[Congressional Record Volume 151, Number 104 (Wednesday, July 27, 2005)]
[House]
[Pages H6860-H6869]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




PROVIDING FOR CONSIDERATION OF H.R. 5, HELP EFFICIENT, ACCESSIBLE, LOW-
              COST, TIMELY HEALTHCARE (HEALTH) ACT OF 2005

  Mr. GINGREY. Mr. Speaker, by direction of the Committee on Rules, I 
call up House Resolution 385 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 385

       Resolved, That upon the adoption of this resolution it 
     shall be in order without intervention of any point of order 
     to consider in the House the bill (H.R. 5) to improve patient 
     access to health care services and provide improved medical 
     care by reducing the excessive burden the liability system 
     places on the health care delivery system. The bill shall be 
     considered as read. The previous question shall be considered 
     as ordered on the bill to final passage without intervening 
     motion except: (1) two hours of debate on the bill equally 
     divided and controlled by the Majority Leader and the 
     Minority Leader or their designees; and (2) one motion to 
     recommit.
       Sec. 2. During consideration of H.R. 5 pursuant to this 
     resolution, notwithstanding the operation of the previous 
     question, the Chair may postpone further consideration of the 
     bill to a time designated by the Speaker.

  The SPEAKER pro tempore. The gentleman from Georgia (Mr. Gingrey) is 
recognized for 1 hour.
  Mr. GINGREY. Mr. Speaker, for the purpose of debate only, I yield the 
customary 30 minutes to the gentleman from Florida (Mr. Hastings), 
pending which I yield myself such time as I may consume. During 
consideration of this resolution, all time yielded is for the purpose 
of debate only.
  Mr. Speaker, House Resolution 385 is a closed rule that provides 2 
hours of debate in the House, equally divided and controlled by the 
majority leader and the minority leader or their designees. It waives 
all points of order against consideration of the bill, provides that 
notwithstanding the operation of the previous question, the Chair may 
postpone further consideration of the bill to a time designated by the 
Speaker, and it provides one motion to recommit.
  Mr. Speaker, I rise today as the proud sponsor of H.R. 5, the Help 
Efficient, Accessible, Low Cost, Timely Health Care Act of 2005, or the 
Health Act, and to speak on behalf of both the rule and the underlying 
bill.
  First, I would like to thank both the gentleman from Wisconsin (Mr. 
Sensenbrenner), the chairman of the Judiciary Committee, and the 
gentleman from Texas (Mr. Barton), the chairman of the Energy and 
Commerce Committee, for their work on this issue, as this is not the 
first time the House of Representatives has considered this measure.
  Mr. Speaker, H.R. 5 is a good bill that has passed this House in the 
108th Congress with bipartisan support. Therefore this bill and its 
substance have been thoroughly debated both on this floor and in 
committee in the previous two Congresses.
  As the sponsor of H.R. 5, I am very excited about the opportunity 
that we have today to strengthen our health care system for the sake of 
every household's health and every household's pocketbook.
  Mr. Speaker, H.R. 5 is without question one of the best opportunities 
this Congress has to address the health care crisis we face today. 
There is no doubt among the American people, and there should be no 
doubt among Members of this Congress, that we need fundamental reforms 
to strengthen access to health care and to control the burgeoning cost 
of health care.
  Having practiced for almost 30 years as an OB/GYN physician, I have 
not forgotten the experiences and the lessons that I learned on the 
front lines of medicine. I came to this Congress not only with a 
background in health care, but also with an important charge to do all 
that I could to make our health care system better.
  And, Mr. Speaker, I can tell you in no uncertain terms, we have a 
problem. We are losing too many good doctors because of the 
skyrocketing costs of medical liability insurance and the threat of 
frivolous lawsuits.
  These costs have been driven up by frivolous lawsuits and runaway 
awards that are more about someone's ship coming in, and I do not mean 
the injured plaintiffs, than the provision of justice for those who are 
injured.
  In fact, the Department of Health and Human Services reports: ``The 
litigation system is threatening health care quality for all Americans 
as well as raising the cost of health care for all Americans.''
  While I am no economist, it does not take a financial expert to know 
that with fewer and fewer practicing doctors and an ever-growing number 
of patients, the price of health care will inevitably go up and 
skyrocket out of the reach of the average consumer.
  These increasing costs not only create a significant burden on the 
American people, but also increasingly aggravate the current strain on 
the Federal budget resulting in bigger and bigger deficits.
  Therefore, Mr. Speaker, I, along with the gentleman from Texas (Mr. 
Smith), introduced H.R. 5 as a simple, straightforward solution to 
reform and strengthen our civil justice system as it pertains to 
medical liability.
  Mr. Speaker, I am thankful for the other 55 Members who have joined 
with us to cosponsor this bill. Mr. Speaker, the HEALTH Act will not, 
let me repeat, it will not limit economic awards such as medical bills 
and lost wages.
  So if, as an example, a plaintiff has $10 million in economic 
damages, they can still collect $10 million for their economic damages. 
Again, there is no limit to the economic awards. H.R. 5 would, however, 
limit noneconomic awards to $250,000.
  Additionally, punitive damages, if assessed, would be limited to 
$250,000 or twice the amount of economic loss suffered, whichever of 
the two is greater.
  And, again, Mr. Speaker, as an example, if the economic damages were 
$5 million, and there were cause to impose punitive damages because of 
someone's deliberate action, deliberately harmed a patient, then the 
punitive damages could be $10 million in addition to the $5 million in 
economic, while the noneconomic would still be limited to $250,000.
  The HEALTH Act will also make liability more equitable. If one or 
more parties is a defendant and ordered to pay damages, then each party 
pays damages proportional to their fault in the case as determined by 
the trier of fact, the jury.
  Mr. Speaker, no one should have to take the blame and pay damages for 
the negligence of another defendant, as under current law. That is not 
justice and this bill will make sure that this inequity is eliminated.
  Now, I realize that there are some who have tried to cloud the issue 
here, and they will certainly oppose this bill. And while I am not 
questioning anybody's motives, I have to insist that each and everyone 
of us ask ourselves, Where do my loyalties lie? Do they lie with the 
American people and their best interests, or do they lie with those 
special interest trial lawyers?
  Some, some, seek to game our judicial system for big bucks, of which 
their clients, the actual victims, see very little.

                              {time}  1715

  For this reason, H.R. 5 includes a provision that will limit the 
contingency fees of lawyers and health care lawsuits on a sliding-scale 
basis. This provision will ensure that victims actually receive fair 
compensation for their damages and they are not bilked and taken 
advantage by certain greedy trial lawyers.
  I cannot stress enough the importance of this bill, Mr. Speaker. Too 
many of our States are now in a condition of medical liability crisis. 
My home State of Georgia is one of those States in crisis. And while 
our legislature, along with Governor Sonny Perdue, has passed 
meaningful medical liability reform in this past session, there is 
still much work to be done to undo the damage inflicted on Georgia's 
health care system. Specifically, according to the Alliance of 
Specialty Medicine, over the past 3 years, 15 of Georgia's 20 active 
insurance companies have stopped issuing medical malpractice policies 
for doctors. This fact flies in the face of the argument from the other 
side that suggests that greedy insurers are just overcharging doctors 
for their insurance coverage.

[[Page H6861]]

