[Congressional Record Volume 150, Number 48 (Wednesday, April 7, 2004)]
[Senate]
[Pages S3877-S3880]
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 Senate will 
resume consideration of the motion to proceed to S. 2207, which the 
clerk will report.
  The assistant legislative clerk read as follows:

       Motion to proceed to the 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 services.

  The PRESIDING OFFICER. Under the previous order, the next 2 hours 
shall be equally divided between the two leaders or their designees.
  The Senator from New Hampshire.
  Mr. GREGG. Mr. President, we now return to the issue of how we make 
health care more affordable and accessible to the American people. This 
bill will try to reduce the liability, the insurance costs of doctors 
who deliver babies and doctors who work in emergency rooms, making the 
practice of those different disciplines more attractive to doctors and 
allowing, therefore, especially women who are having children more 
access to doctors. Especially in rural areas this is a huge problem 
because so many OB doctors have had to give up the practice of medicine 
because of the cost of their liability insurance. We return to that 
bill.


                  Unanimous Consent Request--H.R. 633

  But before we go on to that bill, I think it is important that we 
address other legislation that could also significantly reduce the cost 
of health care in this country and improve its delivery. One such piece 
of legislation has been reported out of the committee which I have the 
privilege to chair, which is the Health, Education, Labor, and Pensions 
Committee. It was reported out unanimously--unanimously. It is the 
patient safety bill, and it basically is structured so that it does, 
for example, make information as to how errors occur within the medical 
profession more available within the medical profession so people in 
the medical profession can learn from these errors.

  Today, regrettably, if you have an experience of doing a procedure 
inappropriately, having a medication which is inappropriately applied, 
or having an operating room that may not be set up correctly, and as a 
result errors result from that type of activity which lead to injury or 
problems for patients, that information is kept very close. It is not 
made available generally to the medical profession for the obvious 
reason that they will be sued.
  What this bill does is essentially try to create a better atmosphere 
for allowing that information to be shared

[[Page S3878]]

