[Congressional Record Volume 151, Number 129 (Thursday, October 6, 2005)]
[House]
[Pages H8714-H8720]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
A CRISIS IN THE COURTS OF AMERICA
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 4, 2005, the gentleman from Texas (Mr. Carter) is recognized
for 60 minutes as the designee of the majority leader.
Mr. CARTER. Madam Speaker, I rise this evening to talk about an
ongoing crisis that is in this country, a crisis in the courts of
America. People are using the third branch of this government as an
abusive form of receiving money from the court system, in many
instances just because they file a lawsuit. People are using the courts
of America to intimidate others out of their constitutional rights
because of the expense of litigation. Most importantly, and what I rise
today for, they are driving the medical profession into the ground.
Madam Speaker, I have spent 21 years of my life working with fine
lawyers in a courtroom. I have seen the courtroom and how things work
in the courtroom change substantially in that 21 years on the bench as
a trial judge in Texas.
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The courts were designed for people to seek recourse when they were
damaged. The courts were designed to grant fairness to all parties
involved. The courts were not designed to use the economic expense of
litigation to force people to settle lawsuits or to force people to pay
money. They were designed for a fair presentation of the evidence and a
fair decision to be rendered by the trier of facts and the trier of the
law.
Yet, today, in modern society, we see in every area courts being used
to try to force someone to do something contrary to their best
interests, to pay when, in reality, the only reason they are paying is
because, quite frankly, it is cheaper than fighting the litigation,
cheaper for insurance claims to be settled, because it is easier to
settle an accident than actually stand up for what is right. We see
this, and if the spotlight is placed upon this, we see what it is doing
to our medical profession.
Madam Speaker, we love to all sit around and reminisce about the old
country doctor who would actually make house calls. The doctor that
would make a house call with a little black bag today probably ought to
be seriously examined for being crazy, because if all he brings is the
resources of that bag to make that house call, surely there is a lawyer
some place that is going to sue him for something because he said he
did not do the right thing. So what is happening to our legal
profession?
In many instances, doctors will tell us, unnecessary tests are being
required of our patients. The cost of our medical care in this country
is skyrocketing not because maybe that doctor thinks he may know what
is wrong with that patient, but he also wants to make sure that he has
that MRI and that CAT scan on record to confirm what his diagnosis is.
Why? Because of the trial lawyers standing outside the door, ready to
sue him for the slightest thing because he thinks he can prove that
that test was not right.
Madam Speaker, we have women in south Texas that cannot find a baby
doctor to deliver their baby and cannot find a pediatrician to care for
their baby when it is born. Patients in south Texas cannot find a
neurologist or a neurosurgeon when someone has been in a car wreck and
has a brain injury and desperately needs someone that can treat them,
either a neurologist or a neurosurgeon. There are people that are being
hauled all the way from the Rio Grande Valley, Brownsville, and
McAllen, all the way to San Antonio to try to find a neurologist that
will take care of a serious, serious case.
Madam Speaker, this is a crisis in America. I am just looking at
Texas. But this is not just new to Texas; this is all over the country.
There are multiple States that are in crisis when it comes to medical
liability. Tonight, I am up here and I am joined by many of my
colleagues to talk about H.R. 5, the Help Efficient, Assessible, Low-
cost, Timely Health Care Act of 2005 entitled HEALTH. This is sponsored
by my colleague, the gentleman from Georgia (Mr. Gingrey), a medical
doctor and a good friend from the State of Georgia, and I am sure that
he will join us here in just a little while. Right now, he is with the
Committee on Rules, and that is why he is not the first one to talk,
because he is the doctor.
But he will tell us, as I will tell my colleagues and my colleagues
will tell us, this crisis in America is causing skyrocketing medical
costs, unfair jury verdicts and judgments against the doctors of this
country and causing doctors to say, I am not doing this anymore.
Madam Speaker, when we drive out the people who are there to protect
our lives, when we drive them away with these frivolous and sometimes
onerous, most of the time onerous lawsuits, we are driving away people
that are there to save our lives. Nobody asks when they are dragged
into the emergency room after a terrible car wreck where the jaws of
life have pried them out of the car, they do not ask, where is my
lawyer, they are looking for a doctor. Yet, I have talked personally
with emergency room surgeons, and they tell me that their profession is
getting thinner and thinner and thinner every day. In fact, most of the
people that still are willing to go and be emergency
[[Page H8715]]
room surgeons are the guys who love to live on the edge with that
adrenaline rush, because they certainly are not doing it because they
feel safe. They deal constantly with the fear of a lawsuit because they
did the right thing to save a life.
Doctors deliver babies. That is what we all expect. We want a doctor
to be there with our wonderful spouse when they give us the gift of a
child. Why do we want that doctor there? We want that doctor there to
make sure that child is healthy and to make sure that birth is as
successful as possible and make sure mama comes home with the baby.
Yet, with the amount of lawsuits that are attacking our OBGYNs in
America, more and more of our outstanding doctors are finding something
else to do.
Madam Speaker, this is a crisis in America. The gentleman from
Georgia (Mr. Gingrey), the sponsor of H.R. 5, I believe offers us the
solution to that crisis. I see that he has joined us, and I am going to
yield to him to talk to us about this issue.
