[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.

                              {time}  2145

  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.

                              {time}  2200

  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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