and, thus, reducing medical errors. We know, for example, that there is 
a huge number of people in this country every year who are impacted by 
medical errors and that there are 98,000 preventable deaths that occur 
as a result of medical errors. This information would significantly 
reduce those occurrences by allowing this information--the information 
of how these errors occur--to be shared within the medical community.
  It would create a system for voluntary reporting of medical errors. 
It would establish Federal evidentiary privilege and confidentiality 
protections to promote the reporting of medical errors. It would 
produce better procedures, interventions, and safety protocols for 
eliminating errors and improving quality of care. It would permit 
safety data to be shared and disseminated nationally so other 
caregivers can learn from mistakes that have occurred without the fear 
of litigation.
  It is excellent legislation, such strong legislation, in fact, that 
it was reported unanimously out of the committee which I have the 
privilege to chair. Yet it has been stopped on the floor for reasons I 
find difficult to understand. I know it has cleared our side of the 
aisle, that the Republican membership is willing to move on it. In 
fact, we are willing to move on it by a voice vote on this side of the 
aisle.
  At this time I ask unanimous consent that the HELP Committee be 
discharged from further consideration of H.R. 633, the Patients Safety 
Act, and the Senate proceed to its immediate consideration.
  The PRESIDING OFFICER. Is there objection? The Senator from Nevada.
  Mr. REID. Mr. President, I agree with the chairman of the committee. 
The committee has done a tremendously important job on this bill. It is 
something we need to do.
  As indicated, this patient safety bill--I should say as indicated by 
the chairman--is something that is so vitally important. There are news 
articles about the fact of patients not being treated properly. One of 
the reasons is simply we don't have information from various 
institutions as to what has happened.
  To make a long story short, we have a bill before us. There is an 
amendment. We have had a couple of Members on our side who want to 
simply look at the amendment. I am confident this is something that can 
be done in the near future. I look forward to working with the chairman 
and the other members of the committee to make sure we can move this as 
quickly as possible. Therefore, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. GREGG. Mr. President, I would inquire of the assistant leader of 
the Democratic membership if there is a timeframe when we could bring 
this bill to the floor.
  Mr. REID. I will meet sometime or visit with the ranking member, 
Senator Kennedy, later today and try to get a timeframe. I think we can 
do this fairly quickly.
  Mr. GREGG. That would be excellent. I appreciate the response of the 
Senator from Nevada.
  Mr. REID. If the Senator will yield for a unanimous consent request, 
we have 10 minutes left on our side on the debate on the cloture 
motion. I yield that final 10 minutes to the Senator from Illinois, Mr. 
Durbin.
  Mr. GREGG. Mr. President, I have the floor, correct?
  Mr. REID. We are just giving our final 10 minutes to the Senator from 
Illinois. Forty minutes to Senator Byrd, 10 to Mr. Dayton, and now we 
are giving 10 minutes to the Senator from Illinois.
  Mr. GREGG. At this time, I yield to the Senator from Nevada such time 
as he may consume.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, I thank the chairman of the HELP Committee 
for the work he has done to bring this legislation to the floor of the 
Senate, trying to get an up-or-down vote, or just trying to proceed to 
debate this bill.
  For those people around the country who do not understand the way the 
Senate works, we have to have 60 votes to proceed to the bill on 
reforming our medical liability system. We have to have 60 votes to go 
to the bill, to amend it, and then to vote it up or down. It is a shame 
the Democratic side of the aisle is not even allowing us to have an up-
or-down vote on this incredibly important legislation.
  Today 19 States across the United States are in full-blown crisis, 
according to the American Medical Association, regarding medical 
liability. Only six States are stable because of the reforms they have 
in place. OB/GYNs, emergency room physicians, and trauma doctors are 
the hardest hit, but they are not the only ones. From 1982 to 1998, the 
average premium for OB/GYNs rose 167 percent. In 2002, the average 
premium for emergency room physicians rose by 56 percent. In Las Vegas, 
OB/GYNs have seen a 300- to 400-percent increase in their premiums as 
of late. Three years ago they paid around $40,000 a year; now they pay 
upwards of $200,000 a year.
  To help curb the cost, OB/GYNs are limiting the number of babies they 
deliver, and some of them are no longer delivering babies at all and 
are only practicing gynecology. In fact, many of them are leaving our 
State altogether.
  This crisis has now grown to affect our students in medical schools 
across the country. Nevada is really suffering because it is the 
fastest growing State in the country. Medical students are now avoiding 
high-risk specialties. Nevada's school of medicine had the lowest 
number of students entering obstetrics it has had since 1999. That 
number has decreased every year since 2000.
  Nationally, half of all medical students indicate the liability 
crisis is a factor in their choice of specialty. For osteopathic 
students, the numbers are even worse. Eighty-two percent say cost and 
availability of insurance will influence their specialty choice. 
Eighty-six percent say cost and availability of insurance will 
determine where in the country they practice. With doctors leaving 
practice and no more entering the field, patients are suffering and 
will suffer more in the future.
  Patients are what this debate is all about--not doctors or lawyers. 
Patients can't find access to care when they need it. For example, 
Nevada's only level I trauma center closed for 10 days in 2002. The 
center serves trauma victims over 10,000 square miles--in Nevada, parts 
of California, Utah, and Arizona. In 2002, this trauma center cared for 
11,600 patients. Mainly, these patients suffer the most traumatic 
injuries such as severe car accidents, knife and gunshot wounds, and 
brain and spinal cord trauma.
  This closure cost Jim Lawson his life on July 4, 2002. We have a 
picture of Jim. Jim lived in Las Vegas, and was just 1 month shy of his 
60th birthday. He had recently returned from visiting his daughter in 
California. When he returned, he was injured in a severe car accident. 
Jim should have been taken to the university medical center's level I 
trauma center, but it was closed. Instead, Jim was taken to another 
emergency room to be stabilized and transferred to Salt Lake City's 
trauma center. Tragically, Jim never made it that far. He died that day 
due to cardiac arrest caused by blunt force from physical trauma.
  Why was Nevada's only level I trauma center closed? Simple fact: 
There were not enough doctors available to provide care. There were not 
enough doctors because of skyrocketing medical liability premiums.
  How do we know it was because of that reason? It is very simple. It 
reopened a week later when the State put the level I trauma center 
under its umbrella coverage where the maximum the State could be sued 
for is $50,000. The legislation we have before us caps non-economic 
damages at much more--$250,000--but allows recovery of economic damages 
to be unlimited. Remember, economic damages are for lost wages, medical 
bills, etc.
  We have cases in California, where a law is in place that is almost 
identical to the legislation we are talking about today, where patients 
have been awarded millions of dollars in compensation. It is the out-
of-control jury awards across the country that are dramatically raising 
our premiums.
  I want to emphasize again, the level one trauma center in Las Vegas 
was reopened because the State of Nevada took it under its wing and 
said: We will protect any of the doctors who work there with a maximum 
liability coverage of $50,000 in damages.
  Opponents on the other side argue that injured patients won't get 
what