And without this insurance coverage, doctors from emergency medical 
specialists, neurosurgeons, OB-GYN physicians, they are being chased 
out of their profession and leaving ordinary people without their 
specialty doctor and without efficient and timely health care.
  Mr. Speaker, H.R. 5 is not the silver bullet to America's health care 
problems. However, in conjunction with things like associated health 
plans, which we just passed again, the Medicare Part D prescription 
drug benefit which will go into effect January 1 of 2006, and other 
important initiatives developed by the majority in this Congress, this 
bill is the right prescription for the American people at the right 
time and will put us well on the road toward recovery.
  I would like to encourage my colleagues to give their full 
consideration to H.R. 5. This Congress has an important opportunity to 
pass this meaningful health care reform.
  Mr. Speaker, the American people deserve no less from us. Again, I 
would encourage my colleagues on both sides of the aisle to support the 
rule and the underlying bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield for the purpose of 
making a unanimous consent request to the gentleman from Virginia (Mr. 
Moran).
  (Mr. MORAN of Virginia asked and was given permission to revise and 
extend his remarks.)
  Mr. MORAN of Virginia. Mr. Speaker, I rise in opposition to this 
rule.
  Mr. Speaker, I rise in opposition to H.R. 5, which purports to help 
stem rising medical malpractice insurance premiums and relieve health 
care professionals, but, in reality, will have very little effect.
  What this body should be considering today is comprehensive medical 
malpractice reform and this measure does not even come close to 
achieving this important goal.
  Last night, the Rules Committee did not make in order several 
amendments, which taken together, would have achieved true 
comprehensive medical malpractice reform.
  Earlier this year, I, along with Brian Baird, Dutch Ruppersberger and 
Dan Lipinski, introduced the Comprehensive Medical Malpractice Reform 
Act of 2005, which would have achieved three key goals, namely (1) 
constrain the cost of medical liability insurance and reduce 
unwarranted litigation; (2) protect the rights of patients who have 
been harmed to receive proper and justified compensation; and (3) 
improve overall the quality of health care in our country.
  Unfortunately, we, along with several other Members, were denied the 
opportunity to improve H.R. 5 with these amendments.
  One of our amendments that was denied debate would have set 
reasonable limits on non-economic damages.
  We all know that a cap of $250,000 on non-economic damages is too low 
since some valid cases with catastrophic or lifetime injuries may merit 
additional compensation, particularly in the case of the negligent 
death of an infant.
  Our amendment would have set a cap on awards for pain and suffering 
that is based on California's enactment into law of the Medical Injury 
Compensation Reform Act in 1975. Many provisions of H.R. 5, including 
caps on non-economic damages, are modeled after this California law.
  Our amendment would have indexed non-economic damages at the rate of 
inflation, which comes to about $877,000 in today's market. Certainly a 
far more reasonable number than $250,000.
  This amendment would also have weeded out frivolous lawsuits by going 
after lawyers who continue to file claims that are not substantiated by 
evidence or expert opinion. Courts would be able to impose a ``3 
Strikes & You're Out'' law and suspend from practice for no less than 
one year, lawyers who file their third frivolous lawsuit.
  Our comprehensive medical malpractice reform package also considers 
alternative dispute resolution, as a means of avoiding litigation, 
while at the same time, still addressing victims' rights. We modeled 
this provision after a successful program at Rush Medical Center in 
Illinois.
  This first-ever hospital based mediation program has proven to be 
very beneficial to the hospital and other health care providers, and 
brings closure for individual plaintiffs and defendants.
  Over the years, the number of suits against Rush has declined and 
other hospitals have conducted mediations and have reported favorable 
results. Our amendment would have given health care institutions the 
training necessary to implement mediation programs.
  Another rejected amendment would have given liability protection to 
those health care providers, who in good faith, report to report to 
state medical boards regarding the competence or professional conduct 
of a physician. These good-faith reporting health care providers would 
not be held responsible for attorney fees and costs incurred as a 
result of legal action.
  According to data from the National Practitioner Data Bank from 1990 
to 2002, just 5 percent of doctors were involved in 54 percent of all 
medical malpractice payouts, including jury awards and settlements. 
More startling, the data shows that of the 35,000 doctors with two or 
more payouts during that period, only 8 percent were disciplined by 
state medical boards.
  Health care providers need better whistle-blower protections. 
Currently there is an imbalance between the legal obligation health 
care workers have to report errors or unusual incidents and the legal 
protections they have against retaliation once they report these 
incidents.
  Greater liability protections for health care workers would help to 
ensure that future medical errors are not made, as well as give state 
medical boards the opportunity to work with colleagues on weeding out 
those doctors that provide an inadequate quality of care to patients.
  Those who are going to support H.R. 5 today will return to their 
respective congressional districts during the August recess and brag to 
the doctors that they voted in favor of medical malpractice reform.
  What they will not tell their constituents is that H.R. 5 is DOA when 
it is sent to the Senate for consideration, and that the other body 
would not think of entertaining legislation with inadequate caps on 
awards.
  Nor will proponents of this bill reveal that H.R. 5, if signed into 
law, would not stem rising medical malpractice insurance premiums, 
because not one provision contained in this bill reforms the insurance 
industry.
  Last night our colleagues on the Rules Committee squandered a 
valuable opportunity to actually fix the root problem of medical 
malpractice.
  Let us send a message to the American people that we are now prepared 
to take the issue of medical malpractice reform seriously. I urge all 
my colleagues to vote against H.R. 5.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield myself 5 minutes.
  Mr. Speaker, I thank the gentleman from Georgia (Mr. Gingrey), my 
friend, for yielding me the time. I should say Doctor Gingrey and that 
I want him to call me Attorney Hastings so we get it clear as to who we 
are around here.
  Mr. Speaker, I rise today in strong opposition to this closed rule. 
Like a broken record, my friends on the other side on the aisle are yet 
again blocking every single Member of this body, Republican and 
Democrat, from offering an amendment to this ill-conceived legislation. 
I might add, no hearings were held regarding same.
  Under this closed rule the majority is committing the greatest form 
of political malpractice. The Republican medical malpractice bill does 
nothing to lower the cost of health care for low- and middle-income 
families. Instead, insurance companies make out like bandits while the 
45 million uninsured Americans continue to live without access to 
quality health care.
  This is the third time in as many years that Republicans are bringing 
this incredulous bill to the floor under a closed rule. In the last 3 
years, 67 amendments have been offered to the underlying bill in the 
Committee on Rules. Republicans have blocked all 67 of them from being 
considered by the House.
  The gentleman from Michigan (Mr. Conyers) and the gentleman from 
Michigan (Mr. Dingell), the ranking Democrats of the two committees of 
jurisdiction, offered a fair and balanced substitute to this 
legislation last night. Their substitute takes steps to weed out 
frivolous lawsuits, requires insurance companies to pass their savings 
on to health care providers, and provides targeted assistance to 
physicians and communities that need it most. The House, however, will 
never have a chance to debate their proposal. As they have done so 
often in the past, what Republicans cannot defeat, they simply do not 
allow.
  The gentleman from Illinois (Mr. Emanuel) and the gentleman from 
Arkansas (Mr. Berry) were also prohibited under the rule from offering 
their common-sense amendment. Their amendment would have taken out 
language from the underlying legislation that protects manufacturers of 
medical products, including pharmaceutical

[[Page H6862]]

