[Congressional Record Volume 152, Number 54 (Monday, May 8, 2006)]
[Senate]
[Pages S4121-S4123]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          MEDICAL MALPRACTICE

  Mr. REID. Mr. President, people will have other thoughts on medical 
malpractice legislation as they come to the floor, as they cast their 
vote. But for me, I want to make this a day to remember a wonderful 
woman by the name of Billie Robinson. I have handled medical 
malpractice cases. I want to talk about this one. I have talked about 
her before. I want to talk about her again. I could talk about other 
cases, but nothing has been so fixed in my mind, as I prepared for 
today, as Billie Robinson.
  I really didn't know Billie Robinson when she had all of her 
faculties; I only knew her after she had this surgery. Billie Robinson 
came from my hometown of Searchlight. She was like some other people in 
Searchlight, she had basically no education. She was a hard worker. She 
worked very hard physically. She developed headaches that were 
difficult for her to describe, but she did her best and went to a 
series of physicians. Every physician she went to told her she drank 
too much and she should lay off the booze and she would be better.
  She ultimately went to her fifth or sixth doctor, and the doctor 
decided maybe he should look and see what is inside her head and 
ordered some x rays and other diagnostic tests and found she had a 
tremendously large tumor in her head causing these blinding headaches. 
Her activities, her actions were not a result of alcoholism; they were 
the result of her head having a tumor causing her these horrible 
headaches. And yes, she did drink. She drank everything she could get 
her hands on to try to relieve that pain. A simple test early on would 
have determined what was wrong with Billie Robinson.
  As I said, when I saw her, she had already had the surgery. She 
didn't speak well. She would speak with very slurred speech, but you 
could tell this woman was a good woman. She had a good heart. She had 
no alternative, in an effort to live her remaining days in some 
dignity, but to try to seek some type of redress for the negligence of 
those doctors who had seen her, and she did get some satisfaction. It 
was not necessary that we go to a jury because those doctors who had 
attempted to treat her realized they had not done their job properly. 
So she lived out her life in a condition that was not appropriate.
  Had she had that surgery years before when the tumor was small, she 
would have been normal. It was not a malignant tumor. By the time they 
were able to operate, there had been so much damage because of the 
growth of the tumor that she had significant brain damage. She was able 
to buy herself a new mobile home and lived a quiet, peaceful life in 
Searchlight.

  Today, I remember Billie Robinson. Had this legislation been in 
effect that the majority is trying to pass today, if it had been in 
effect then, Billie Robinson would not have been able to buy herself a 
new mobile home. She worked for minimum wage almost all of her life. 
She would not have been able to have recovered compensation for the 
pain and suffering, to any degree, that she went through. She basically 
would not have had much.
  Today, I rise in protest. I rise to object to these Republican bills, 
these two bills that are put here as a result of the insurance 
industry. These measures before the Senate do not represent a serious 
attempt to improve health care or the civil justice system in our 
country. Moving to these bills is a tired political exercise, and the 
Senate should reject this political exercise out of hand. To think, 
with American consumers paying more than $3 a gallon for gas--the 
record is in San Diego, $3.40 today; all over Nevada, it is more than 
$3; the average across the country is $2.95--college tuition moving out 
of the reach of the middle class; to think, with the number of the Iraq 
war dead now pushing 2,500; to think, with immigration now being a 
security crisis unresolved; to think, with our country's deficit soon 
approaching $9 trillion; to think, with 46 million Americans lacking 
health care coverage, that we are moving to bills that are unnecessary 
and will go nowhere? What a waste of the Senate's time.
  It is wrong that we are doing this. We could more profitably use this 
time on any of the issues about which I just spoke. We could more 
properly use the scarce time remaining to address any of these urgent 
challenges facing America's families. I haven't even mentioned energy. 
We could do that. And we could address the real health care crisis, not 
this ``make do'' health care crisis.
  Both of these bills the Senate will consider today contain the same 
one-size-fits-all cap on damages. These bills have been rejected time 
and time again, and rightfully so. Both contain the same unjustified 
protections for hospitals, rest homes, HMOs, and, of course, insurance 
companies. In fact, these proposals are virtually identical to 
legislation we turned aside three times the last Congress. These bills 
are the same old song, and the votes will be the same old dance: 
Democrats protecting the American consumer from these huge companies.
  The top of this company pyramid, of course, is the insurance company, 
then hospital companies, extended-care facilities, rest homes. Even 
though these measures would dramatically rewrite the tort laws of all 
50 States and even though they would denigrate the legal rights of 
countless Americans, they have undergone no serious legislative review 
in this Congress.
  Don't be fooled by the bill numbers--S. 22 and S. 23--they are simply 
placeholders for legislative text that was only formally introduced 
last Wednesday. In fact, the text of these bills was not even available 
until a couple of days ago.