Mr. GINGREY. Madam Speaker, I thank the gentleman from Texas (Judge
Carter), my good friend, for yielding. This is a hugely important issue
in this Lawsuit Abuse Prevention Week when we are focusing on not just
medical malpractice suits but a number of other things like frivolous
lawsuits, class action abuse. This Republican majority has dealt with
these issues time and time again. This House of Representatives
actually, in a bipartisan fashion, Madam Speaker, I am pleased to say,
has passed this particular bill, H.R. 5, about four times since myself
and my colleagues. And we are all in the same class of the 108th
Congress; I think we passed it twice. It was passed in the 107th and
now once again in the 109th. I think that totals five times, this issue
of tort reform.
As a physician Member, Madam Speaker, I am often I guess considered
someone who is anti-attorney, who has a bias against attorneys. Nothing
could be further from the truth. In fact, in my immediate family, I
have two attorneys; my daughter, who is a prosecutor in State court in
Cobb County; and my brother, who spent his lifetime as a practicing
attorney doing real estate law; and my good friend, the gentleman from
Texas (Judge Carter) who was a good lawyer and an even better judge as
a superior court judge in Texas. I have great respect for the legal
profession. Rather, Madam Speaker, this is about leveling the playing
field and making sure that every voice on each side of the issue is
fair and balanced. That is all it is, pure and simple. I think my
colleagues would agree with me on that.
I am joined by some of my doctor friends here tonight along with the
gentleman from Texas (Judge Carter), and we have all experienced
situations where maybe one of our colleagues in the health care
profession is being sued for practicing below the standard of care, and
in those situations where we know that they practiced below the
standard of care or the hospital, through negligence, has resulted in
an injury to a patient, we are right in there pulling for the
plaintiffs. There is no question about that. I think it is very
important, as we discuss this during this hour, for our colleagues,
Madam Speaker, to understand that. We are trying to bring balance to a
situation that right now is way out of kilter, totally unbalanced, and
it is to the detriment, not so much to the health care providers, but
to the patients who need, who desperately need the access, as Judge
Carter was talking about at the outset. And physicians who are involved
in high-risk specialties, emergency room doctors, orthopedic surgeons
like my colleague, the gentleman from Cobb County, Georgia, (Dr. Price)
who we will hear from in just a few minutes, and the gentleman from
Pennsylvania (Dr. Murphy) who deals with mental health, which is such a
vital issue, so important to the health care of individuals, you are in
a situation where if you do not have these doctors available,
particularly in emergency situations, people suffer, people get injured
and people die. So that is really what it is all about.
I appreciate so much being with my colleagues. At this point, I yield
back to the gentleman from Texas (Judge Carter) and hope to participate
later in the hour as we discuss this critically important issue during
this time this evening.
Mr. CARTER. Madam Speaker, I yield to the gentleman from Pennsylvania
(Dr. Murphy).
Mr. MURPHY. Madam Speaker, I thank the gentleman for yielding, and I
thank the gentleman from Georgia (Dr. Gingrey) as well.
We are talking about medical liability reform tonight, and my
background as a psychologist is one that I think it is incredibly
important to support these issues, because in my career, I have so
often dealt with the problems that have stemmed from difficulty with
accessing medical care. Let me tell my colleagues two stories.
One is a story of a place in rural Pennsylvania where a woman went
into premature labor. Now, because of the dearth of OBGYNs in her town,
they drove in their car about an hour and a half to a nearby hospital,
taking considerable risk to get up there. The baby was born premature.
It would have been best if she would have had the care in a local
hospital, but she did not have that. And children who are born
premature oftentimes are at higher risk for several developmental
disabilities. It is a sad thing to think that children sometimes cannot
get that immediate access to care, because those first few minutes of
care for a newborn baby are so critically important when they are
premature, high-risk, low birth weight, maybe the mother was eclamptic,
pre-eclamptic, and those first few minutes can mean the difference
between a child who has some severe problems, a child who has mild
problems or a child who has no problems at all. As I would do
developmental follow-up with so many of these infants, it is of
increasing concern to me that when there is not sufficient medical care
there nearby with OBGYNs, or anyone else for that matter, you cannot
get the patient the care they need then, and that baby cannot be
treated by a lawsuit. That does not make up for what occurred because a
physician was not around and the physician is not around because in
Pennsylvania, like so many other States, about 20 other States listed
at risk for this, has seen such a decrease in physicians.
Another story: A hospital where several cases have occurred where
people have gone into that hospital suffering from a stroke, but there
were no neurosurgeons on call at that hospital because of the high
medical liability costs for these neurosurgeons in that State. So
patients had a certain kind of clotting that needed to be broken with a
line through the femoral artery or a catheter, as it were, into the
carotid, and these patients then had to be life lifted to another
hospital. Again, those minutes when someone is having a stroke are
critical and can mean the difference between life and death.
In a number of those cases, sadly, those patients died. It was not
from lack of good health care that was available; it just was not
available at that hospital because the doctors were no longer able to
practice in that State or in that region.