companies, from being sued even when they knowingly place a faulty 
product on the market.
  For example, when Merck did an internal test on the side effects of 
Vioxx, it reported that only \1/2\ of 1 percent of those tested had 
incurred some type of cardiovascular event. A further investigation 
showed that Merck had actually doctored the study when, in fact, 14.6 
percent of Vioxx patients were negatively affected by the medication.
  Under the Republican medical malpractice bill, those who have died or 
been injured when taking Vioxx will have no legal ground on which to 
seek compensation for Merck's outright negligence. Many at home may be 
asking themselves, How could Congress knowingly protect a manufacturer 
from being sued if it continues producing a product that it knows is 
faulty and can cause real harm or even death to someone? What about 
corporate responsibility? What about protecting the lives of innocent 
Americans?
  To them I say, if the underlying legislation becomes law, what I just 
described will become the norm. The majority have made it crystal clear 
that they do not believe irresponsible companies and manufacturers 
should be held responsible for their actions no matter the harm they 
inflict. As my colleague and good friend on the Committee on Rules, the 
gentleman from Massachusetts (Mr. McGovern) said last night, welcome to 
the Committee on Rules, where democracy goes to die.
  Mr. Speaker, President Bush and the Republican Party have unfairly 
singled out trial lawyers as the root cause of skyrocketing medical 
malpractice insurance rates across the Nation. They suggest that the 
prevalence of ``pain and suffering'' awards in malpractice suits have 
forced insurance companies to raise their liability insurance rates and 
force doctors out of business. This suggestion is both superficial and 
wrong.
  H.R. 5 does nothing to help doctors with high malpractice insurance 
premiums. Study after study have confirmed that while the insurance 
company is raising premiums for doctors at a record pace, the amount 
they pay out for lawsuits has remained stable. The insurance industry 
is price-gouging physicians and lying to the public all to justify 
limiting the rights of victims so that the industry can add to its 
already record-setting bottom line.
  This bill is a distraction from the real problems that exist in 
America's failing health care system. Physicians and lawyers are 
pointing fingers at each other while insurance companies are quietly 
and quickly running to the bank.
  Solutions to our Nation's health care woes do exist, Mr. Speaker, but 
they go beyond blaming one group of Americans and involve more than one 
easy-to-fix resolution. I urge my colleagues to oppose this closed rule 
and reject the underlying bill.
  Mr. Speaker, I reserve the balance of my time.
  Mr. GINGREY. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, this mention of greedy, gouging insurance companies, I 
just want to point out to my colleague that the only insurance company 
that still is offering medical malpractice insurance in the State of 
Georgia is Mag Mutual. And in 2004 they made $7 million on their rather 
conservative investment portfolio and still lost money because of the 
claims paid and defending all of these frivolous lawsuits.
  Mr. Speaker, I yield 2 minutes to the gentlewoman from West Virginia 
(Mrs. Capito), my colleague on the Committee on Rules.
  Mrs. CAPITO. Mr. Speaker, I thank the gentleman for yielding me time.
  Mr. Speaker, I rise today in strong support of the Help Efficient, 
Accessible, Low-Cost, Timely Healthcare Act of 2005, commonly referred 
to as the HEALTH Act.
  If it seems like you have seen me speaking on this before, that is 
because I have. The House of Representatives has done their part and 
passed this much-needed legislation several times during my service in 
Congress. It is my sincere hope that the other body will answer the 
call of millions of Americans who have been impacted with the loss of 
their doctor and help rein in an out-of-control medical liability 
system.
  I am very optimistic we can achieve this goal, primarily because my 
home State of West Virginia has passed very similar legislation. If 
West Virginia's Legislature and Governor can put politics aside and 
work for the common good, then this Congress should be able to do the 
same.
  Five years ago the medical liability climate in West Virginia reached 
a fevered pitch. Countless physicians, especially specialists, were 
beginning to leave the State, their home State, because of the 
prohibitively high cost of insurance premiums. Our largest trauma 
center was forced to close because of lack of physicians. Many of these 
physicians were orthopedists, OB-GYNs, and neurologists, and for a 
rural State with already limited access to specialists, this was a 
critical blow to health care accessibility.
  Individuals throughout the State were extremely concerned about the 
ability to find a doctor, keep a doctor, and about the doctor that they 
love and trust leaving the practice of medicine. Thankfully, the 
leaders in West Virginia enacted sensible reforms that have stabilized 
our healthcare delivery system.
  As a matter of fact, the hospitals in West Virginia have said one of 
the biggest benefits to this legislation, very similar to the 
legislation we have today, is that it stabilized the situation so they 
can now recruit and retain physicians in the State of West Virginia.
  The HEALTH Act is needed on a Federal level because other States have 
not had the success of my State. This act puts in common-sense reforms 
to the tort system. I urge all to support the rule and to realize that 
this approach, which is similar to California's approach and West 
Virginia's approach, can work successfully and can be passed in a 
bipartisan way.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield 4 minutes to the 
distinguished gentleman from Massachusetts (Mr. McGovern), my good 
friend who serves on the Committee on Rules.
  Mr. McGOVERN. Mr. Speaker, I thank the gentleman from Florida for 
yielding me time.
  I rise in opposition to this rule and to the underlying legislation. 
This bill is a perfect example of the ironclad control that the 
pharmaceutical industry has over the Republican leadership of this 
House. It is so in your face, it is so out in the open, it takes my 
breath away.
  Instead of improving the medical industry and providing protection to 
its consumers, H.R. 5 provides sweeping liability protections to drug 
manufacturers. H.R. 5 does nothing to address the dramatic escalation 
of insurance premiums and health care costs. Forty-five million 
Americans, 16 percent of our population, do not have health insurance. 
Placing caps on the punitive damages that could be awarded to victims 
of medical malpractice will not provide one single American with health 
insurance.
  From the onset this bill has been handled improperly: no mark-ups, no 
amendments, no hearings. In fact, for the third time in 3 years, as the 
gentleman from Florida (Mr. Hastings) has pointed out, the Committee on 
Rules' Republicans have prevented any House Members from offering 
amendments to this bill.
  Last night the committee Republicans rejected all 15 amendments 
offered, including an amendment that would have stripped the bill of 
the special protections for irresponsible drug companies. Over the past 
3 years, Committee on Rules' Republicans have rejected a whopping 67 
amendments to medical malpractice legislation. Eliminating amendments 
and shutting down debate is not how this House should operate.
  Why has this bill been rushed to the floor, bypassing both the 
Committee on the Judiciary and the Committee on Energy and Commerce 
despite the abundance of startling information in the headlines 
regarding the misconduct of drug industry giants like Merck, the 
creator of the deadly drug Vioxx?
  According to testimony given by FDA scientist Dr. David Graham before 
the Senate Committee on Finance, Vioxx may have caused as many as 
55,000 deaths and 160,000 hearts attacks. Mr. Speaker, how can we 
reward a company that has knowingly created, marketed and distributed a 
drug which has caused 55,000 deaths?

[[Page H6863]]

  Well, that is exactly what this bill does. By providing across-the-
board immunities to drug and device manufacturers, the pharmaceutical 
industry would never be held accountable for injuring or even killing 
people.
  Without the threat of full liability, there are no financial 
incentives for drug companies to keep life-threatening drugs like Vioxx 
off the market. Vioxx was always a dangerous drug. From its inception 
in 1999, Merck knew that Vioxx significantly increased the chance of 
hearts attacks and cardiovascular problems. In 1999 and 2000, two 
clinical trials showed that people taking Vioxx had a fivefold increase 
in hearts attacks.

                              {time}  1730

  It was not until 2002, after multiple requests from the FDA, that 
Merck reluctantly change its warning label to include the severe risk 
of heart attack.
  Mr. Speaker, this was too little, too late. Vioxx should have been 
pulled from the market years ago, and its victims and victims' families 
should have been compensated appropriately.
  It was not until September 2004, after several more studies and 
testimonies from high-level FDA officials that Merck voluntarily 
withdrew Vioxx from the market. And here we are, less than a year 
later, considering a bill that provides immunity for drug manufacturers 
that create and distribute unsafe, possibly deadly, drugs.
  Mr. Speaker, everyone is aware of the dangers of Vioxx, and the fact 
that Merck continued selling it knowing of its dangers. How can this 
House in good conscience reward the drug industry for bad behavior? The 
American people deserve a better bill, a bill that actually protects, 
not endangers them.
  I would like to say to my friends on the other side of the aisle: if 
you want to protect irresponsible drug companies, that is your choice. 
Go right ahead and do it. But I am interested in protecting people. The 
least you could do is allow us to vote up or down on amendments that 
would hold the drug companies accountable.
  There is no reason why, none whatsoever, why this rule needs to be 
closed. It is a disgrace that this has been brought to the House floor 
under a closed rule. I urge my colleagues to vote ``no'' on the rule 
and ``no'' on the underlying bill.
  Mr. GINGREY. Mr. Speaker, I am pleased to yield 2 minutes to the 
gentleman from Florida (Mr. Weldon), an internal medicine specialist.
  Mr. WELDON of Florida. Mr. Speaker, I thank the gentleman for 
yielding me this time; and as he stated, I practiced internal medicine, 
but that was not the only type of medicine I practiced. I also 
practiced defensive medicine.
  We can talk about medical malpractice premiums and the costs for 
doctors, and we can talk about suing drug companies, and we can talk 
about high premiums in States like West Virginia, which we heard about 
from the gentlewoman from West Virginia, how specialists leave the 
States. We had that problem in Florida. We had the neurosurgeons in 
Orlando threatening to leave because of the high premiums in Orlando. 
The trauma center would have been downgraded from a level one to a 
level two center.
  But those are really not the issues. The real issue here is the 
incredible, incredible cost of defensive medicine. And I practiced it 
every day. I confess, I ordered extra tests to keep myself from being 
sued. And if you think this is just anecdotal, it is not, my 
colleagues. This was studied very nicely at Stanford University.
  This is old data. It was published in the Quarterly Journal of 
Economics, 1996. They looked at California, and they looked at just two 
diagnostic codes, unstable angina, eschemic heart disease; and the 
study showed after the medical malpractice reforms went in place in 
California, the charges to the Medicare plan declined significantly. 
Guess what? Morbidity and mortality did not go up. Quality was 
maintained.
  They estimated in that study, in 1996 dollars, that defensive 
medicine cost our health care delivery system $50 billion a year. It is 
estimated by today's dollars that it is well over $100 billion a year.
  Now, my colleagues want to take care of the uninsured and they want 
prescription drugs for senior citizens? Then do something about this 
very costly system.
  Mr. WELDON of Florida. Mr. Speaker, the study earlier referred to 
follows:

                 [From Forbes Magazine, Jan. 27, 1997]

                        Rx: Radical Lawyerectomy

                            (By Peter Huber)

