[Congressional Record Volume 152, Number 52 (Thursday, May 4, 2006)]
[Senate]
[Pages S4037-S4039]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          MEDICAL MALPRACTICE

  Mr. LEAHY. Mr. President, it is interesting to hear the statistics 
being tossed around. I am sure the distinguished Senator did not mean 
by his chart to suggest somehow bribes have been offered to people in 
how they vote.

[[Page S4038]]

  Mr. President, we have States without caps on medical malpractice 
recoveries. They have 14 percent more practicing physicians than those 
with caps. We hear about the increasingly burdensome medical 
malpractice premiums and, indeed, they are. Health care providers pay 
onerous amounts to be insured. That is why I have introduced a bill 
directed specifically toward medical malpractice insurance reform 
because, after all, there is no correlation between malpractice claims 
and rising insurance premiums. Between 2000 and 2004, insurers 
increased premiums 134 percent, even though payments remained flat.
  They say this legislation drastically reduces insurance rates. Of 
course, the American Insurance Association has said we have not 
promised price reductions for tort reform. They have been quoted as 
saying: We wouldn't tell you or anyone the reason to pass tort reform 
would be to reduce insurance rates. In fact, a majority of States that 
have enacted caps have seen no reductions. In fact, on average, doctors 
in States with caps pay more for insurance than they do in States 
without caps.
  The fact is, there is one place that makes money. Claims go down and 
insurance premiums go up. It is like the rising gas prices and the 
record oil company profits. Maybe we ought to be asking medical 
malpractice insurers exactly why their premiums are so exorbitant? If 
it is not because they are paying an increasing amount of claims. They 
are not doing that. Rates are going up much faster than any claims. It 
could be a soft stock market, bad investments, or greed. That is what 
we ought to ask about. In my State, without caps, we increased the 
number of doctors. So don't use this argument that somehow in rural 
areas, in rural States, we are going to lose doctors. We are gaining 
doctors. We should ask the insurance companies why their rates go up, 
even though the payments are flat.

  We should also remember that America's courts belong to the American 
people, not to the special interests of the insurance companies. These 
bills are bad public policy. They are ill-timed.
  We ought to be debating the priorities of the American people, not 
debating ways to make greater profits for the insurance companies. We 
ought to talk about energy policy and skyrocketing gas prices. Wouldn't 
it be good to have a real debate on the fiasco in Iraq today, a real 
debate about what has gone wrong in the war in Iraq? That could take a 
couple of months just to list them. A lot has gone wrong since the 
President announced: ``Mission Accomplished.''
  We ought to be talking about the comprehensive immigration bill or 
stem cell research. What about the horrific genocide in Darfur?
  So I am disappointed that the majority leader has decided instead 
that the Senate's and the public's valuable time should be taken up 
with these bills. I am also disappointed that he has decided to bypass 
any consideration of these bills. Instead, the insurance companies, and 
probably some of the large medical companies, have a special interest 
bill that benefits the insurance companies at the expense of patients 
with legitimate injuries coming straight to the floor.
  These are real people. I will give you one example in my own State of 
Vermont. On April 7, 2000, Diana Levine had a severe migraine headache. 
She went to a health center. Ms. Levine was a musician. She received a 
painkiller, along with an injection of another sedative. That caused 
complications and she had two amputation surgeries of her left arm. A 
musician. She sued the corporate giant, Wyeth, for improper guidelines 
on the sedative because it didn't warn about these dangerous 
combinations. They knew about it, but they didn't warn anybody. She 
said:

       I never expected to sue anyone in my life. . . . Sometimes 
     it takes something like this to make it known when a drug is 
     not being used right.

  After a full trial, knowing that her career as a musician was gone, 
the jury said she deserved $2.4 million for past and future medical 
expenses and, of course, $5 million for the daily pain she is 
suffering. Most of that would have been cut out under this bill. That 
makes me think this bill is political and doesn't go to the root cause 
of medical malpractice.
  Let's not forget that medical errors happen to 100,000 people each 
year. One out of over 100 hospitalized patients suffers negligent care. 
Just turn on the news every night and we hear about it. More people die 
as a result of medical errors than automobile and workplace accidents 
combined. More die from that than automobile accidents and workplace 
accidents combined, but only 3 percent of them even file a claim. These 
statistics tell us there is not so much a malpractice lawsuit problem 
as a medical safety problem.
  I fail to see how arbitrarily limiting the rights of citizens 
addresses this serious problem, particularly because in many cases the 
judicial system is the only forum in which such an error is brought to 
light. Rather than looking for ways to limit our citizens' access to 
justice, we should look for ways in which we can encourage the medical 
community to strive for the highest standards in the delivery of its 
services. It is in our interest as citizens, and it is certainly in the 
interest of all the dedicated and caring people in the medical 
profession whose oath commands them to do no harm. My wife Marcelle 
dedicated her career to the care of others through nursing, and I know 
how seriously those in the medical profession take their solemn 
responsibilities. The best place for positive change to occur is from 
within the medical profession, not from within our courtrooms.
  The bills on the floor today favor the interests of insurance 
companies over patients, the interests of profit over sound health 
care, and they provide illusory promises of lower insurance rates for 
doctors, while addressing none of the underlying causes of medical 
malpractice. This is not the fix that is needed.