Bills like H.R. 5 are extremely important, and we have passed it a
couple of times in the House, and we have to continue that. But what
happens is that, in so many States, we are far from being able to do
that on our own. Pennsylvania, for example, has a constitutional
provision there that would query that State even if it started moving
forward a number of years to take care of that.
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But ultimately our concern has to be for better patient care. And
some look upon this and say are we looking at caps on punitive damages
or changes of venue and other sorts of legal issues here that somehow
are going to protect the physician who is not practicing well. As one
trial attorney I heard say, the trouble with medical malpractice is
medical malpractice.
Certainly, none of us want to see situations taking place where we
are protecting problems that occur. All of us, whatever branch of
health care we are in, are dedicated to making sure patients have the
best care. But when you cannot get a doctor, you cannot get the care,
good, bad or otherwise. And so the issue is how we make sure we have
the availability of that health care.
Listen to a couple of these points: one in three medical residents in
my home State of Pennsylvania stated in a
[[Page H8716]]
survey they would leave the State after completing their medical
residency because of the lack of affordable malpractice or medical
liability insurance. In addition, 71 percent of residency program
directors reported a decrease in retention of medical residents in
Pennsylvania. As a result, more and more doctors are practicing
defensive medicine. And only about 4 percent of our physicians in key
areas, such as obstetrics, gynecology, orthopedic surgery,
neurosurgery, only about 4 percent of physicians in Pennsylvania are
under age 35. As others doctors retire, we are going to continue to
have this; and that is why we have a crisis, no longer just brewing,
but really some significant shortages.
Let me mention one or two things that we are working on as part of
this, because all of us in the health care field and all of us in the
House have to be focused also on patient safety. Some of the issues
before us are also what Secretary Leavitt and the President are pushing
and that is for reform for how we keep track of medical records.
Electronic medical records is a system whereby patients' charts are
kept in secure and confidential electronic records and computer systems
so physicians can access them. And at the moment they are reviewing
these charts, it is no longer a matter of trying to find the pages in
the charts which may be scattered in different places, no longer a
situation where lab results never quite made it, no longer a situation
where the doctor has to call for repeat tests because he cannot find
the x-ray or the CT scan or the MRI.
It is accessible to him or her, and thereby not only does it save
money because tests do not have to be repeated, but it can call to the
attention of the physician significant findings. One study that was
published last year found about 14 percent of medical records are
missing some data. For example, a physician may have called for lab
tests, never got in the chart, perhaps the patient did not follow up
and have it done. And a physician said in many of those cases it would
change their diagnosis and what they would call for for treatment of
those patients.
Does it save money? You bet. A Rand study report published a couple
of weeks ago said if we move toward electronic medical records and
electronic prescribing, we could save health care in America about $160
billion a year. And with the improved efficiency and with the reduction
in absenteeism in the workplace, those numbers could go up to over $300
billion a year.
Now, while we are facing an era of looking at ever-increasing health
care costs, where small businesses cannot afford them, or individuals
and families are wondering if they are going to be able to cover those
health care costs, by doing such things as electric medical records and
prescribing, we can actually provide the venue whereby physicians,
everybody in the health care field, could keep better track of what is
happening.
One of the troubles is with the fear of liability, strange as it is,
many times hospitals are concerned if they start gathering more of this
data to show them where the problems are, what they should begin to
review, how they should change, for example, infection rates, et
cetera, they are concerned that someone is going to come in and grab
those records and start suing everybody before the hospital can start
to make some changes.
We have got to present a situation here where physicians and nurses
and hospitals and administrators and patients are all working together
towards patient safety. But to that end we not only need the patient
safety issues; we also need the physicians practicing.
And I am joined tonight by another one of our colleagues, the
gentleman from Georgia (Mr. Price), who is also going to be able to
speak from his own experience on these issues and how it is critically
important. So I would now like to yield as much time as he may consume,
if I may, to the gentleman from Georgia (Mr. Price).
Mr. PRICE of Georgia. Madam Speaker, I appreciate the opportunity to
join my colleagues tonight on an issue that is very important. And I
found many of your comments so apt and so very pertinent.
I am an orthopedic surgeon, at least I was before I came to Congress;
and I have a number of friends in the orthopedic surgery field who
practice in Pennsylvania. They are clamoring for young orthopedic
surgeons to come to Pennsylvania. My understanding is that there are no
orthopedic surgeons under the age of 35 in Pennsylvania. None. And if
that is the case, as it is, I think, in that specialty and in others,
this is a crisis that we have that will take a generation or more to
solve, unless we act now. So I thank the gentleman for the information
that he gave.
As I mentioned, I am an orthopedic surgeon, and I am also a third-
generation physician. So as the gentleman from Texas (Mr. Carter)
mentioned, the old time country doctor, well, that old time country
doctor was my grandfather. Some of my earliest memories are of going
with my grandfather on his rounds on the weekend. And rounds for him
did not mean going to the hospital and seeing patients. They meant
going to patients' homes. And I will never forget the wonder and the
faith and really the love that was communicated to him as he visited so
many of those patients' homes. My grandfather never thought about
malpractice insurance or liability insurance. They never dreamed of it.