[[Page S3879]]

they need financially if malpractice occurs as determined by a jury. 
Let's remember that patients can recover damages in three different 
ways under our bill, and in only one case, non-economic damages, are we 
placing a distinct limit. Economic damages would be unlimited and 
punitive damages are available in the cases of gross malpractice. This 
bill would create strong medical liability reform where patients can 
actually get the kind of compensation they need and they can get it 
sooner because they can navigate through the courts much faster. 
Undoubtedly, the courts will work a lot more quickly because there 
won't be so many frivolous cases clogging up the civil justice system.
  The cases we hear about, whether it is in the trauma centers or 
because there are no OB/GYNs available, are tragic. It is the patients 
who are being hurt every day. The other side says they are trying to 
stand up for the little guy--the little guy who gets hurt because of 
medical malpractice. And we definitely should stand up for those people 
because there are some very tragic cases.
  Without a doubt they deserve just compensation. Unfortunately, our 
system has swung out of balance. It is too easy to sue these days 
because the threat of a lawsuit and the cost of that lawsuit is so 
exorbitant that medical providers and their insurance companies often 
settle out of court. It is an absolute fact that providers and their 
insurers settle even in those cases they probably could win just 
because of the enormous expense and time.
  Adding to this broken cycle are these so-called ``professional 
witnesses,'' for lack of a better term. When I say professional 
witnesses, I mean physicians who no longer are practicing. Some have 
practiced a little bit, but they all of a sudden become experts in 
fields they never practiced in. Our legislation says if someone is 
testifying as an expert, they need to be an expert in the field they 
are testifying about. In other words, you don't want somebody who is a 
family doctor testifying in the case that involves a pediatric 
neurosurgeon. You want somebody who is a specialist in pediatric 
neurosurgery and knows about the ins and outs of that specific practice 
of medicine.
  Again, this legislation would allow those people who actually have 
had medical malpractice inflicted upon them to get through the court 
system faster, so maybe the ones who are truly hurt will get the 
compensation before they die. For many today, because the courts are so 
clogged up, it takes 6 to 10 years to get through the court system, and 
many of them die before they ever get compensation. Talk about a 
tragedy. So if people really want to stand up for the little guy and 
they want to say I want to fight for the little guy--if they want to 
fight for the person who actually gets hurt, let's pass legislation 
that allows the cases to get through the courts in a much more 
expeditious fashion.
  Another benefit of this bill is most, if not all, of the reforms it 
contains will help lower the cost of health insurance in this country 
for everybody, so hopefully we will have more people with health 
insurance. If the costs are lower, more people can afford it, and we 
will have fewer uninsured in this country.
  How many more doctors do we have to lose in Nevada and other States? 
Do we really want people who are not as qualified to go into some of 
these specialties? Do we want to start scraping the bottom of the 
barrel, or do we want the best and the brightest to go into these 
specialty fields? They always have in the past. Now they look out there 
and say, you know what, I am not going to be able to afford to 
practice. Why would the best and the brightest go into it when they 
say, I am going to go to 4 years undergraduate, 4 years medical school, 
and then I am going to do anywhere from 3 to 8 years, depending on the 
postgraduate training that is required in the specialty field, before I 
start making decent money. What people don't realize is even after 
these students graduate from medical school, they might make $30,000 to 
$40,000 doing ``slave labor,'' working 100 hours a week, while they are 
learning their particular field of study.
  We want the best people who are willing to sacrifice all of those 
years and all of those hours of hard work to be able to go into those 
fields. At the end, yes, they should be rewarded economically, just as 
anyone who works hard toward entering a specific field of work. But 
many of them will not do it for the simple fact they are not going to 
be able to afford the medical liability premiums. That is why it is so 
critical we pass medical liability reform.
  Today, we have before us a bill we have limited to provide relief to 
two specialties. It only covers OB/GYNs and professionals involved in 
the practice of emergency medicine and/or trauma medicine. We have 
limited it to highlight two of the most high-risk and the most severely 
affected areas in our health care system today.
  If you don't like portions of the bill and want to change it, fine. 
Let's have a healthy debate and amend the bill. Let's take amendments 
one at a time and amend the bill and then come out with a product that 
will actually fix the problems we have in this country. Right now the 
other side, the Democratic side of the aisle--it almost boggles my mind 
some of the points they argue against this bill--but they won't even 
let us have the bill brought to the floor where it can be amended. They 
won't let us have a fair debate where we can amend this bill. Sadly, 
they are obstructionists on so many pieces of legislation this year. 
But at least on the other pieces of legislation that they are 
obstructing they are not costing lives. On this legislation, they are 
costing lives. Unfortunately, more and more lives will be lost in the 
future. When there are not enough doctors to treat patients, it costs 
lives.
  The providers covered in this bill--OBGYNs, ER and trauma doctors--if 
they are not available to care for patients, people are going to die. 
People are going to end up in a situation like Jim Lawson's who, as we 
showed earlier, needed the kind of specialty care only a trauma center 
can provide. Right now, the doctors are not there to be able to give 
the patients the kind of care they need. We have to ask ourselves, what 
if it were one of our loved ones--not ourselves, but one of our loved 
ones? For instance, down in Florida, Dr. Frank Schwerin's son was 
injured. He is an internist. His son is a 4-year-old named Craig. Craig 
struck his head on the side of a swimming pool. Within minutes, he 
became lethargic and began to vomit. He was rushed to North Collier 
emergency room. The ER physician paged the neurosurgeon on call. 
Unfortunately, neurosurgeons in Collier County were not able to treat 
pediatric patients because they were too high risk. The nearest 
pediatric neurosurgeon was 150 miles away. In neurological trauma, 
every minute counts. After an hour or so of receiving what care he 
could, Craig was eventually stabilized. But not every child is that 
lucky. No parent should have to go through that wondering, does my 
child have the best care they can get, simply because the specialist 
left their area because the medical liability premiums were too 
expensive. I cannot tell you how many doctors who are in this 
situation. By the way, it is not only doctors. We are also talking 
nurse-midwives, EMTs, emergency and fire personnel, you name it. 
Throughout the health care provider system, people are affected by the 
out-of-control medical liability costs. But the physicians I have 
talked to, anecdotally, in story after story, say people were sued for 
the first time in their life in a case they may have had very little to 
do with. They walked in, gave only a consultation to another physician 
who was the primary doctor on the case, and then they are sued because 
malpractice was committed somewhere down the line by someone else on 
the case. Even though it had nothing to do with them, they now have to 
spend literally thousands of dollars defending themselves.
  The system is broken. It is out of control. Our system of justice 
swings like a pendulum. Right now, it has swung too far in one way--in 
the trial lawyer's favor. We have to bring it back in favor of the 
patients. The patients need to come first. That is what we are talking 
about today in this legislation--putting patients first instead of 
trial lawyers.
  Mr. President, I will conclude with this. I want to talk about the 
States that have enacted reforms versus the States that have not. I 
wish to give a couple of examples to put this in dollar terms so people 
can get their arms around it.

