[Congressional Record Volume 150, Number 108 (Monday, September 13, 2004)]
[Senate]
[Pages S9099-S9102]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        MEDICAL LIABILITY REFORM

  Mr. CORNYN. Mr. President, it was 1 year ago today that the voters in 
my home State of Texas passed proposition 12, a referendum that paves 
the way for substantive medical liability reform and provides hope that 
quality health care will win out over the interests of a handful of 
politically powerful personal injury lawyers.
  The people of Texas spoke, and the doctors across the State are 
reopening their doors. In fact, two obstetricians in the small town of 
Fredericksburg, TX, announced their return with an advertisement in the 
local newspaper that proclaimed: ``We're Back!''
  One of these obstetricians, Dr. David Cantu, had been working for 
more than 10 years as an obstetrician with no claims, but he and his 
partner had to quit practicing obstetrics because of the cost of 
insurance. Dr. Cantu's overhead was hitting 100 percent, and he had a 
3-month stretch with no pay.
  As soon as they stopped delivering babies, the practice saw an 
immediate decrease in insurance costs, but their patients were forced 
to travel elsewhere to have their babies delivered. This was doubly 
difficult for them considering the fact that 70 percent of Dr. Cantu's 
patients are Medicaid patients, and 40 percent were Spanish speaking.
  But with proposition 12, Dr. Cantu and his partner are now able to 
deliver babies again. Proposition 12 has placed a $250,000 cap on 
noneconomic damages in medical liability cases. When Dr. Cantu was 
asked, How has that helped you and your patients, he said:

       Because now I come out ahead instead of paying to be an 
     Obstetrician. Prop. 12 made the practice of Obstetrics 
     affordable.


[[Page S9100]]


  When it comes to health care, I strongly believe the proper role of 
Government is to protect the freedom of all of us to improve our own 
health and to deal with our own health care needs. We must ensure that 
decisions about a patient's health are not made by the Government but 
by individuals and families; that is, between the patient and his or 
her doctor.
  Patients and their doctors--not lawyers, not bureaucrats--should be 
trusted to decide what treatment is best for them. I strongly believe 
when people have good choices in health care, it ultimately translates 
into higher quality and better care.
  Dr. Cantu's story shows us that our current medical liability system 
is the biggest challenge we face in this regard. Our current system is 
wasteful and dangerous, and it too often serves the interests of greed, 
not justice and common sense. The overall results of our current system 
are sky-high costs for liability insurance, costs that have created a 
crisis of enormous proportions--a crisis that is threatening quality of 
care, diminishing access to care, and exploding the cost of care.
  But there is hope. Evidence is mounting that reforms such as 
proposition 12 in the State of Texas are working. We can see that in 
real terms and not just because of advertisements of doors to doctors' 
offices reopening. Even though these reforms have been in place for 
only 1 year in Texas, early results are encouraging.
  After a decrease in Texas insurance carriers from 17 to 4--that is 
the number of medical liability insurance companies that would actually 
insure a physician or a health care provider against medical liability 
claims--proposition 12 has created an environment where 10 different 
carriers have now sought reentry into the Texas market to write 
physician policies. The largest insurer in the State, Texas Medical 
Liability Trust, reduced its premiums by 12 percent. A Texas hospital 
association survey shows, for hospitals in our State, a 17-percent 
reduction across the board.
  Why this response? Lawsuits against hospitals are down 70 percent 
from last summer's race to the courthouse, when Texas courts were 
flooded by personal injury lawyers with more than 10,000 medical 
malpractice lawsuits, shortly before voters approved proposition 12.
  Let me repeat that because it is important for everyone to 
understand. Knowing that proposition 12 was likely to pass, personal 
injury trial lawyers filed more than 10,000 medical liability lawsuits 
shortly before the reform was to take effect in order to beat the 
people's mandate that health care should be more widely available and, 
certainly, medical liability insurance available more readily to more 
physicians. Why? To help doctors, to help hospitals and the 
corporations that own those hospitals?
  Everybody knows that corporations don't practice medicine, and the 
only way you can get your baby treated or yourself treated is to have a 
doctor who will see you. So what we are talking about is not a benefit 
directly to doctors or the hospitals; what we are talking about is a 
benefit to patients--in other words, to all of us--as a result of this 
commonsense reform.
  The best news is that doctors such as David Cantu are responding. In 
Austin, 16 new obstetricians have started their practice in the last 
year, reversing a trend over the previous 2\1/2\ years when Austin lost 
16 obstetricians due to the medical liability crisis. Driscoll 
Children's Hospital is recruiting close to a dozen new pediatric 
specialists, three neonatologists, two cardiologists, a hematologist, a 
general surgeon, and four other specialists, something they could not 
do under the earlier environment.
  These successes are not limited to just the State of Texas. A recent 
study by the Rand Institute found that California's 1975 medical 
liability reform, known as MICRA, reduced defendants' liabilities by 30 
percent and plaintiffs' attorneys fees by 60 percent. That was a means 
to an end because the result in California has been that insurance 
rates have actually risen at a rate of about two-thirds of what the 
rate has been in the rest of the Nation. These are signs that reforms 
such as proposition 12, or California's MICRA, have worked. Yet still 
we find that in the U.S. Senate today, we are unable to get a solution 
for families all across the Nation in States that have no such reforms 
in place. This is a national problem and it calls for a national 
solution.
  I want to say a few words about our Nation's need for serious medical 
liability reform and the U.S. Senate's appalling refusal to address 
that problem with real solutions. Unfortunately, special interests 
continue to win out over mainstream America, and our health care system 
continues to bear the burden of costly and frivolous lawsuits. We see 
that medical care and medical liability insurance rates continue to 
grow unabated.
  I couldn't help but notice this quote from Senator Kerry at the 
Democratic National Convention in his acceptance speech. He noted 
specifically:

       Since 2000, four million people have lost their health 
     insurance. Millions more are struggling to afford it. You 
     know what's happening. Your premiums, your co-payments, your 
     deductibles have all gone through the roof.

  I am actually very pleased to hear this acknowledgment by the Senator 
from Massachusetts, recognizing the seriousness of our situation. He is 
right about one thing: These are real problems, and they deserve real 
and immediate solutions.
  With all due respect, he and some of our colleagues in the Senate 
continue to avoid the most obvious and primary cause of escalating 
health care costs and the decrease in availability of medical liability 
insurance and the consequential lack of access to real health care--
that is, runaway lawsuits.

  Three times in the 108th Congress alone Republican leadership has 
brought meaningful medical liability reform to the Senate which, if 
passed, President Bush would readily sign into law. This chart shows 
three different bills that have been brought to the Senate floor by the 
majority leader: S. 11, the Patients First Act of 2003; S. 2061, the 
Healthy Mothers and Healthy Babies Access to Care Act; and S. 2207, the 
Pregnancy and Trauma Care Access Protection Act.
  Over a year ago, the majority leader brought forth a comprehensive 
reform proposal known as S. 11. Earlier we brought forth two additional 
proposals which dealt more with specialty practices such as 
obstetricians who deliver babies and emergency room physicians, hoping 
that even if we were not able to get broad medical liability reform, we 
might be able to achieve it for those specialties that are most acutely 
affected and where access to health care hits the hardest.
  I do not begin to claim that the legislative proposals we have 
advanced were the only solution to the problems. Indeed, I applaud 
other reforms. But it is clear, as this chart indicates, that each time 
we have tried to come up with a solution, we have been denied an 
opportunity to go forward with the debate and to have amendments, if 
any Senator wished to offer amendments, and to try to get good, 
commonsense medical liability reform that would increase access to 
health care.
  I don't believe medical liability reform is the only problem that 
confronts our health care system today. I applaud many other reforms 
that have been proposed by the President and others, including the 
innovation of health savings accounts, which were part of the Medicare 
bill we passed about a year ago, and the use of new technology to make 
the practice of medicine more efficient and to reduce the likelihood of 
medical errors. These and other reforms do represent commonsense 
proposals that hold great promise, not only for improved health care 
but to make sure the cost of health care remains affordable and thus 
more available to more people.
  Above all, it is clear that any of these bills would offer much-
needed relief to the health care system brought to a state of crisis by 
politically powerful personal injury lawyers in as many as 23 States 
across the country. I find it sad that any special interest group--and 
the Senators voting according to the wishes of those groups and not the 
American people, a list that includes the Democratic nominees for 
President and Vice President--has denied us the opportunity on each of 
these three occasions to begin the debate, begin the legislative 
process, and hopefully accomplish meaningful reform and improve access 
to health care. But we were denied even the chance to debate and vote 
on the issue, even when a bipartisan majority of this body agrees that 
we need reform and we have the

