[Congressional Record Volume 151, Number 18 (Thursday, February 17, 2005)]
[Senate]
[Pages S1603-S1605]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                               HEALTH ACT

  Mr. ENSIGN. Mr. President, last week, I reintroduced the HEALTH Act 
to address the national crisis our doctors, hospitals and those needing 
healthcare face today.
  Every day, patients in Nevada and across America are losing access to 
healthcare services. Several states are losing medical professionals at 
an alarming rate, leaving thousands of patients without a healthcare 
provider to serve their needs.
  Because of increasing medical liability insurance premiums, it is now 
common for obstetricians to no longer deliver babies, and for other 
specialists to no longer provide emergency calls or perform certain 
high-risk procedures.
  Women's health in Nevada and elsewhere in the country is in serious 
jeopardy as new doctors turn away from specialties and as practicing 
doctors close their doors.
  I have been told that one in seven fellows of the American Academy of 
Obstetricians and Gynecologists have stopped practicing obstetrics 
because of the high risk of liability claims.
  When Ms. Jill Forte of Las Vegas, found out that she was pregnant 
with her second child, she called her doctor. The doctor told her that 
because of insurance costs, she could no longer deliver her baby. So 
Jill started calling around. She was told the same thing by five 
different doctors. She even considered going to California for care.
  Fortunately, Ms. Forte was able to make a connection through a friend 
for a local doctor to take her case. She said:

       I was in total shock. I didn't know what was going on until 
     it happened. Looking for a doctor, worried about finding a 
     doctor when you're pregnant is a stress that is an 
     unnecessary stress. It's a stress caused by

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     frivolous and junk lawsuits. It doesn't make any sense to 
     have a society that sues so often that expectant mothers are 
     worried about finding a doctor.

  Unfortunately, her story is becoming too commonplace.
  Additionally, hundreds of emergency departments have closed in recent 
years. Emergency departments have shut down in Arizona, Florida, 
Mississippi, Pennsylvania, and Nevada, among others. During this same 
time, the number of visits to the Nation's emergency departments 
climbed more than 20 percent. While more Americans are seeking 
emergency medical care, emergency departments are losing critical staff 
and essential resources.
  In my home State of Nevada, our only Level I trauma care center 
closed for 10 days in 2002, leaving every patient within 10,000 square 
miles unserved by a trauma unit. In fact, Ms. Mary Rasor's father died 
in Las Vegas last year when he could not obtain access to emergency 
trauma care because of the closure.
  Doctors are also limiting their scope of services. More than 35 
percent of neurosurgeons have altered their emergency or trauma call 
coverage because of the medical liability crisis. As a result, many 
hospitals, including Level II trauma centers, no longer have 
neurosurgical coverage 24 hours a day, 7 days a week. Consequently, 
patients with head injuries or in need of neurosurgical services must 
be transferred to other facilities, delaying much-needed care.
  An example of this problem was recently brought to my attention by 
Dr. Tony Alamo of Henderson, Nevada. During his tenure as chief of 
staff at Sunrise Hospital, Dr. Alamo was presented with a teenager 
suffering from a Myasthenia Gravis crisis in need of immediate medical 
treatment. This condition involves shortness of breath due to muscle 
weakness. Such shortness of breath can become severe enough to require 
hospitalization for breathing support, as well as treatment for the 
underlying infection. If the problem is not identified and treated 
correctly, it could lead to death.
  Dr. Alamo told me that because of the medical liability situation, 
there was no emergency room neurologist on call to assist this young 
woman. Many neurologists are afraid to become involved in difficult 
cases like this because of the high risks of medical liability. 
Consequently, Dr. Alamo had the young woman transported to California 
by helicopter to receive the care she needed. Because of the reasonable 
laws in California, neurologists aren't afraid to take call.
  The bottom line is that patients cannot get the healthcare they need 
when they need it most. By definition, this is a medical crisis. The 
crisis boils down to two factors: affordability and availability of 
medical liability insurance for providers.
  With regard to affordability, the Medical Liability Monitor found 
that in 2004, obstetricians in Dade County, FL, were paying as much as 
$277,241 in annual medical liability insurance premiums. Similarly, in 
Illinois, some obstetricians were paying more than $230,000 a year. In 
my home state of Nevada, some OB/GYNs were paying approximately 
$133,904 for medical liability insurance, an increase of 15 percent 
from 2003.
  Faced with increasing medical liability insurance premiums, some 
physicians are no longer accepting discounted rates for the services 
they provide. A legislative assistant in my office recently received a 
letter from her OB/GYN, which I would like to submit for the 
Congressional Record. The letter indicates that her physician's medical 
liability insurance premium for 2005 increased by over 50 percent to 
more than $250,000. Instead of closing the practice or choosing to stop 
delivering babies, the physician has decided to no longer accept 
discounted insurance reimbursements.
  I ask unanimous consent that the letter be printed in the Record at 
the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered. (See 
exhibit 1.)
  Mr. ENSIGN. We cannot afford to bury our heads in the sand and avoid 
this issue. Medical liability insurance premiums are affecting real 
people in need of timely and efficient healthcare services.
  On the issue of availability, thousands of doctors nationwide have 
been left with no liability insurance as major insurers are either 
leaving the market or raising rates to astronomical levels. Why are 
insurers raising rates and leaving the market? Because there is no 
stability in the marketplace for providing medical liability insurance. 
Why is there no stability in the marketplace? Because our healthcare 
system is being overrun by frivolous lawsuits and outrageous jury 
awards.
  This excessive litigation is leading to higher healthcare costs for 
every American and provides little piece of mind for our healthcare 
providers. Even medical students are affected by the current crisis. 
According to a recent American Medical Association survey, the current 
medical liability environment is a significant factor for students 
selecting a specialty.
  And, because the litigation system does not accurately judge whether 
an error was committed in the course of medical care, physicians are 
adjusting their behavior to avoid being sued. Many physicians are using 
defensive medicine practices to avoid lawsuits. They are providing 
patients with tests and treatments that they would not otherwise 
perform to protect themselves against the risk of possible litigation.
  Every unnecessary test and additional treatment poses a risk to the 
patient, and takes away funds that could be used to provide healthcare 
to those who need it most. A 2002 study by the Department of Health and 
Human Services found that defensive medicine is costing the Federal 
Government an estimated $28 billion to $47 billion per year in 
unnecessary health care costs.
  In addition to the Federal Government, who else is paying for these 
unnecessary costs? Every American with health insurance is paying for 
these unnecessary expenses in the form of higher out-of-pocket payments 
and premiums.
  Too often, medical costs are so great that employers have to stop 
offering health insurance coverage altogether, therefore increasing the 
number of uninsured in America. And who is paying for the uninsured to 
obtain health care services? We all are. And the cycle goes on and on. 
This cycle has to be stopped and we can do that by passing national 
medical liability reform right now.
  Comprehensive medical liability reform is essential on a national 
level because the existing medical crisis is not confined within State 
lines and because every American should have access to affordable high 
quality healthcare. Likewise, every responsible member of the 
healthcare community should not be afraid to provide high quality care 
because of the fear of litigation.
  In order to achieve these critical reforms, I am reintroducing the 
HEALTH Act. This legislation includes several reform provisions, 
including a $250,000 cap on noneconomic damages, joint liability and 
collateral source improvements, and limits on attorney fees according 
to a sliding award scale.
  In addition, my legislation includes an expert witness provision to 
ensure that relevant medical experts serve as trial witnesses instead 
of so-called ``professional witnesses'' who are used to further abuse 
the system.
  This legislation is modeled after California's successful Medical 
Injury Compensation Reform Act, also known as MICRA. MICRA has brought 
about real reform to California's liability system. The number of 
dubious and frivolous lawsuits going to trial has declined 
dramatically.
  Injured patients receive a larger share of their awards and 
disciplinary actions against incompetent healthcare providers have 
increased. The bottom line is that California's medical liability 
system works. These types of outcomes should be shared by every state, 
and ultimately every patient in America.
  It is important to recognize that neither MICRA, nor my legislation 
limits the amount of economic damages that an injured patient can 
recover. Like every other profession, mistakes are sometimes made by 
healthcare providers. Patients who suffer from these mistakes should 
have access to unlimited economic compensation and should be able to 
recover losses, such as loss of past and future earnings.
  Injured patients should also have access to punitive damages where 
providers are found to be grossly negligent. But, there is no way to 
quantify