       How do you trim $20 billion a year from Medicare? That's 
     about what it will take to stave off bankruptcy. The easiest 
     way: amputate lawyers.
       It can be done. In 1995 Congress immunized community health 
     care centers from malpractice suits. The federal government 
     now covers the claims incurred by these federally subsidized 
     clinics--claims are heard by a judge, not a jury, and there 
     are no punitive awards. The clinics save an estimated $40 
     million in malpractice insurance. That funds treatment for an 
     additional half-million indigent patients.
       Why stop there? The country spends about $8 billion a year 
     treating elderly heart-disease patients. Cap awards, abolish 
     punitive damages, implement a few other direct, financial 
     limits on medical malpractice suits, and you reduce hospital 
     expenditures on cardiac patients by 5% to 9%.
       If limits like these had been written into federal law, 
     nationwide spending on cardiac disease in the late 1980s 
     would have been $600 million a year lower. Extrapolate these 
     results to medical spending generally--a debatable but 
     reasonable enough basis for estimation--and you find that 
     tort reform would save the country as a whole well over $50 
     billion a year.
       But how much more negligent medicine would that encourage? 
     How many more cardiac patients would die? How many more would 
     get inferior treatment and suffer a second heart attack as a 
     result? The best estimate: None at all. Nor would any true 
     victims of negligence go uncompensated. The reforms we're 
     talking about here don't eliminate liability, they just place 
     sensible limits on windfalls and double-dipping. They are in 
     fact already part of the law in many states.
       The numbers I cite come from a very important paper, ``Do 
     Doctors Practice Defensive Medicine?'' written by Daniel 
     Kessler and Mark McClellan, both of Stanford University. The 
     paper appeared in the May 1996 Quarterly Journal of 
     Economics.
       The authors analyze data on all elderly Medicare 
     beneficiaries hospitalized for serious heart disease in 1984, 
     1987 and 1990. The study correlates spending for medical care 
     with state tort laws. About three patients in five were 
     treated in states that placed no direct limits on rights to 
     sue. But two in five were hospitalized in states that did. 
     Direct liability limits have clear, strong effects on medical 
     spending, the study concludes.
       But that's just the first half of the story. Previous 
     studies--most notably one conducted by Harvard Medical School 
     in 1990--asked panels of doctors to review patient files and 
     attach subjective judgments about adverse outcomes and 
     deficient treatment. Much of the ``negligence'' identified in 
     this way had no significant impact on the ostensible victim. 
     Studies like this didn't reveal much about the consequences 
     of malpractice litigation because they didn't pin down the 
     consequences of malpractice itself.
       With elderly cardiac patients there are objective standards 
     for assessing ineffective care: Patients die, or they end up 
     back in a cardiac ward not long after discharge. Analyzing 
     the record on these solid criteria, Kessler and McClellan 
     reach a second, clear conclusion: None of the liability 
     reforms studied ``led to any consequential differences in 
     mortality or the occurrence of serious complications.''
       If liability doesn't force doctors to provide better 
     treatment, why does it boost the cost of medicine so sharply? 
     Unlimited liability gets you more medicine, not better. 
     Lawyer-shy doctors administer tests willy-nilly, and hand off 
     patients to specialists with great alacrity. They know that 
     the surest way to avoid liability is to dispatch your problem 
     patient to someone else--a lab technician or another doctor. 
     This can go on indefinitely. It's very expensive. And 
     medically useless.
       Congress has generally left medical malpractice reform to 
     the states. But when Medicare and Medicaid patients sneeze, 
     it's the federal Treasury that catches cold. No principle of 
     federalism requires federal taxpayers in Montana to pay for 
     Mississippi medicine ordered up by the lawyers there, not the 
     doctors or patients.
       The best place for Congress to balance the Medicare budget 
     is on the backs of trial lawyers. These lawyers are not old, 
     not poor and not needed.

  Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 3 
minutes and 20 seconds to the very distinguished gentleman from 
Illinois (Mr. Emanuel).
  Mr. EMANUEL. Mr. Speaker, I want to thank my colleague for yielding 
me this time.
  I was a sponsor of the Vioxx amendment, to strip out the protection 
of the pharmaceutical industry. As Americans are watching this debate 
here, here we are on the floor debating about protecting the 
pharmaceutical industry from all liability in a protection that no 
other industry in America would receive, and on the other side of the 
screen the American people are going to be watching the trial on Vioxx

[[Page H6864]]

down in Texas, where a marathon runner, who was also a personal 
trainer, and who took Vioxx for 6 months, died a premature death. They 
will see what this Congress is doing on that civil case.
  Now, we know from the head of FDA that by their estimate 55,000 
Americans died because of Vioxx and the medication. Yet my colleagues 
want to deny that man's family their day at trial and give this 
industry, the only industry in America, a single protection.
  Last year, my colleagues voted for a prescription drug bill to give 
the pharmaceutical industry $132 billion in extra profit, and now you 
want to give them liability protection. This Congress is like the gift 
that keeps on giving. You just do not know how to stop yourself.
  Now, there is a place to redress these grievances. It is called the 
courtroom. With 55,000 deaths, have you no shame? Have you no respect 
for what is going on in America? The American people will see what is 
being done and understand the cost. But Merck, with Vioxx, is not the 
only pharmaceutical company. There is beckstra, accutane. There is 
phen-fen. Those are just some of the medications where other companies 
have not provided the FDA the material they needed to make the 
decision, and then, after the fact, after the consequences, those drugs 
get pulled.
  What is ironic about this whole case and this whole piece of 
legislation is very simple. Just a year ago, many of our colleagues on 
the other side of the aisle joined us in agreeing that the FDA did not 
have the authority, the capability, or the funding to regulate the drug 
market. We were talking about in this very Chamber, on both sides of 
the aisle, setting up another whole entity to regulate this agency. So 
now what do we do in the dark of night, and nonrelevant to the medical 
malpractice legislation, you want to stick in a provision to protect 
the pharmaceutical industry because the FDA approval somehow gives them 
a Good Housekeeping seal when you said here in the well that the FDA 
was not doing its job.
  George Orwell would smile upon this Chamber for the hypocrisy that 
runs free. You have done it with the pharmaceutical industry in the 
prescription drug bill last year, with $132 billion in additional 
profits over 10 years, and now you give them liability protection that 
no other industry in the Nation has, to our knowledge. And all the 
while Americans will watch their TVs, read in their newspapers, and 
listen on radio of the case of an individual's death because of the 
medication he took that was prescribed, and Merck, the company, had 
data before that drug got approved that it would lead to heart attacks 
and premature deaths.
  The right forum is the American court. Yet my colleagues want to do 
this. Let us have an up-and-down vote. Do not be scared. Do not hide 
behind some little rule. Come on out here. Put it out on the table, and 
let us have a vote. The Senate knew it was wrong and pulled it out. So 
do not hide behind the rule. If this is what you want to do, let us 
have an up-and-down vote. You can put your votes right up there if you 
want to stand with this industry, and then the American people can see 
what it is all about.
  I would recommend to my colleagues on the other side that there is a 
gift ban here. You gave them $132 billion in additional profits last 
year. There is a gift ban. The gift has got to stopping giving to the 
pharmaceutical industry.
  Mr. GINGREY. Mr. Speaker, I am pleased to yield 2 minutes to the 
gentleman from Georgia (Mr. Price), my physician colleague, an 
orthopedic surgeon.
  Mr. PRICE of Georgia. Mr. Speaker, I thank the gentleman for yielding 
me this time, and I rise in support of the rule and the bill. This 
debate, this issue is about patients and the principal challenge that 
we have. What is the principal challenge that we have? I believe it is 
that it is imperative that we provide a system which allows patients to 
have access to the highest level of health care, and we are losing this 
across this Nation for a variety of reasons, but not the least of which 
is the lottery mentality of our court system.
  Our system is woefully broken. As a physician for over 25 years, as 
an orthopedic surgeon, I have seen a vast array of medical and surgical 
problems. I have also stood back and been astounded, astounded by 
certain surprising occurrences.
  One was with a patient who was cared for by one of my partners. Not 
too long ago, across this land, we asked patients to identify whether 
their surgery was to be on the right side or the left side so that we 
did not operate on the wrong leg or the wrong arm. And we asked the 
patient in the preoperative area to identify which side was the correct 
side. This one patient marked the incorrect side. The patient did. He 
marked the wrong side on purpose. On purpose.
  Thankfully, thankfully there were enough checks and balances in place 
in this hospital that it was caught just before the surgery began. When 
asked why he marked the wrong side, he said, I thought I'd take a 
chance and see if I could make some money.
  This is the lottery mentality. This is the climate that we are in out 
there. Our system is woefully broken. The mentality in the system that 
we have right now drives hospitals to close, and it drives doctors to 
end their practice. And patients, then, lose the ability to see their 
doctor.
  To ensure Americans have access to the highest-quality care, I 
encourage my colleagues to support both the rule and the underlying 
bill.
  Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 4 
minutes to the gentleman from Arkansas (Mr. Berry), who is a farmer and 
a pharmacist.
  Mr. BERRY. Mr. Speaker, I thank the gentleman from Florida for 
yielding me this time.
  Mr. Speaker, I continue to be amazed as I listen to this debate. I 
can tell you this, I know the difference between butter beans and 
turnip greens, and I am wondering if these folks from Georgia have 
figured that out. They said they passed tort reform, and still the 
insurance companies cannot make any money. They might need to retrain 
their docs.
  I do not know what is going on in Georgia, but I can tell you this, 
you guys pass this bill and you are going to live under it too. It is 
going to be the law of the land, and you are going to have to live 
under it. When your people get hurt, when your family gets damaged, 
when somebody that does not know what they are doing hurts your family, 
when a drug company sells you a bad product and kills somebody in your 
family, you are going to live under this bill, too. Think about it. Is 
that what you really want to do?
  Are you so in bed with the drug companies and the insurance companies 
that you just cannot pass up, as my colleague from Illinois just talked 
about, you just cannot pass up another opportunity to give them money? 
It is absolutely amazing.
  The pharmaceutical industry in this country has proven beyond a 
shadow of a doubt that they do not care about people or anything else. 
All they care about is money. Give us more money. And this Republican 
Congress and this Republican President have given them money in the 
most unashamed possible way that I can imagine.
  If you all really believe this is going to solve the health care cost 
problems in the United States, I have some ocean front property in 
Arkansas I would love to talk to you about.
  This is the most incredible thing I have ever seen. How you have the 
audacity to come before this body and even make the claim that that is 
going to happen is beyond me, and then criticize me and my side of the 
aisle because we are protecting trial lawyers? My goodness alive, that 
is just absolutely amazing.
  The bottom line here is this: just like the gentleman from 
Massachusetts said, the Committee on Rules is where democracy goes to 
die in the U.S. House. You will not even let us have an up-or-down 
vote. Let us have a vote. If you want to protect the drug companies, 
let it stand alone. Let us let you be on the voting block. Let your 
name be public and say, I protected the drug companies, I protected the 
insurance companies, I want to do all I can to help those people. Be 
accountable.
  You are so proud of this, boy, I would get up here and I would really 
talk about it a lot. And when you go home, you are going to meet that 
person that you kept from having their day in court and that you ruined 
their life and there was nothing they could do about it because of this 
law. They are going