[[Page S4122]]

  The majority leader used a procedural technique called rule XIV that 
brings these bills straight to the Senate floor to avoid consideration 
of these bills by either the Judiciary Committee or the Health 
Committee. There has not been a single committee hearing, not a single 
witness, not a single opportunity to amend, not a single opportunity to 
compromise or negotiate. With this insurance industry legislation 
before this body, every step of the legislative process has been 
abandoned.
  Why has the majority proceeded in this manner? Because this is not a 
serious exercise in legislating. It is a political stunt being 
performed for the sole purpose of allowing Republicans to go back to 
their special interest friends led by the insurance industry and say: 
Look what we have tried to do to help, even though they should not be 
fooled by these transparent theatrics because that is all it is.
  The majority is short-circuiting the committee process because of the 
illusion of medical malpractice crisis. It is an illusion. It doesn't 
exist. Medical malpractice crisis? No. Health care crisis? Yes. There 
is a health crisis, but it has nothing to do with tort laws. It has 
nothing to do with the Billie Robinsons of this world. It has nothing 
to do with the people out there who are struggling to be able to take 
their kid to see the doctor, to be able to buy prescription drugs. It 
is a crisis when 46 million Americans have no health insurance, it is a 
crisis when health insurance is too costly for the average American. It 
is a crisis when medical errors are the sixth leading cause of death in 
America. But not a single provision in this legislation will provide 
health insurance to the uninsured, lower health care costs, or make 
patients safer. In reality, the whole premise of the medical 
malpractice crisis is unfounded.
  Over the weekend, I read a book. It is an insightful book entitled 
``The Medical Malpractice Myth,'' written by Tom Baker. Who is Tom 
Baker? Tom Baker is not a trial lawyer, he is not a lawyer who 
specializes in medical malpractice cases. Tom Baker's father and 
father-in-law are physicians. Tom Baker is a professor of law at the 
University of Connecticut School of Law. He is director of the 
Insurance Law Center at that university. He is not affiliated in any 
way with trial lawyers.
  In this book, Professor Baker methodically debunks the most common 
myths in the medical malpractice debate.
  Myth No. 1: ``Lawyers, not doctors, cause malpractice.''
  Professor Baker presents numerous studies demonstrating that the real 
problem is too much malpractice, not too much litigation. Of course, 
most doctors are skilled professionals and don't commit malpractice, 
but just as there are a few rotten apples in every basket, there are a 
small number of unskilled, uncaring, and negligent physicians in every 
State. Unfortunately, they don't always come to the attention of the 
licensing boards, and some move from State to State to avoid 
disciplinary action. These rotten-apple doctors should be held 
accountable, and the victims of their negligence deserve to be 
compensated, just like Billie Robinson deserves to be compensated.
  Myth No. 2: ``Lawsuits make health care unaffordable.''
  That is a myth.
  Professor Baker demonstrates that medical malpractice rates are based 
more on the cyclical nature of the stock market than on malpractice 
verdicts. When insurance companies' investments lose money, the 
companies raise their rates which they charge doctors to compensate for 
their loss.
  There is no better example that exists than what St. Paul did in the 
Las Vegas, NV, area. In fact, they had a deal. If the Clark County 
Medical Association referred a doctor to them, they gave a kickback to 
the Clark County Medical Association. They had almost all of the 
medical malpractice insurance in the Las Vegas area. What happened? 
There was a general lapse in the economy, the stock market wasn't doing 
well, real estate wasn't doing well, and they were in big trouble 
because they do not make their money with their premiums. They invest 
the premiums. That is where they make the money. When they make bad 
investments, that is when they come in and start talking about how 
unaffordable medical malpractice is. As a result, caps on damages do 
not reduce insurance premiums in the long run.
  For the most part, insurance rates have not gone down in those States 
which have capped damages. Nevada is a good example. After the self-
imposed crisis that St. Paul created, the Governor held a special 
session of the legislature and they set a cap of $350,000 on pain and 
suffering damages. OB-GYN malpractice premiums are 37 percent higher 
than in States without caps, general surgery premiums are 52 percent 