Never had to.
My father practiced for a number of years and saw so many changes,
and I saw him lament those changes over a period of time. And I guess
now the question is not as physicians across our Nation, it really is
not whether they will be sued, it is when. It is when they will be
sued. And when you think about that as a matter of policy in our
society now, when will physicians be sued, a physician being sued, and
you think about that man or that woman who is doing their doggonedest
just to take care of people, and you think about what they have to deal
with every single day, when they are thinking about the next time that
they will be sued, or if they will be sued or when they will be sued,
it changes how they relate to patients. It changes how they relate to
their job. It changes how they relate to their commitment to the work
that they do.
And so we have a situation that must be addressed. And it is
imperative. The citizens of our country know that it has got to be
addressed. Here is some polling that was done by Harris earlier this
year. It says 78 percent of Americans express concern that the
skyrocketing medical liability costs could limit their ability to get
the care when they need it. And I think, as my colleagues have said,
the question really is not the cost of malpractice or the cost of
liability insurance to the doctors. The question is the access to
quality care for patients. That is the consequence of all this. It is
not that there is more money, although it is important that there is
more money going into something that really is not resulting in any
better care for anybody.
But the real question is we are limiting the access of quality care
for patients across this Nation. You say, well how does that happen?
Well, I want to share with you a couple of examples, as we all have. My
good friend from Georgia was an OB-GYN doctor for years and years, and
delivered, I think, 5,000 or more babies. And right now we have more
counties in the State of Georgia and more counties, frankly, in the
Nation that have no coverage by an OB doctor, no coverage to deliver
babies, greater in more counties now than we had 10 years ago.
So we are going in the wrong direction. And you say well, now why is
that? Did they forget how to deliver babies? Well, certainly not. That
is not the answer. The answer is that OB doctors, in the field of OB,
delivering a baby is defined as a high-risk procedure. Delivering a
normal baby is defined, for insurance purposes, as a high-risk
procedure. And there are more and more, because of the liability
crisis, there are more and more OB doctors who no longer do high-risk
procedures. Therefore, they no longer deliver babies, which is
something that those men and women trained to do. That was their craft.
That was their calling, to deliver and care for women during their
pregnancy and to deliver those babies. So those women who live in those
counties now where there are no OB doctors to deliver babies do not
have the access to care that they need or that they had just a few
short years ago.
In the field of radiology, there are some things that we do not even
know as patients that we are missing or that
[[Page H8717]]
we are losing. In the field of radiology, there are a number of
instances, the issue of mammograms is important because there are about
40 percent of the radiologists in this Nation who no longer read
mammograms, no longer read them.
And so you ask the question, well, did they forget how to read them?
No, they did not forget how to read them. They were taught in their
training, certainly, how to read mammograms and do as well as anybody
could do, given the limits of the test, given the limits the mammogram,
which is about, in the best of hands, 90 percent. The best radiologist
reads a mammogram correctly 90 percent of the time. That is not because
he or she does not know how to read them. That is because that is the
limit of the test. That is the limit of technology that we have. And so
if a radiologist reads 40 mammograms in a given day, 40 mammograms in a
given day, it is likely that he or she will not have the right
interpretation on four of them.
Well, I do not know anybody that you can ask to expose themselves to
liability on 10 percent of the occasions of the work that they do and
expect them to continue to do that work. So the only answer for the
radiologists and the only answer for the radiologist and his or her
family is to not perform that procedure, not read that or interpret
that test. That means that women across this Nation no longer have the
kind of access to interpretation of mammograms as they did 10 years
ago. The same is true for pathologists and Pap smears. Same kind of
numbers.
I want to just give one more example and then yield back because many
of my colleagues have talked about it being a matter of life and death,
and it truly is. And I want to relate a story that highlights, I think,
the imperative for us solving this crisis and this challenge before us
because it is a matter of life and death.
People are dying because we have, as a national policy, a court
system, a legal system that does not allow individuals appropriate
access to quality patient care. And the example goes to the issue that
the gentleman from Pennsylvania (Mr. Murphy) and the gentleman from
Texas (Mr. Carter) talked about, and that is the issue of neurosurgery.
And it happens with other specialties, but with neurosurgeons,
individuals who take care of problems with the brain, that they are on
the front lines for some of those incredible crises in individual's
lives, when action is needed immediately. And if action does not occur
immediately, then there are severe consequences; and oftentimes the
consequence is loss of life.
There was an individual that came to a hospital in the metropolitan
Atlanta area, a young man in his young 40s and he had fallen and he had
hit his head and he knew that something was not just right and so he
drove himself to the hospital. And he arrived at the hospital, and
because of the liability crisis, there were no neurosurgeons on call,
which means that there are no neurosurgeons that the emergency room
physician could call in the event of an emergency or a crisis. They
would have to transfer those patients elsewhere.