[[Page S9101]]

tools to effect that reform within our reach. Their choice to deny us 
that opportunity was not ours; it was theirs. To this day, those who 
obstruct meaningful medical liability reform leave the American people 
with the sad reality of the status quo, a broken civil justice system 
and little hope for a national solution.
  While the problem persists in all aspects of our health care system, 
the crisis is particularly acute among specialty doctors--for example, 
neurosurgeons, brain and spinal surgeons, emergency room physicians, 
and, notably, obstetricians and gynecologists, the doctors who actually 
care for women who are pregnant and who deliver their babies. A handful 
of powerfully connected personal injury lawyers is seriously 
jeopardizing patient care for women and their newborns. I and others 
find that completely unacceptable.
  Across the country liability insurance for obstetrician/gynecologists 
has become prohibitively expensive. Premiums have tripled and 
quadrupled, leaving OB/GYNs without the ability to get liability 
insurance at all as insurance companies fold or stop insuring doctors.
  This last week, the Washington Post wrote an article on a malpractice 
insurer, known as NCRIC, right here in the District of Columbia, which 
is ``feeling the squeeze,'' losing over $4 million in 2003 alone.
  This chart shows that 23 States are on red alert--in a medical 
liability crisis--while just 3, including Texas, are in crisis pending 
effect of reform. Others noted by the hash marks on the chart are those 
where the crisis is still brewing.
  These skyrocketing medical malpractice premiums literally are driving 
physicians out of business and leaving Americans without access to 
quality health care. Between 2002 and 2003, rates rose as much as 40 
percent in some States, with the impact hitting specialty doctors such 
as obstetricians/gynecologists the hardest.
  When an OB/GYN cannot find or afford medical liability insurance, 
they are forced to stop delivering babies, forced to curtail surgical 
services, or close their doors altogether. Now more than one in seven 
across the Nation is simply leaving the profession and walking away.
  For example, in my home State of Texas, the entire obstetrics unit at 
Spring Branch Medical Center in Houston was forced to close just prior 
to an expected 2003 increase of 67 percent in the hospital's medical 
liability premiums.
  Today, because the effects of proposition 12 have not been fully 
realized, out of 254 counties in Texas--one of the States in crisis 
pending effect of the reforms--more than half of the counties in Texas 
simply do not have available a single doctor who specializes in 
delivering babies. In many cases, doctors simply chose to stop serving 
certain patients to avoid costly litigation; or even if they were not 
involved in litigation, they were still forced to pay ultra-high 
medical liability premiums, making it simply impossible to make ends 
meet.
  One rural obstetrics/gynecologist who serves mostly Medicaid, or poor 
patients, was forced to stop seeing high-risk patients altogether 
because his insurance premiums had increased 300 percent.
  The effects are felt almost entirely by the poorer members of our 
society who depend, of course, on Medicaid to help them with their 
health care premiums.
  Perhaps most disconcerting of all, however, is the trend of doctors 
engaging in defensive medical practice. When we ask why is the cost of 
health care going up so dramatically and why are health care premiums 
paid by employers or by self-employed persons going up so dramatically, 
it is in part because of the effect of defensive medicine--physicians 
who provide tests and services, not because they think it is medically 
indicated but because they simply want to defend themselves against a 
potential lawsuit.
  According to the Department of Health and Human Services, a majority 
of doctors say they recommend invasive procedures and painful tests 
they consider unnecessary in medical terms in hopes of avoiding 
litigation. That is the point we have reached.
  The most basic principles of justice require that we embrace national 
reform as soon as possible, striving to protect access both to the 
courts and to our hospitals and to physicians. As a matter of 
principle, those who are wrongly injured deserve their day in court; 
there is no question about that. We all agree. If a doctor is 
responsible or negligent, he or she should be held fully accountable. 
But the sad fact is that the current system does not foster 
accountability. Instead, it has nearly destroyed any hope for quality 
and affordable health care in America. The time for that to change is 
now and we must change it.
  It is time for Congress to act and to provide a national solution so 
all Americans can benefit from medical liability reform, so all 
Americans can open their newspapers and see an advertisement from their 