[[Page H6865]]

to be all over the place. Let us just hope it is not someone that is 
near and dear to you.
  For me, there is not enough money to repay if you hurt my children or 
grandchildren. My grandson is sitting out here today. I have got three 
other grandchildren. There is not enough money in the whole wide world. 
And yet you all would limit their ability to be repaid to $250,000. 
That is, on its face, absolutely and utterly ridiculous; and why you 
would want to do that is beyond me.

                              {time}  1745

  And why you would want to do that is beyond me, and why you would 
want to do it for the drug companies is certainly beyond my ability to 
understand. But if you do it, you will ultimately be held accountable.
  Mr. GINGREY. Mr. Speaker, I yield myself 15 seconds.
  Mr. Speaker, eight States have specifically focused on 
pharmaceuticals and punitive damages and statutorily provide an FDA 
regulatory compliance defense against such damages. Those States are: 
Arizona, Colorado, Illinois, New Jersey, North Dakota, Ohio, Oregon and 
Utah.
  Mr. Speaker, I yield 1 minute to the gentleman from Pennsylvania (Mr. 
Pitts).
  Mr. PITTS. Mr. Speaker, I rise in support of the rule and the bill. 
Without a doubt, medical liability lawsuits and the extravagant awards 
drain vital resources from our health care system, and the most 
important resource being drained is doctors.
  In Chester County, Pennsylvania, where I live, which happens to be 
the wealthiest county of the 67 counties in Pennsylvania, we have no 
more trauma surgeons. One-third of Pennsylvania doctors in high-risk 
specialties said they plan to leave the State because of the huge 
malpractice insurance rates. Seventy percent of Pennsylvania doctors 
have considered closing their practice because of the cost of medical 
malpractice insurance.
  A few years back, the Lancaster Health Alliance, another county I 
represent, was planning to open a new clinic to serve the poor in 
Lancaster, but a $1.5 million hike in malpractice insurance forced them 
to abandon the project.
  In Pennsylvania and many other States, we have a crisis on our hands, 
and the cost of this crisis is measured in terms of doctors leaving, 
hospitals closing, new clinics not being built, and patients not being 
served. H.R. 5 is the right answer for the crisis. I urge my colleagues 
to support the legislation and the rule.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield 2 minutes to the 
gentleman from New York (Mr. Crowley).
  Mr. CROWLEY. Mr. Speaker, I oppose this rule, and I oppose this 
overreaching bill. A lot of people on the other side of the aisle are 
trying to claim that caps on awards for victims of medical malpractice 
will help doctors. Some are claiming that caps on awards will even help 
patients.
  The other side has one crucial fact wrong. Capping medical 
malpractice awards does not mean insurance rates will fall. A recent 
study, looking at premiums over the last 5 years, found that claims 
payments have been stable while premiums have more than doubled. In 
fact, malpractice insurers' total premiums were three times higher than 
total payments in 2004.
  If we want to decrease medical malpractice insurance costs for 
doctors, let us talk about that. Let us talk about reducing medical 
errors by improving hospital resources and funding for graduate medical 
school education. Or let us talk about investigating insurance 
companies' pricing practices. But to pretend that this is medical 
malpractice awards set by juries and judges who have actually listened 
to victims' grievances, to put the blame for rising insurance costs on 
victims, that is not only cruel, it is completely false.
  If we want to cap medical malpractice awards, let us call it for what 
it is: a gift to the insurance industry at the expense of innocent 
victims.
  This bill hurts patients wrongly injured or killed by bad doctors, 
does not lower medical malpractice rates for the so many good doctors 
out there, and really only benefits the insurance companies. The other 
side would rather drive a wedge between two noble professions: doctors 
and lawyers. I say that is wrong-headed. Vote down this rule; and more 
importantly, vote down this bill.
  Mr. GINGREY. Mr. Speaker, I yield myself 2 minutes.
  Mr. Speaker, listen to these numbers: 19, the number of States in a 
full-blown medical liability crisis; 72 percent, the number of 
Americans who favor a law that guarantees full payment for lost wages 
and medical expenses, but limits noneconomic damages; $70- to 127 
billion a year, the cost of the defense of medicine, which could be 
significantly reduced by medical liability reforms; $10.2 billion, the 
amount of money paid out by licensed commercial insurers in 2002 for 
medical liability claims; 100 percent or more, the increase in 
liability insurance premiums that one-third of the Nation's hospitals 
saw in 2002; 48 percent, the proportion of America's medical students 
in their third or fourth year of medical school who indicated that the 
liability crisis was a factor in their choice of specialty, threatening 
patients' future access to critical services; 3.9 million, the increase 
in the number of Americans with health insurance if Congress were to 
pass common-sense reforms.
  Mr. Speaker, we are not talking about anybody's right to a redress of 
grievances when they have been injured because of a physician or 
provider of care or a facility or hospital practicing below the 
standard of care in that local community. There are no limits on 
economic awards. As I said earlier, that could be $5 million. And as I 
said earlier, when you get into a courtroom and you listen to the 
plaintiff's attorney calculating the cost, the economic cost, a new 
home because of a disability access need costing $450,000, an au pair, 
a companion to go to the movies with the person that was injured, and 
on and on and on, these economic costs sometimes are astronomical.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield 3 minutes to the 
gentleman from New Jersey (Mr. Pascrell).
  Mr. PASCRELL. Mr. Speaker, I rise as an opponent to the rule that is 
before us, and I will vote ``no'' also on the bill.
  I would like to go back to one of the speakers just a few moments ago 
who mentioned in his State Mag Mutual. Mag Mutual is one of the 12 
largest monoline medical malpractice insurers in the United States. And 
in 2004, coincidentally, they had 216 percent above what is adequately 
called their surplus. They have excess surplus.
  We have a crisis, we have a problem, but I personally believe that we 
are attacking the wrong folks in order to resolve the problem. The key 
words here are insurance reform. It is true that due to premium 
increases, the cost of practicing medicine in the State of New Jersey 
is rising at an unsustainable pace, but not for the reasons that the 
proponents of H.R. 5 are claiming.
  According to the Kaiser Family Foundation, medical malpractice 
premiums are not rising because of claims or settlements. In fact, 
medical malpractice pay-outs have increased by 5.7 percent since 2001, 
and this is the chart to prove it. Payouts increased by 5.7 percent and 
120 percent increase in premiums, you have the wrong dog in this race. 
Premiums nationally have risen over 120 percent in the same period. 
That is the real story.
  Monetary caps are not the answer. You have not addressed the example 
that was put before this body: The Vioxx. Nobody wants to face that. 
Nobody wants to address that. A woman injured, cannot provide, cannot 
have a pregnancy, cannot give birth to a child, $250,000 cap. You have 
to be kidding me. I want that to be addressed. Monetary caps are not 
the answer.
  Actually, the premiums in States without caps on damages are almost 
10 percent lower than those with caps.
  In California, Mississippi, Nevada, Ohio, Oklahoma, and Texas, 
insurers have continued to raise premiums despite the fact that these 
States passed caps. And what happened in California, they had 
Proposition 103. That is what leveled off, if we consider it leveling 
off, the antitrust exemption that rates began to finally come down.
  It is a gift to the insurance companies, the HMOs, the medical 
institutions that harm patients and are filled