Well, this patient, this gentleman came to the emergency room, was
seen by the emergency room physician, was appropriately diagnosed as
having what is called a subdural hematoma, which is a bleed within the
brain. It is a blood clot within the brain, and it can put pressure on
the brain and it can kill you. The treatment for it is relatively
simple. It is relatively simple to relieve that pressure, but it is
done by a neurosurgeon. In this hospital there were no neurosurgeons on
call, no neurosurgeons available; and so this individual, the patient,
had a relatively rapid decrease in his clinical status. He got very,
very sick and very ill and his life was threatened, and the emergency
room physician recognized that, but his only option was to put him in
an ambulance and get him to another hospital. And that patient died on
the way to the next hospital. That patient died because of our
liability crisis in this Nation, and that death will not show up in any
statistic anywhere as being a result of our current tort reform crisis,
our system of liability problems right now. Will not show up anywhere.
So access to care is being compromised. Quality of care is being
compromised. We have a real crisis. Seventy-eight percent of Americans
understand that. And what do they want done? Seventy-three percent of
Americans want their elected representatives in Washington to support
comprehensive medical liability reform. That is the take-home message,
that is the take-home message for our colleagues who have acted
responsibly here in the House over and over. It is the take-home
message for our friends on the Senate side to make certain that they
act on H.R. 5 and act soon, quickly, as rapidly as they can in order to
save lives and in order to ensure quality care.
With that, I thank the gentleman from Pennsylvania (Mr. Murphy) so
very much, the gentleman from Texas (Mr. Carter), the gentleman from
Georgia (Mr. Gingrey) for allowing me to participate in this discussion
tonight. We ought to stand up here every night and give this message
until this work gets done. Thank you so much.
Mr. MURPHY. Madam Speaker, I thank the gentleman for yielding back.
And before I yield back to the gentleman from Texas (Mr. Carter), I
just want to mention one other thing too because while we are talking
about these protections and hearing the tragic story that the gentleman
from Georgia (Mr. Price) mentioned, another bill that I put in, H.R.
1313, is one that would also help us with the uninsured and
underinsured. One of the issues the President has committed to putting
more funding in is community health centers, community health centers
where people pay a sliding fee scale supported by the local community
which provides more close access for people who are uninsured and
underinsured.
{time} 2215
We have situations there where physicians who were paid or hired by
these clinics are covered by the Federal Liability Act where they may
not go in front of a jury trial, but the judge will decide what
happened if there was a problem there.
The sad thing about it is if a physician, if a nurse or psychologist
or podiatrist or dentist wants to volunteer in those settings, they are
not covered. So it happens we have a huge shortage of health care
providers when at a time we could be expanding because many providers
would like to volunteer their time at community health centers.
A big example is the problems that just occurred down in the gulf
coast with the hurricanes. Many people wanted to volunteer at community
health centers, but if we do not provide some of these protections to
make sure they can provide excellent health care and be there, we will
not have enough.
So that is another area I certainly urge my colleagues to help us
pass. With that, there are many other issues to cover tonight.
Mr. CARTER. Madam Speaker, at this time we are joined by the
gentlewoman from Tennessee (Mrs. Blackburn), one of our wonderful
colleagues, a real asset to this House, and at this time I yield to the
gentlewoman from Tennessee (Mrs. Blackburn).
Mrs. BLACKBURN. Madam Speaker, I thank the gentleman from Texas for
yielding, and I thank him for organizing this hour tonight and for the
work he has put into this issue and how wonderful that our colleagues
here in this body and that the American people can hear from the
gentleman from Georgia (Mr. Price) and the gentleman from Pennsylvania
(Mr. Murphy) and the gentleman from Georgia (Mr. Gingrey) and the
gentleman from Texas (Mr. Carter) and hear how Members of this body,
Members who have served as a part of our legal and judicial system,
Members who are health care providers address this situation and
realize the need to address medical liability here in this country.
I think it is worthy, too, that we hear from consumers in this
debate, and being a health care consumer is something that is important
to me and important to so many of my constituents in Tennessee.
The gentleman from Georgia (Mr. Price) had mentioned the Harris poll,
and I think the results of this poll are so reflective of what we hear
from our constituents. Seventy-eight percent of the individuals polled
in the Harris poll talked about medical liability costs and expecting
Congress to do something to address that issue, 78 percent.
[[Page H8718]]
Seventy-three percent want us to make medical malpractice reform a top
issue for the U.S. House of Representatives, and they do that because
they see this as a freedom issue, a freedom for them to choose who they
want to be their doctor, who they want to take care of them, to have
access to the health care that they know is there and available, but
because of a litigious society and a legal system that many times is
out of control, is not available.
I will have to tell my colleagues I had a constituent in a town hall
meeting recently stop the town hall meeting when we got to this, stand
up and say, I have got something to say. He said I think when it comes
to lawyers suing doctors that we ought to have a law. He said, a doctor
cannot diagnose you; he cannot give you any medicine unless he has a
face-to-face meeting with you and checks you out. I think the same
thing ought to apply to these lawyers, that they thought to have a
face-to-face meeting and get to know these patients before that lawyer
can help that patient sue that doctor.
That is sometimes the frustration that we hear and good common sense
that people bring forward. This is what we are hearing from the
consumers of this Nation, from our citizens, from our constituents:
Address this because it is a freedom issue. It is a freedom issue for
physicians who want to practice the skill that they have been trained
to do. It is a freedom of access issue for our constituents.