neighborhood doctor, who may have once been forced out of his practice 
now happily, proclaiming: We are back.
  I yield the floor.
  The PRESIDENT pro tempore. The majority leader is recognized.
  Mr. FRIST. Mr. President, I wish to make some comments on 
intelligence reform, an issue that is a real focus for the Senate, with 
activities both on the floor as well as off the floor and most of it in 
committee and task forces right now.
  Before doing so, I thank my colleague from Texas, who so carefully 
and deliberately and comprehensively laid out a huge problem that, as 
he said, affects access to health care now. As he described it, 
obstetricians and gynecologists are leaving the practice of delivering 
babies and getting out of taking care of women who need it because they 
simply cannot afford it any longer. Trauma surgeons and centers are 
stopping doing surgery, not because they want to, but they cannot 
afford to and still provide for their family.
  The driver for those OB/GYNs, the trauma centers, neurosurgeons, and 
orthopedic surgeons is the liability system that is out of control. It 
used to be that people would talk about it and it didn't have much 
traction with the American people because they would say those doctors 
make so much money and they can take care of it. But when you have 
neurosurgeons paying $400,000 a year just for liability insurance, you 
simply cannot keep delivering care. If it is $100,000 or $200,000, you 
can pass it on to the patients. But remember, the skyrocketing premiums 
are costing the American people--you, the people listening to me, who 
are having to pay more for health care--because it drives the cost up.
  I very much appreciate him coming to the floor and addressing that 
issue. Health care costs right now are increasing each and every year. 
We all know that and it is our obligation to address that. It is about 
15 percent of our gross domestic product right now. Whether that is too 
much or too little, the point is, it is going up, and one of the big 
drivers of that is the medical liability cost.
  Americans deserve affordable health care, reliable health care, 
accessible health care, and good quality health care. We are getting to 
a point where we simply cannot afford it; thus, as we look to the 
future, and whether it is in individual Senate races or the 
Presidential race, I encourage the American people to ask these 
questions: Who is addressing the root causes of these escalating costs 
in health care? Is it Democrats or Republicans? Is it the nominee or 
the incumbent? Is it President Bush or nominee Kerry? Who is addressing 
the root causes of driving these costs sky high and out of everybody's 
control, when ultimately the American taxpayer pays it, and your 
premium is going to go up, whether or not you are involved in a 
lawsuit, because that cost is passed on to you.
  As my colleague pointed out on the floor, on three occasions, we have 
addressed the root cause--these frivolous lawsuits, the personal injury 
lawyers, who are putting money in their pockets instead of the pockets 
of the victims who may have been hurt; or the predatory personal injury 
lawyers--not all of them but the ones filing frivolous lawsuits, in 
order to hit that litigation lottery and line their pocketbooks. We 
have tried to do this three times unsuccessfully basically because of 
the Democrats--not all because one voted with us. They said they were 
not going to discuss it on the floor of the Senate. So I think it is an 
issue that we must

[[Page S9102]]

address, and I appreciate our distinguished colleague bringing it to 
the floor. It is an important issue that we have to address on this 
floor and I think will play out in races across the country. Who is for 
reasonable, commonsense medical liability reform which allows 
obstetricians to keep delivering babies, trauma centers to stay open, 
and allows doctors to do what they want to do, and that is to practice 
medicine and take care of patients, instead of driving them away. It is 
as simple as that.

  We are going to try to get it before the Senate, probably not in the 
next 18 days we have left in our legislative session, but we will bring 
it back again and again until we are successful.
  I should mention as an aside as well, in the Presidential race, it is 
important, as we look at who is addressing the root causes in terms of 
a vision for health care, we do need to take a look at the health care 
plans.
  The American Enterprise Institute released today a very good paper--I 
am sure there will be other papers--that looked at the Kerry health 
care plan and said it is going to cost $1.5 trillion. That is twice 
what the Kerry campaign has said.
  Mr. President, $1.5 trillion is huge. The only way it can be paid 
for, obviously, is by increasing taxes on everybody--everybody. I 
encourage people to look at that document.

                          ____________________