  We hear numerous complaints from politicians about the harm 
malpractice lawsuits cause to patient access and the medical 
profession. We hear claims about doctors practicing defensive medicine 
at the expense of innovation and aggressive treatment. We hear claims 
about doctors fleeing communities. We hear claims about the reluctance 
of our young people to enter the medical profession. We hear claims 
about pregnant women who cannot find obstetricians to provide care 
throughout pregnancy and birth. There might be some merit to this 
legislation if these claims we routinely hear were true. They are not.
  The myths associated with medical malpractice lawsuits have virtually 
all been discredited. Two of the primary arguments in favor of capping 
noneconomic damages are lowering insurance premiums and preventing 
doctors from leaving their State or their profession. The available 
data suggests that these arguments are unfounded.
  In my home State of Vermont, the most recent data show that the 
number of physicians practicing in the State has risen steadily from 
1,918 doctors in 1996, to 2,589 doctors in 2004. The number of OB-GYNs 
in Vermont is also higher today than it was in 2000. Today Vermont 
residents benefit from 113 OB-GYNs, compared with 91 in 2000.
  This trend exists nationally as well: The number of physicians 
nationally has risen between 1996 and 2004. We also now have more 
physicians under the age of 35 today than we did in 1996. The number of 
doctors per capita in this country has been steadily increasing since 
1965. It is hard to understand how these trends can be characterized as 
the loss of people from the medical profession. There is also no 
correlation between a State damages cap and the number of doctors 
practicing in the State. Nationally, States without caps have 14 
percent more practicing physicians.
  As we consider the majority leader's bills, I urge other Senators to 
help expose the myths associated with the legislation we address today. 
In fairness to the American people, we should be debating the facts, 
not the myths. If we acknowledge that the real problem is medical 
malpractice and the injuries and deaths that result, and not the 
lawsuits that seek to remedy these harms, I know we can go a long way 
to helping the medical profession work from within to assure that 
doctors meet the highest possible standards and strive to prevent 
medical errors. After all, those in the medical profession are in the 
best position to understand what changes must occur, and

[[Page S4039]]

how best to make sure that needed changes occur. As an example of this 
I want to highlight the efforts of anesthesiologists, who accomplished 
a nearly sevenfold reduction in anesthesia-related errors through 
cooperative changes to their systems and practices. Not surprisingly, 
when anesthesia-related errors decreased, so did insurance premiums. 
This should be our model of how to effectively address medical 
malpractice. If we work together, between needed reforms in the 
insurance industry, and by supporting medical professionals in 
improving the critical work they do, I know we can tackle this problem 
effectively.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, first of all, I thank my colleague and 
friend from Vermont for his excellent statement and comments. I look 
forward to joining with him on the debate of that issue when we have a 
chance on Monday and Tuesday next. I share the disappointment of the 
Senator from Vermont that we will not have an opportunity to address 
the stem cell issue on the floor of the Senate, which can offer such 
extraordinary hope to so many families in this country.
  We are in the life science century. We have seen this enormous 
progress that has been made with the mapping of the human genome, with 
imaging, nanotechnology--breathtaking advances--and stem cell research 
offers a very similar kind of opportunity. We have legislation that is 
on the calendar that was approved in a bipartisan way in the House of 
Representatives, and it has been on the calendar now for about a year. 
I think most of us were heartened when we heard our majority leader 
indicate his general support--a change in position--his general support 
for the items which are in the House bill that is on the calendar now 
before the Senate. Evidently, though, we will not have an opportunity 
next week to consider that stem cell bill.
  When I think of the stem cell legislation, I think of the 
possibilities of hope for families who are facing Alzheimer's disease 
or cancer, Parkinson's disease, diabetes because the possibilities in 
research are virtually unlimited. There are no assurances of the 
outcome, no absolute assurance that we are going to come up with cures, 
but for those who are on the cutting edge of basic and applied research 
in the science area or in the health area believe that this stem cell 
research offers enormous possibilities. I wish that had been included 
in the agenda for next week's discussion about health care, but it has 
not been.

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