Our constituents know that because of the liability crisis in this
great Nation that their hospital choices are limited; that their
physician choices are limited; that they are having to drive further
distances; that health care is not as available, especially in our
rural and underserved areas. I tell my colleagues, if that hospital is
60 miles away, many times it might as well be 600 miles away because it
is so difficult to get to.
So I really want to thank the leadership of this House. I want to
thank the gentleman from Georgia (Mr. Gingrey) and the gentleman from
Texas (Mr. Carter) and the gentleman from Pennsylvania (Mr. Murphy) and
the gentleman from Georgia (Mr. Price) for bringing their expertise to
bear in this body and bringing attention to the medical liability
crisis and to the need to move forward, complete addressing H.R. 5 and
taking a lead in the medical malpractice/medical liability issue.
Mr. CARTER. Madam Speaker, I thank the congresswoman for her
comments. The congresswoman is always willing to stand up for the
people in her district and talk about the people of her district, and
she never fails to tell us a story about the people in her district.
I want to tell my colleagues a couple of stories. I want to tell my
colleagues, in 21 years on the bench, I have seen an awful lot of
people who really have the attitude that suing people is kind of a
profession. I want to tell my colleague true stories, and these are
both absolutely true stories, but I am not going to use the people's
names because, as far as I know, they are both still alive. Hey, I do
not know, they might even be watching.
I have this one friend that I worked with many years ago down in the
Texas legislature when I was working for the staff down at the
legislature as a young lawyer. When I talk about this, I am a lawyer
and practiced law for about 12 years before I went on the bench. So I
am not picking on lawyers here.
But anyway, I used to go deer hunting with this fellow, called him
Joe, and about 10 years later, I ran into him kind of on the street. I
said, hey, Joe, what is going on; what are you doing? He said, oh, I
got me a job. I said, what do you do? He said, I am a suer. I said, a
what? I thought he works for the sewer, is that what he said? He said
no, I am a suer. I said, what in the world is a suer? He said, I get
out in my old car out on the highway, slam on my brakes and somebody
runs into the back of me; I slap a collar around my neck and I sue him.
I thought he was joking. I laughed. I thought that was a funny thing
for a fellow to say, until I ran into a guy that I knew who knew him
well, and he said, no, well, that is what he does. That is what he
does.
That is an attitude about our court system that has got to change,
and it has got to change. If necessary, we have to turn this world
around. That is why juries go crazy on these verdicts.
I will tell my colleagues another story.
Mr. GINGREY. Madam Speaker, if the gentleman would yield before he
starts that next story, the point the gentleman is making, and I think
it is a good one, is that in this current climate, it is easier to sue
your doctor than to see your doctor. Clearly, there is something wrong
with that picture.
Mr. CARTER. Absolutely, absolutely. You have to stand in line a lot
longer to see him than to sue him.
This other fellow, friend of mine, was a cigarette smoker, and this
was back many years ago. He was sitting there. He is a prolific reader.
He said, I have decided how I am going to retire as soon as I get out
of college. This was back when I was in college. I said, okay, John,
how are you going to retire? He said, well, I read an article that said
that the reason people smoke is because they were weaned too soon. He
said, so I smoke three packs of cigarettes a day. At that time
cigarettes cost about 35 cents a pack. He would get rich today on his
plan. He said, so I have added up how many packages of cigarettes I
think I am going to smoke in my lifetime, and I happen to know the
reason my mother weaned me soon is because her doctor gave her that
advice. He said, so I am going to sue my mother and my doctor because I
smoke. He said, and I think I can get $1 million out of that deal, by
the way, by my calculation.
That was a joke, but it does underlie how people view the court
systems and the lawsuits that people perceive that can be heard. Now we
are having people wanting to sue hamburger people for obesity. They are
wanting to sue schools for the vending machines that are in the
schools, and of course, they are suing the doctors for everything under
the sun. It is amazing. It is absolutely amazing.
I think what we will do here is let us just open this up to a general
discussion. Let us first let the gentleman from Georgia (Mr. Gingrey)
talk a little bit about this bill, and then the gentleman from
Pennsylvania (Mr. Murphy) wants to talk about some stuff.
Mr. GINGREY. Madam Speaker, I thank the gentleman for yielding, and
H.R. 5, the HEALTH Act of 2005, the same bill I said earlier in the
evening that the 107th, the 108th twice, and now the 109th have passed
in this body, and by the way, the gentleman from Georgia (Mr. Price),
the orthopedic surgeon, was talking earlier in his presentation and
showed a poster with the pretty alarming statistic that 78 percent of
the American public want us to do something about this crisis because
they want to be able rather than sue their doctor to see their doctor.
So those Members either in this body or the other body, on both sides
of the aisle, I say to my colleagues, if you are poll driven, this is a
no-brainer. This is a slam dunk winner of an issue, but even if the
statistics were not there, it is the right thing to do. It is the right
thing to do.