[[Page H6866]]

with liability protections for manufacturers of defective or harmful 
health care products. This is plain and simple.
  The Committee on Rules prevented any Member from offering amendments 
to this legislation. It is too serious. We are talking about life or 
death in many cases; the substitute amendment of the gentleman from 
Michigan (Mr. Conyers) and the gentleman from Michigan (Mr. Dingell) 
that takes steps to stop frivolous lawsuits, insurance reform and 
targeted assistance to the physicians in the communities who need it 
most. For these reasons I urge my colleagues to defeat the rule and 
this piece of legislation, H.R. 5.
  Mr. GINGREY. Mr. Speaker, I yield myself 3 minutes.
  A couple of minutes ago I was given some statistics. I want to 
continue in that vein. The gentleman from New Jersey (Mr. Pascrell) 
just mentioned the situation in California. Of course, this bill, H.R. 
5, is patterned after that very successful MICRA legislation, Medical 
Injury Compensation Reform Act, passed in 1979 in California. Here we 
are some 26 years later, and medical malpractice insurance premium 
rates have stabilized, growing only at about 6 percent per year.
  But listen to these numbers in regard to whether people continue to 
get just compensation for their injuries when you do have a cap on so-
called noneconomic or pain and suffering.
  September 2003, 9-year-old boy, San Francisco jury awarded $70.9 
million in compensatory damages after finding a hospital and a medical 
clinic negligent for failing to diagnose his metabolic disease.
  December 2002, $84.250 million total award, Alameda County, a 5-year-
old boy with cerebral palsy and quadriplegia because of delayed 
treatment of jaundice after birth.
  January 1999, $21.789 million award, Los Angeles County, newborn girl 
with cerebral palsy and mental retardation because of a birth-related 
injury.
  October 1997, $25 million total award, San Diego County, boy with 
severe brain damage, spastic quadriplegia, mental retardation because 
of too much anesthesia administered during a procedure.
  November of 2000, $27.573 million, San Bernardino, California, 25-
year-old woman with quadriplegia because of failure to diagnose a 
spinal injury.
  July 2002, $12.5 million, Los Angeles County, 30-year-old homemaker 
with brain damage because of lack of oxygen during recovery from 
surgery.
  Mr. Speaker, people are not being denied access to an opportunity to 
redress their grievances when they have been injured when someone has 
practiced below the standard of care. No physician member of this body, 
no physician in this United States would want anything like that. We 
want people to recover when one of our colleagues have indeed caused 
that harm.
  Mr. Speaker, we know of cases in our own hospitals where lawsuits are 
brought against one of our colleagues where we know they practiced 
below the standard of care, and we are the biggest cheerleaders for the 
plaintiffs in those situations. H.R. 5 has nothing to do with that.
  Mr. Speaker, we are just limiting this noneconomic so-called pain and 
suffering. It has worked in California, and it will work in the rest of 
the country.
  Mr. Speaker, I reserve the balance of my time.

                              {time}  1800

  Mr. HASTINGS of Florida. Mr. Speaker, I yield myself such time as I 
may consume.
  I went to school and almost became a physician. I do not know what 
there is about some of the damages that the gentleman from Georgia 
calls so-called damages. I do not know how brain damage, losing my 
legs, double mastectomies, those kinds of things, are so-called 
punitive damages. If doctors commit those kinds of errors, they ought 
to be held accountable, and juries are the best place for that to 
occur.
  Mr. Speaker, I yield 3 minutes to the distinguished gentleman from 
Oregon (Mr. DeFazio).
  Mr. DeFAZIO. I thank the gentleman for yielding time.
  Mr. Speaker, this is a perfect bill. It must be perfect because not 
one amendment will be allowed, including my amendment. Now, the 
Republicans say free markets. We want free markets. How come we do not 
have a free market in insurance, I ask them? The insurance industry is 
exempt from the antitrust law. They can and do get together legally and 
collude to drive up the price of insurance for every American in every 
line of insurance. Not just medical malpractice. That is legal for the 
insurance industry. It is not legal for the two corner gas stations. 
They would go to Federal prison. It is not legal for any other industry 
in America. But they would not allow a vote on my amendment just to 
say, let us have a market in insurance. Let us take away their 
antitrust exemption. Let us have competition. Maybe that will lower 
prices. They seem to believe in competition until their pockets are 
being filled at election time by an industry that is exempt from 
competition. But they say they are going to solve the problem here 
tonight with this bill.
  Now, the other thing the gentleman from Georgia is not talking much 
about is why we should exempt the pharmaceutical industry for deadly 
and dangerous drugs, people who have died and been seriously injured, 
from any liability. What other industry in America has that exemption? 
So this is sort of a perfect bill; is it not? The two largest 
contributors to the Republicans are the pharmaceutical and insurance 
industries. The insurance industry is exempt from competition and 
antitrust law, and now they want to exempt the pharmaceutical industry 
from having to pay people for having killed their spouse, their 
children, or having perhaps caused so-called brain damage or a so-
called heart attack or something else with a defective product. That is 
unbelievable.
  I wish the gentleman would spend the rest of his time talking about 
why the pharmaceutical industry needs an exemption when they have 
actually maimed or killed people. If we are going to extend it to the 
pharmaceutical industry, how about the automobile industry? We have got 
a lot of industries in America that could use an exemption from 
liability that have to pay and go to court now. But, no, they are 
saying the pharmaceutical industry should not have to do that, because, 
as we know, they have the best interests of Americans at heart. That is 
why they do not want to allow us to import cheaper drugs from Canada, 
and they are threatening the Canadian Government. That is why they are 
the most consistently profitable industry in America when our seniors 
are cutting their drugs in half. No, they need protection from this 
horrible scourge of being sued when they have sold a defective product 
like Vioxx and actually concealed the tests from the American people 
and perhaps from the FDA.
  I wish the gentleman would spend the rest of his time defending the 
antitrust exemption for the insurance industry, because if he believes 
in free markets, he should support my amendment. It should be part of 
this bill. We should get to vote on that. We should say, let us have 
competition in insurance. That will help the doctors. It is not the 
total solution, there are other things that need to be done, but that 
certainly would help the doctors.
  It would help every other American with every other line of 
insurance, too. Your car insurance might come down. Your homeowner 
insurance might come down. But they do not want to allow that vote, and 
now they want to have a huge new exemption for the pharmaceutical 
industry. I guess we know who is lining up behind their next campaign 
with very generous contributions.
  Mr. GINGREY. Mr. Speaker, I yield myself 2 minutes.
  I am sure the gentleman from Oregon was not questioning anyone's 
motives in his remarks. I think maybe the section of H.R. 5 that says 
no punitive damages to a pharmaceutical company, a drug maker or a 
medical products manufacturer that makes something, a drug or a medical 
product, that has been ruled safe, it has gone through all FDA testing, 
there is absolutely no reason to suspect that the drug or product is 
defective based on phase 1, phase 2, phase 3 trials, and then something 
turns up. It only relieves that manufacturer of punitive damages. As I 
say, Mr. Speaker, maybe we ought to call that section the Oregon model, 
because that is the exact same thing that exists under Oregon law.

[[Page H6867]]