[[Page S3880]]

  This chart explains it very clearly. First of all, this is an example 
of internal medicine, general surgery, and OB/GYN. I will focus on the 
OB/GYNs to keep it simple because they are affected directly by this 
legislation.
  L.A., Denver, New York, Las Vegas, Chicago, and Miami are listed on 
this chart. The population shares are relatively similar. This shows 
the medical liability premiums in the various cities. This is a 2002 
survey. Mind you, the cities with the problems are in much worse shape 
in 2004 than they were in 2002.
  An OB/GYN pays about $55,000 a year in L.A., and around $31,000 a 
year in Denver. California and Colorado are two States that have had 
good medical liability reforms passed at the State level, and these 
reforms have been in place for several years. If we go to New York, Las 
Vegas, Chicago, or Miami--take your pick--none of these States have 
good medical liability reform passed. In New York, they are paying 
$90,000; $108,000 in Las Vegas. That number is way low. At a minimum it 
is $140,000. Chicago, $102,000, and Miami is over $200,000 a year. That 
is why doctors are leaving their practices.
  One can say doctors make so much money that they can afford this. The 
average OB/GYN in Las Vegas makes around $200,000 a year. When $108,000 
is going for medical liability coverage, you can see there is not very 
much left for the provider. You raise this up to $140,000, $150,000, 
$160,000, as many are now experiencing in my state, and there is not a 
lot of room left. I would also mention that with the way these doctors 
are getting paid at fixed rates, through managed care, Medicaid, and 
the like, there is not a lot of room left to afford rising premium 
rates. The fact is they are leaving the practice or they are limiting 
the amount of babies they deliver simply because they cannot afford to 
deliver babies. In the fastest growing cities and metro areas, that is 
unacceptable.
  This chart shows California versus U.S. premiums from 1976 to 2000. 
California has the model legislation we all look at. These are the 
premiums. This is California, the blue line, which is very stable. 
There has been an increase of about 167 percent over that time, a 
little more than inflation, but pretty close. Look at it for the rest 
of the country: 505 percent.
  Is medical liability reform working in California? I think the answer 
is pretty obvious that it is. We need a national solution. We need to 
say to the trial lawyers: Listen, we respect the fact you went to law 
school and you want to make a lot of money, but I think the system has 
been abused enough. It is time to put the patients first.
  Let's vote for cloture today. Let's get the 60 votes needed to at 
least go to debate on the bill. And if my colleagues do not like the 
provisions of the bill, let's amend it. Let's have up-or-down votes on 
amendments. Let's get to final passage where we can actually correct 
what is wrong with the health care system in the United States by 
eliminating abusive lawsuits, outrageous and unwarranted jury awards, 
and out-of-control medical liability premiums.
  I yield the floor and reserve the remainder of our time.

                          ____________________