I would say to our colleagues in the other body, and I know that we
are not supposed to stand over here and criticize the other body, and I
will not do that, but I am awfully frustrated. I am terribly frustrated
that we have addressed this issue, this same bill, every provision
identical, for the last three Congresses, and yet, the other body, for
some reason, I will let my colleagues figure out why, but for some
reason, they are not addressing this issue. I would literally beg them
on behalf of my patients, our patients, to address this issue because
the statistics are clearly there, but it is the right thing to do.
Mr. MURPHY. Madam Speaker, if the gentleman would yield, I would like
to say to our colleagues, ask him to point out a couple of the issues
here. In particular, let me raise one that some people say. Does this
bill protect physicians who may perhaps be practicing out of their
realm of expertise or really doing wrong? Does this allow these
physicians to continue practicing?
Mr. GINGREY. Well, yes, and of course, the good judge certainly knows
this. I am sure he has seen it in his courtroom many times.
But the issue that is brought up a lot of times is, well, gosh, you
are about to take away an injured person's right to a redress of their
grievances; you are going to take away their day in court. That is
absolutely not true, and I am
[[Page H8719]]
so glad that the gentleman from Pennsylvania (Mr. Murphy) brought that
to our attention.
We are talking about in the major provision of this bill, which is
patterned, modeled after the California bill on tort reform in the late
1970s that stabilized the market and health care delivery system in
that State, is a cap on so-called pain and suffering awards or what we
call noneconomic, at some figure. In our bill, it is $250,000. Some
States have addressed that, and maybe it is $350,000.
In some instances, if there are more than one defendant in a case,
and I can tell my colleagues and I know my two colleagues here with me
this evening know this, but in almost every case there are multiple
defendants. So let us say the cap on noneconomic was $350,000, and you
had two or three defendants, then that award in itself, not counting
any economic damages, is over $1 million dollar.
Mr. MURPHY. Madam Speaker, if the gentleman would yield, a question
on that. Another question is what if the patient perhaps needs
rehabilitation costs, other medical care, would the gentleman point out
what this bill does if a person has ongoing medical needs as a
consequence? My understanding is it does not limit it and the patient
could get that ongoing care.
Mr. GINGREY. Madam Speaker, in fact, the gentleman from Texas (Mr.
Carter) may want to address that as to how a calculation is made in a
court of law in regard to making a patient whole, the so-called
economic awards based on income and loss of income.
Mr. CARTER. Add future medical care. By my understanding, this bill
does not limit any amount of medical care that has already been
expended nor any projected needs in medical care in the future
including, as you say, rehabilitation. Even mental health issues could
be addressed. If there is proof of the necessity, this can be carried
forward, and it is not limiting it.
It is that undefinable pain and suffering issue that can allow people
to break the bank at Monte Carlo with their judgment and get $1 billion
in that category.
{time} 2230
A billion dollars has been awarded in the past. Many times
multimillions of dollars have been awarded for pain and suffering. That
is the issue. That is the real issue in a nutshell.
Something needs to be mentioned here. We have had a lot of doctors
come in here, and some people watching might be thinking, of course,
these doctors are in the business; of course they want to do this.
Well, these doctors are not in the business. These doctors have left
the practice of medicine to come to Congress. And I think in many
instances they came to Congress because they had a voice that needed to
be heard on many issues, including this issue here.
I know I have become very close with many of the doctors, the
gentleman from Georgia (Mr. Gingrey) being the prime example, and they
are here because they care about multiple issues affecting their people
back home, and they are here to represent all of the people of their
State. They are no longer practicing physicians, so they are not doing
this because they are reaching into their pocketbooks, but they are
doing this because they know there is an abuse here that needs to be
rectified, and this stands for the Senate as well as the House. These
doctors do not practice their profession while they are serving in the
Congress.
Mr. GINGREY. If the gentleman will yield on that point. Clearly, as
the gentleman from Texas points out, there are those of us that you
have met here this evening who are health care professionals in our
former life but now are Members of Congress. And while we know of
individual anecdotal cases, maybe friends of ours who have got a
problem in regard to a frivolous lawsuit or something, what is more
important now is for us to have a view from 30,000 feet, as the
expression would go. Because as my colleague, the gentleman from Texas
(Mr. Carter) points out, we have an obligation and a duty to every
patient-citizen, 285 million in this country, and not just the 630,000
or so in our congressional districts or the doctors who we practiced
with when we were in that profession.
So my colleague is absolutely right. We have to look at that big
picture.
Mr. CARTER. If the gentleman will yield back for a moment. As we talk
about lawsuit abuse, right now we are talking about doctors, but you
can talk to your small businessman and ask him what he pays for the
insurance coverage because of liability factors that influence whatever
business he is in. He can be in the manufacturing business, he can be a
consultant, he can be an engineer, an architect, or a lawyer. There is
not a small businessman or a profession in America that is not facing
the possibility of frivolous lawsuits that can cause them major damage
in their business.
