision of emergency medical services. According to the Kentucky 
Medical Association, medical liability premiums for ER physicians 
increased, on average, an astounding 204% from 2001 to 2002!
  The situation of Dr. David Stanforth is illustrative. He is a partner 
in an emergency medicine group serving three hospitals in Northern 
Kentucky. Dr. Stanforth had his malpractice insurance cancelled 3 years 
ago and then switched insurance policies to obtain coverage. His 
premiums have since tripled to $800,000 per year, even though there 
wasn't a malpractice award against his ER group during that period.
  The result of situations like Dr. Stanforth's are all-too-
predictable.
  According to the Kentucky Department of Public Health, 43% of 
Kentucky counties do not have any doctors specializing in emergency 
medicine. Another 21% of Kentucky counties have only one emergency room 
physician. All told, then, 64% of Kentucky counties do not have any ER 
doctors or have only one ER doctor for the entire county.
  To come back to the crisis in obstetric services that I was 
discussing, if you are a woman in eastern Kentucky who is delivering a 
baby, not only are you not going to be able to find an O.B. to delivery 
your baby. You are not going to be able to find an ER doctor to help 
you either. Instead, you are going to have to drive until you find some 
doctor--any doctor--if you're lucky, to help with your delivery.
  Unfortunately, too many women are not so lucky. They end up 
delivering their babies in the backseat of a car or on the side of the 
road.
  This situation cannot continue. I applaud Senators Gregg and Ensign 
for their determination to do something about this crisis. I hope my 
colleagues on the other side will let us try to solve this problem with 
meaningful reform and will vote to invoke cloture on the motion to 
proceed.
  I thank the Chair.
  I will conclude by saying the principal reason for the crisis is the 
rising cost of medical malpractice insurance, and the inability of 
these physicians, dedicated though they may be to public health and 
serving people in the Commonwealth of Kentucky, who simply can't afford 
to stay in business. They cannot make a living doing what they went to 
medical school to do and what they want to do with their lives, which 
is to take care of women and babies and to save people in the emergency 
rooms of the Commonwealth.
  We will have an opportunity tomorrow, once again--as I said earlier, 
hopefully a third time will be a charm--to take the simple step of 
going to the bill and giving us an opportunity in the Senate of 
addressing what is indeed a national medical crisis.

                          ____________________