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a patient's ``pain and suffering,'' and most often, no dollar amount is 
ever enough. Therefore, placing a reasonable limit on these non-
economic damages helps bring accountability back to our civil justice 
system by weeding out frivolous lawsuits. This would allow physicians 
to concentrate fully on providing superior health care services, and 
help curb the skyrocketing costs of healthcare for patients.
  Every step Congress can take to help increase patient safety and 
maintain access to quality health care services should be taken, and we 
are on track to do that this year.
  Medical liability reform is not a Republican or Democrat issue or 
even a doctor verses lawyer issue. It is a patient issue. With the 
medical crisis occurring in Florida, Illinois, Pennsylvania, Nevada, 
and many more states around the Nation, our opportunity to enact true 
reform is here. Comprehensive medical liability reform is the right 
prescription and the time for action is now.
  Let's make sure that expectant mothers have access to ob-gyns and 
that trauma care victims have access to necessary services in their 
most critical hour of need. And, let's make sure we continue to provide 
patients in America with the opportunity to receive affordable, 
accessible, and high quality healthcare for years to come.

                               Exhibit 1


                                      Women OB/GYN Physicians,

                                 Washington, DC, December 1, 2004.
       To Our Patients: We have all been reading and talking about 
     the crisis in our health care system. As your doctors, our 
     most important commitment and mission is to provide you with 
     the highest quality medical care. We are writing to tell you 
     how the current situation is affecting our ability to 
     practice medicine at the level you deserve and expect.
       Doctors in our area are being squeezed between decreased 
     reimbursement from insurance carriers and steeply rising 
     malpractice premiums. We were just notified that our 
     malpractice premium for next year was increased by over 50 
     percent to more than $275,000.
       Faced with this increase we had to consider some difficult 
     choices. We could close our practice. We could stop 
     delivering babies--something we both love and at which we 
     excel. We could markedly increase the number of patients we 
     see each day and reduce the time we spend with each patient. 
     This would mean insufficient time for discussion, education 
     and thoughtful consideration of your individual needs. We 
     rejected all of these options. Instead we chose to stop 
     accepting extremely discounted rates for the services that we 
     provide.
       Effective March 1, 2005 we will no longer participate with 
     CareFirst BlueCross BlueShield. Therefore, we will not accept 
     any discounted insurance reimbursements. Of course, We hope 
     to continue to see our Blue Cross Blue Shield patients, but 
     payment is expected at the time of service. We will then 
     prepare a claim form that you can submit to your insurance 
     carrier to streamline your reimbursement. As a courtesy, we 
     will continue to submit claims for deliveries and surgeries 
     to the insurance carriers on your behalf.
       We are committed to provide state-of-the-art women's health 
     services in a caring, efficient, and professional manner. We 
     look forward to our continued relationship. If there is any 
     way we can help you with this transition, please let us know.
       Sincerely,
     Nancy Sanders, MD.
     Janet Schaffel, MD.

                          ____________________