In fact, lawsuits have become a tool of competition in America today
in the business community. There are people and organizations who
actually try to drive a person out of business by filing frivolous
lawsuits against them, knowing it will cost them $25,000 to $50,000 to
defend them. They come back and they come back and they come back
again, and, thus, ultimately, the small businessman finally throws up
his hands and says, I cannot pay these attorneys fees any more. My
insurance people will not cover me any more, and so I am getting out of
this business. That is happening. It probably happened in this Nation
while I was talking tonight.
Fair redress is what we ought to have in the courts; fair disputes
settled between two parties. But using the court as a weapon to direct
people, whether it be in business, in politics, or in a profession, is
wrong.
Mr. MURPHY. If the gentleman will yield, there are a couple of points
that I want to draw upon the judge's knowledge and experience, as well
as that of the prime sponsor, the gentleman from Georgia (Mr. Gingrey).
There are two elements that are important to note. One, this bill
does not preempt, if States have their own caps on punitive damages, or
noneconomic damages. If States have higher or lower limits, out of
respect for the Tenth Amendment, States' rights, the Federal law would
not preempt that in any way, shape, or form, which is very important.
It also deals with the issue of joint and several liability, as I
understand. That is to say that sometimes what happens is someone will
go after what is known as the deep pockets. If a person is only a
couple percent responsible for something, perhaps the hospital would be
sued, even though the hospital had a very, very limited role in
something, or a doctor with a very limited role, maybe just another
surgeon who was asked to come in and check up on the patient but that
may be the person who has the most coverage, so they would sue that
individual. This really protects them and makes sure it is based upon
their actual responsibility in the case.
Am I right on that?
Mr. GINGREY. The gentleman from Pennsylvania is absolutely right. A
perfect example: Dr. Jones asks Dr. Smith to look in on her patient on
Sunday morning because she was going to be at church for a couple of
hours. Dr. Smith goes by the room, waves to the patient and says, how
are you doing? Is everything okay? Dr. Jones wanted me to look in on
you. The patient is fine, but in a subsequent time, a day or two, all
of a sudden the patient's health deteriorates.
Now, it has nothing to do with this doctor that was covering for 2
hours so his colleague could attend services at her church, yet that
doctor gets named along with the primary defendant, who may or may not
have had some significant responsibility or liability. But they are
judged just as culpable, as the gentleman from Pennsylvania points out,
and maybe more culpable, particularly if they happen to have the most
insurance or the deepest pockets. That is what he is referring to when
he says this joint and several liability.
This bill, as my colleague alleges, eliminates that provision and it
changes it to several liability, so that a person who maybe has some
minor participation in a case that goes south, where the patient does
not do well and is injured, and maybe there is some practice below the
standard of care, they are only culpable for a pro rata percentage of
that. And that is the way it should be, and not liable based on the
amount of malpractice coverage they have. And I really appreciate the
gentleman for bringing that up.
The other thing that I think is important to mention, is that a major
[[Page H8720]]
provision of this bill is something called collateral source
disclosure. The gentleman from Texas, just a few minutes ago, was
talking about economic awards, and if a person needs some additional
surgery or they need additional testing to make them whole because of
some injury, then there is compensation for that. As an example, lost
income, lost wages because an individual cannot work. But suppose that
plaintiff has a disability income policy that covers 90 percent of
their income for the rest of their life if they remain disabled.
Suppose that person has the best first dollar health insurance policy
that money can buy that covers any additional medical expense and
rehabilitation expense, such as durable medical equipment, power
wheelchairs, or whatever. Then that needs to be disclosed to the jury
so that we do not have this situation, Madam Speaker, of what I
consider double dipping.
It is a fairness issue. And as we said at the outset, that is all we
are talking about. We want to make sure that those that are injured get
justly compensated, but we do not want, as my colleague from Texas
said, this civil justice system to become a lottery in the minds of
individuals. Because that is where we get to the situation where indeed
it is easier to sue your doctor than to see your doctor. And I yield
back to the gentleman from Texas.
Mr. CARTER. Madam Speaker, I thank the gentleman for yielding and for
his comments. What we are talking about tonight is a climate that has
developed over a long period of time in our court system. It is a
climate which was never designed or anticipated by the founders of our
Nation; that our courts would become a weapon to batter someone into
submission; that our courts would become a tool of business; that our
courts would become a slot machine where individuals could pull the
handle and receive big benefits.
I love our court system, and I think our court system has the
potential to be fair, impartial, and to resolve grievances for every
American citizen. I think the court system works hard to see that it
does just that. But there are issues and attitudes of the American
people that we can only change by redirecting the thought pattern of
``I am going to get rich on this lawsuit,'' rather than the fairer
thought process of ``I am going to recover for how I was damaged and
how I suffered.'' That is what we are looking here for.
I think that every American is looking to his or her government to be
treated fairly. I think it is our responsibility here as Members of
Congress to try to do everything we can to make sure that all who
appear in the courts get fair justice.
So I thank the Chair for being willing to listen to us tonight and to
hear our discussion about lawsuit abuse and in particular medical
malpractice, and I urge my colleagues on both sides of the aisle to
stand up and be counted by casting their vote for fairness. I also urge
our colleagues in the other body to address this issue and cast their
vote for fairness in the American justice system. If we instigate and
create fairness, we will have done the will of the framers and the will
of the American people.
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