  Mr. Speaker, I reserve the balance of my time.
  Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 1\1/
2\ minutes to the gentleman from Illinois (Mr. Lipinski), a new Member, 
the son of a former Member of the United States Congress, our former 
colleague Bill Lipinski.
  Mr. LIPINSKI. I thank the gentleman from Florida for yielding me this 
time.
  Mr. Speaker, I rise today in opposition to the closed rule on H.R. 5 
and the underlying bill. There is a need for medical malpractice 
reform, and the amendments offered in the Rules Committee could have 
made this a good bill for improving access and care. But the Rules 
Committee refused consideration of all the amendments, including one 
that I offered that would have directly reduced the number of 
malpractice cases in court by facilitating the use of mediation. 
Mediation has proven to be a cost-effective and timely way to settle 
malpractice cases. Rush Medical Center in Chicago now has one-third of 
its cases go to mediation instead of litigation. Other hospitals around 
the country have begun to try to attempt similar programs, but have hit 
the roadblock of a lack of mediators with a medical background who are 
available.
  My amendment would have provided grants to set up mediation programs 
and to train medical malpractice mediators. This would have done 
exactly what this bill purports to do, reduce the burden of litigation.
  We should have the opportunity to debate this and all the amendments 
proposed. I urge my colleagues to vote against this rule and vote 
against this bill.
  Mr. GINGREY. Mr. Speaker, I yield myself 1 minute.
  Mr. Speaker, in addition to about 75 percent of the American public 
that are in favor of placing caps on noneconomic damages, let me just 
list a few other organizations that are in favor of that as well: The 
American Academy of Family Physicians, the American Academy of 
Pediatricians, the American Association of Home and Services For the 
Aging, the American College of Emergency Physicians, the American 
College of Nurse Midwives, the American College of Obstetricians and 
Gynecologists, the American College of Surgeons, the American Health 
Care Association, the American Hospital Association, the American 
Medical Association; the absence, of course, of the American Trial 
Lawyers Association.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield myself the balance of 
my time.
  One of the previous speakers, the gentleman from Georgia (Mr. Price), 
said that some victims have won, quote, the malpractice lottery. Tell 
that to, for example, Ms. Linda McDougal, who had a double mastectomy 
because a doctor misdiagnosed her condition and recommended this 
radical procedure. Does the gentleman from Georgia (Mr. Price) really 
think that Ms. McDougal has won some sort of lottery? I just cannot 
believe that.
  Key findings from ``The Growth of Physician Medical Malpractice 
Payments: Evidence From The National Practitioner Data Bank'' show that 
the average annual malpractice claim pay-out rose only 4 percent a year 
from 1991 to 2003, in line with the average overall increase in the 
cost of health care.
  Time will not permit me to go into a litany of statistics and 
supporters, but I do want to point out that the thought seems to be 
that people do not want to practice medicine. Well, the number of 
doctors increased throughout the Nation from 1985 to 2001, even in 
States with no malpractice award caps. The study showed that there were 
497,140 professionally active doctors in 1985 and 709,168 in 2001. The 
report found little evidence that doctors are leaving one State for 
another State with malpractice award caps.
  Mr. Speaker, I urge Members to vote ``no'' on the previous question 
so I can amend the rule to make in order the Emanuel-Berry amendment. 
This amendment would strike from the bill a provision granting immunity 
to manufacturers of medical products from being sued when it is 
discovered that those manufacturers withheld potentially damaging 
information from the FDA and the public. The amendment was offered in 
the Rules Committee yesterday, but, like all the rest, was defeated on 
a straight party-line vote.
  Mr. Speaker, I ask unanimous consent to print the text of the 
amendment immediately prior to the vote on the previous question.
  The SPEAKER pro tempore (Mr. Bass). Is there objection to the request 
of the gentleman from Florida?
  There was no objection.
  Mr. HASTINGS of Florida. Mr. Speaker, what is a provision protecting 
the drug companies doing in a bill that is supposed to be about 
doctors' malpractice premiums? How does this provision ever get into 
this bill in the first place? My guess is that many of my colleagues 
who support this bill have been asking the same question and would vote 
to strike it from the bill if they were given the opportunity. But 
because of this closed rule, the House will not have the opportunity to 
strike this embarrassing sop to the pharmaceutical industry from this 
legislation. Defeating the previous question will give Members a chance 
to vote on what has now been dubbed the ``Merck loophole.''
  This section is not just bad policy, Mr. Speaker, it is almost 
criminal. Every day we read about more evidence that the pharmaceutical 
company Merck concealed information about the risks of its FDA-approved 
drug Vioxx. I do not think any of my colleagues want to find themselves 
in the position of defending people who hid information about this drug 
that could have saved someone's life.
  Vote ``no'' on the previous question so we can debate this important 
amendment. I want to make it very clear that a ``no'' vote will not 
stop us from considering this legislation. We will still be able to 
consider the medical malpractice legislation on the floor today. 
However, a ``yes'' vote will prevent us from considering the Emanuel 
amendment to strike this ill-conceived language.
  Again, vote ``no'' on the previous question.
  Mr. Speaker, I yield back the balance of my time.
  Mr. GINGREY. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman 
from Indiana (Mr. Burton).
  Mr. BURTON of Indiana. Mr. Speaker, we had a situation a few years 
ago where on the homeland security bill at about 11 o'clock at night, 
they stuck language in the bill which prohibited class action lawsuits 
against the manufacturers of thimerosal, which is a preservative that 
is in vaccines, and 50 percent of it is ethyl mercury. We have hundreds 
of thousands of kids that have been damaged by ethyl mercury in 
vaccines. It is called thimerosal. The language in this bill, and I 
want to read it to you, says, ``No punitive damages may be awarded 
against the manufacturer or distributor of a medical product, or a 
supplier of any component or raw material of such medical product, 
based on a claim that such product caused the claimant's harm where,'' 
and it goes on.
  The way I read this, these people who have been damaged, and we have 
been fighting for years to get them the ability to get money from the 
Vaccine Injury Compensation Fund, one of the negotiating things that we 
have had is the language that is being put in this bill that is going 
to stop that. What this means simply is that if this passes with this 
language in it, the way I understand it, those people, those thousands 
and thousands of people that have children that have been damaged by 
thimerosal, mercury, in vaccines will have no recourse, and they cannot 
get any restitution out of the Vaccine Injury Compensation Fund the way 
it is right now. I do not know how this got in here, but I can tell you 
right now, this is not good. I want to support my chairman and the 
Rules Committee, but this language is not good.
  Mr. DREIER. Mr. Speaker, if the gentleman will yield, there is an 
exception that is provided for vaccine injury in the bill. I think it 
is also very important to note, as the gentleman from Georgia said 
earlier, that this deals with equipment and pharmaceutical products 
that have been approved by the Food and Drug Administration. That is 
the reason that this is provided, because that kind of direction that 
has come from the FDA is included.
  Mr. BURTON of Indiana. Thimerosal was approved as well. You say there 
is

[[Page H6868]]

language in here that does exempt vaccines?
  Mr. DREIER. Section 10, Effect on Other Laws, there is a vaccine 
injury exemption that is included in the bill. I have got it right 
here. I am happy to show it to the gentleman.

                              {time}  1815

  Mr. GINGREY. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, in concluding this debate on House Resolution 385, I 
would like to encourage my colleagues to not only support this rule but 
also the underlying bill. I want to thank all of those who spoke on 
behalf of the rule and applaud them for their willingness to address 
this problem in an honest and an open fashion.
  Unfortunately, some opponents of this legislation seem content to 
demagogue the issue and pander to those special interests who are 
determined to keep the playing field tilted in their favor.
  Mr. Speaker, I include for the Record letters of the many 
organizations that have been submitted to me in support of this bill.

                           Letters of Support

       A. PIAA (Physician Insurers Association of America)
       B. American Osteopathic Association
       C. American College of Obstetricians and Gynecologists
       D. American Academy of Ophthalmology
       E. American College of Surgeons
       F. The Society of Thoracic Surgeons
       G. The Doctor's Company
       H. Californians Allied for Patient Protection
       I. Physicians Insurance
       J. JPMSLIC Insurance Company
       K. American College of Physicians
       L. American Society of Anesthesiologists
       M. Premier Advocacy
       N. American Association of Nurse Anesthetists
       O. American Medical Directors Association
       P. American Association of Orthopaedic Surgeons
       Q. American Medical Association--Michael Maves, Executive 
     Vice President
       R. Chamber of Commerce
       S. American Benefits Council
       T. American College of Cardiology
       U. American Academy of Otolaryngology--Head and Neck 
     Surgery
       V. American College of Osteopathic Family Physicians

  Mr. Speaker, some might not want to see reform, but I have list upon 
list and a binder full of organizations and individuals who recognize 
that we have a problem, and they see H.R. 5 as the solution. Over 200 
medical organizations from the American Medical Association, the 
American College of Surgeons, to the American Dental Association to the 
United States Chamber of Commerce have urged this Congress to act now, 
not later.
  A recent survey by the Health Coalition on Liability and Access found 
that 72 percent of Americans favor a law that would guarantee full 
payment for economic losses like lost pay and medical costs, but would 
limit noneconomic costs. With an overwhelming majority of the American 
people and most health care organizations in support of the language of 
this legislation, we in the House of Representatives cannot stand idly 
by with a good commonsense solution at our fingertips.
  Again, this bill in no way, shape, or form limits the amount an 
individual can receive in economic damages. If someone's hospital bill 
or lost wages costs $50,000, $500,000, or even $5 million, they can 
still be awarded the full amount in damages less attorneys' costs and 
fees. If there are punitive damages that are applicable because a 
physician or health care provider deliberately, deliberately, causes 
injury to a patient, then punitive damages can be awarded double the 
economic damages. So if it were $5 million worth of economic damages, 
then there could be $10 million worth of punitive damages.
  The same thing, Mr. Speaker, is applicable to medical product 
manufacturers and the pharmaceutical industry that produces these 
drugs. The other side would make us believe that they were granted 
complete immunity. Absolutely not, if they knowingly withheld 
information. Only economic damages are limited; and punitive damages, 
as I say, would be calculated by a responsible formula.
  Finally, H.R. 5 ensures that victims benefit from a fairer system and 
they receive a greater portion of their damages. Ultimately, the 
biggest winner in H.R. 5 is the American consumer-patient who will have 
better access to health care and lower health care costs. I think that 
alone testifies to the importance of this bill and the need to put 
partisanship aside for the sake of the people who sent us here to 
represent them. They deserve no less.
  Again, I want to thank the gentleman from Wisconsin (Chairman 
Sensenbrenner) and the gentleman from Texas (Mr. Barton) for their 
timely consideration of this bill, as well as the gentleman from Texas 
(Mr. Smith), who is the Courts, the Internet, and Intellectual Property 
Subcommittee chairman of the Committee on the Judiciary and floor 
manager of H.R. 5.
  I again would encourage my colleagues to support House Resolution 385 
and H.R. 5.
  Mrs. CHRISTENSEN. Mr. Speaker, as most members of this body know, I 
am a physician, and a member of physician organizations who practiced 
family medicine for 21 years. So, I know this issue first hand, and I 
am deeply troubled about patients who will be denied just compensation 
under the approach this bill takes--caps on damages.
  I am also outraged that physicians are being used as pawns in the 
game of political one-upmanship this bill plays with its narrow, 
misguided and ineffective focus and attack on trial lawyers.
  And we all know, because we read the same reports that H.R. 5 bill 
will not fix the problem. The causes of high premiums are not the 
result of medical malpractice lawsuits or increasing payouts. In fact, 
a recent report commissioned by the Center for Justice and Democracy 
clearly demonstrates that over the last 5 years, there has been little 
to no increase in malpractice payouts.
  Despite this, there have been humongous increases in malpractice 
insurance premiums. In fact, the report found that many of the leading 
malpractice insurers have substantially increased their premiums while 
decreasing their actual claims payments and reducing the amount they 
project to payout in the future, but significantly increasing their 
surplus or profits.
  Let me just give you a few examples from the report so everyone 
understands:
  1. In fact, in 2004 alone, the leading medical malpractice insurers 
took in about three times as much in premiums as they paid out in 
claims.
  2. And, in 2004, the 15 leading malpractice carriers, taken in sum, 
increased their premiums by 9.3%, yet their losses fell by 21.1%.
  3. Between 2000 and 2004, the premiums of the 15 leading medical 
malpractice insurers have more than doubled, yet the amount they paid 
out in claims during this same period remained constant. In fact, 
during this time frame, gross premiums increased 134.5% while gross 
payouts increased by 9.6%.
  4. Another way to put it: between 2000 and 2004, the increase in 
premiums collected by the 15 leading medical malpractice insurers on a 
net basis was twenty-one times as great as the increase in payments on 
a net basis.
  So not allowing for Democratic alternatives which sought to address 
the full scope of the malpractice problem, and provide a real remedy 
has precluded us from having a bill on the floor that merits our vote.
  My colleagues please don't disrespect patients and their families and 
their pain and suffering; and do not play the hard working doctors.
  Vote no on H.R. 5 and then let's pass a bill that truly addresses the 
crisis that many factors--like lack of insurance, language barriers, 
limited providers of color, inadequate funding for prevention and 
malpractice insurance coverage is creating.
  Mr. SENSENBRENNER. Mr. Speaker, I wish to include in the 
Congressional Record an explanation for my decision not to participate 
in legislative consideration of H.R. 5, the ``Help Efficient, 
Accessible, Low-Cost, Timely Healthcare (`HEALTH') Act of 2005.''
  House Rule III(1) states:

       Every Member . . . shall vote on each question put, unless 
     he has a direct personal or pecuniary interest in the event 
     of such question.

  House precedents establish that ``where the subject matter before the 
House affects a class rather than individuals, the personal interest of 
Members who belong to the class is not such as to disqualify them from 
voting.''
  As a result, House precedent has held that a Member's ownership of 
common

[[Page H6869]]

stock in a corporation, ``was not, under House precedents, sufficient 
to disqualify him from voting on'' legislation that benefitted the 
corporation in which that Member held stock.
  I currently own shares in at least two corporations that may benefit 
from the enactment of H.R. 5. Shares of these corporations are 
generally held, and do not represent ``uniquely-held'' financial 
interests. As a result, my participation in legislative consideration 
of H.R. 5 would not appear to violate current House Rules and 
established precedent. However, as in all matters susceptible to 
subjective examination, there are no bright line rules to determine 
whether a Member should not participate in legislation that may benefit 
that Member in a personal or financial manner.
  In common parlance, the term ``conflict of interest'' is subject to 
various interpretations. However, the House Ethics Manual states that 
this term ``is limited in meaning; it denotes a situation in which an 
official's conduct of his office conflicts with his private economic 
affairs.''
  The House Committee on Standards of Official Conduct has admonished 
all Members ``to avoid situations in which even an inference might be 
drawn suggesting improper action.''
  The Committee on Standards and Ethics has also endorsed the principle 
that ``each individual Member has the responsibility of deciding for 
himself whether his personal interest in pending legislation requires 
that he abstain from voting.'' I have concluded that my holdings in at 
least two corporations that may benefit if H.R. 5 is enacted into law, 
coupled with my Chairmanship of the Committee of primary jurisdiction 
over this legislation, raise legitimate questions concerning whether my 
participation in this legislation conflicts with my private economic 
affairs.
  While this may be a gray area, questions concerning whether my 
participation in legislation may raise the appearance of a conflict of 
interest must be subject to no doubt. As a result, I wish to forcefully 
dispel any appearance of such a conflict by recusing myself from 
legislative consideration of H.R. 5.
  Participation in the political process, particularly voting on 
legislation, is central to maintaining the official responsibilities to 
which Members of Congress are sworn. In all of my public life, I have 
striven to energetically and conscientiously discharge my official 
responsibilities while preserving the public trust and confidence I 
have been elected to uphold.
  While House rules may provide an important benchmark for determining 
the propriety of a Member's decision to vote on legislation before the 
House, nothing can substitute for a Member's conscience. For this 
reason, I hereby recuse myself from participation in legislative 
consideration of H.R. 5 during the 109th Congress.
  Mr. LIPINSKI. Mr. Speaker, I rise today in opposition to the closed 
rule on H.R. 5, the HEALTH Act. There is a need for medical malpractice 
reform, and the amendments offered in the Rules Committee could have 
made this a good bill for improving patient access and care. I am 
deeply disappointed that the Committee refused consideration of all the 
amendments, including mine that would have reduced the number of 
malpractice cases in court by facilitating the use of mediation. 
Mediation has proven to be a cost-effective and timely way to settle 
malpractice cases. Rush Medical Center in Chicago now has one-third of 
its cases go to mediation instead of litigation. Other hospitals around 
the country have begun to implement similar programs, but have been 
hindered by the lack of mediators with a medical background. My 
amendment would have provided grants to set up mediation programs and 
to train medical malpractice mediators. This would have done exactly 
what this bill purports to do, reduce the burden of litigation. We 
should have an opportunity to debate this and all the amendments 
proposed, so I urge my colleagues to vote against this Rule.
  Mr. COSTELLO. Mr. Speaker, I rise today in opposition to the rule and 
to the bill, H.R. 5. Republicans on the Rules Committee blocked the 
consideration of several amendments offered by me and my colleagues to 
this bill. This body should have the right to openly discuss and to 
consider each of these amendments.
  One of the amendments blocked was one I offered that is modeled after 
the state of California's 1975 reform laws (Proposition 103) which has 
been successful in leveling off insurance rates.
  My amendment would require the insurance commissioner or a similar 
public body in each respective State to hold public hearings when an 
insurer proposes a rate increase in premiums for medical malpractice 
liability insurance that exceed 15 percent. If a State has a lower 
insurance rate than 15 percent, this legislation would not apply.
  Mr. Speaker, I believe that the issue of rising medical malpractice 
insurance premiums is best handled at the state level, as 29 states, 
including Illinois, have passed legislation to address this problem.
  However, if Congress is going to consider legislation, it should be 
comprehensive. H.R. 5 is not a balanced piece of legislation. Earlier 
this year, I supported the Class Action Fairness bill because it was a 
product of bipartisan input and compromise. The bill we are considering 
today does not contain input from Democrats and fails to take a 
comprehensive approach to the problem of rising medical malpractice 
rates.
  H.R. 5 is a caps only bill. Numerous studies show that caps alone do 
not lower insurance rates. According to the Medical Liability Monitor, 
states with caps on damages have average insurance premiums that are 
9.8% higher than insurance premiums in states without caps on damages.
  Under H.R. 5 insurance carriers can still raise rates any amount and 
at any time, without justifying their rate increases. A bill that only 
places caps on non-economic and punitive damages but does not provide 
insurance reform will not solve our medical malpractice crisis today.
  The insurance industry has been very clear: passing caps on non-
economic damages will not result in reduced medical practice premiums. 
A recent study by the National Council of Insurance Commissioners 
revealed that medical malpractice carriers in Illinois raised their 
rates 13% last year, despite the fact that their direct losses only 
increased 3%.
  Serious reform of the insurance industry must be part of any attempt 
to bring the cost of medical malpractice premiums down.
  The material previously referred to by Mr. Hastings of Florida is as 
follows:

     Previous Question for H. Res. 385 H.R. 5--Medical Malpractice 
                            (``HEALTH'' Act)

       In the resolution strike ``and (2)'' and insert the 
     following
       ``(2) the amendment printed in Section 2 of this resolution 
     if offered by Representative Emanuel of Illinois or 
     Representative Berry of Arkansas or a designee, which shall 
     be in order without intervention of any point of order or 
     demand for division of the question, shall be considered as 
     read, and shall be separately debatable for 60 minutes 
     equally divided and controlled by the proponent and an 
     opponent; and (3)''
       At the end of the resolution add the following new section:
       ``Sec. 3. The amendment by Representative Emanuel of 
     Illinois and Representative Berry of Arkansas referred to in 
     Section 1 is as follows:
       ``Strike section 7(c)''.

  Mr. GINGREY. Mr. Speaker, I yield back the balance of my time, and I 
move the previous question on the resolution.
  The SPEAKER pro tempore (Mr. Bass). The question is on ordering the 
previous question.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. HASTINGS of Florida. Mr. Speaker, on that I demand the yeas and 
nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this question will be postponed.

                          ____________________