higher, and internal medicine premiums are 44 percent higher. In fact, 
since 2001, claims paid by Nevada's largest insurer have dropped 16.7 
percent while premiums have increased almost 33 percent.
  From 2000 to 2005, the net payouts of malpractice insurers declined 
3.1 percent. But over the same period in which payouts were declining, 
net insurance premiums were increasing by 93.2 percent. So claims 
decreased, but the companies more than doubled their premiums.
  Even if caps on damages did affect malpractice premiums, there is no 
reason to believe that caps would make health care more affordable 
overall.
  According to the Congressional Budget Office, malpractice costs 
amount to less than 2 percent of overall health care spending. If a 
reduction of 25 to 30 percent in malpractice costs were attainable, it 
would lower health care costs by only 0.4 percent to 0.5 percent.
  Myth No. 3: ``Lawsuits deny access to care.''
  That is a myth. It is only a myth.
  Despite the century-old complaint that lawsuits drive doctors from 
their practices, the medical profession continues to grow each year, 
and applications to medical schools have increased--and they are 
increasing right now. The number of physicians in the United States has 
increased every year since 1996, from 738,000 in 1996 to almost 885,000 
in 2004--less than 2 years ago.
  In 2003, the nonpartisan General Accounting Office surveyed five 
States repeatedly cited by the American Medical Association as examples 
of communities suffering from shortages of care because doctors are 
fleeing. The report concluded that such claims are widely overstated, 
and I quote, ``Many of the reported physician actions and hospital-
based service reductions were not substantiated or did not widely 
affect access to health care.'' Where doctor shortages exist, they are 
due to population shifts and the reluctance of doctors to practice in 
rural and low-income areas.
  In any event, caps on damages do not change the availability of 
physicians. States without caps on damages have more doctors per capita 
and 14 percent more active physicians than States with caps on damages. 
For example, the number of OB-GYNs in the United States has increased 
by nearly 25 percent--from 33,000 in 1990 to 42,000 in 2004. But in 
Nevada, where we have caps on damages, there are 27 percent fewer OB-
GYNs than in States that don't have caps.
  Myth No. 4: ``Lawsuits cause doctors to practice wasteful defensive 
medicine.''
  In his book, Dr. Professor Baker devotes a whole chapter to the goods 
on defensive medicine. He cites reports from the Congressional Budget 
Office and the former Congressional Office of Technology Assessment 
that question estimates of defensive medicine. The Congressional Budget 
Office specifically concludes that any savings from reducing defensive 
medicine would be small at best.
  Myth No. 5: ``Most lawsuits are frivolous.''
  Anyone who listened to the radio today heard a report that this isn't 
true. Take one look at the book ``The Faces of Neglect Behind the 
Closed Doors of Nursing Homes''--and you'll see case after case of 
neglect in these institutions, case after case, horrible pictures of 
things that were done to these men and women in rest homes. If this 
legislation passes, don't worry about holding them accountable anymore.
  Not every lawsuit has merit, but the tort system has plenty of 
mechanisms for weeding out frivolous claims. According to Professor 
Baker, ``[m]ost undeserving claims disappear before trial; most trials 
end in a verdict for the doctor; doctors almost never pay claims out of 
their own pockets; and

[[Page S4123]]

hospitals and insurance companies refuse to pay claims unless there is 
good evidence of malpractice.'' And that is an understatement.

  At the same time, the assertion that there exists an ``explosion'' in 
medical malpractice payouts in recent years is simply untrue. The 
average verdict size is relatively low and has remained stable for many 
years. A study by Americans for Insurance Reform found payouts have 
been virtually flat since the mid-1980s. As it is, Americans use the 
civil justice system as a last resort, going to court after all their 
efforts have failed.
  For these reasons, Professor Baker concludes that the medical 
malpractice crisis is a product of exaggeration and distortion.
  But even if there were a medical malpractice problem that needed to 
be cured, these bills are not the right medicine. They are riddled with 
major flaws. Let me talk about a few of them.
  First, they would impose an unreasonably low $250,000 cap on pain and 
suffering. Proponents of these bills claim that the cap is $750,000, 
but in the typical case where there is a single negligent party, the 
cap remains $250,000. In cases where the wrong limb is amputated or a 
patient is paralyzed or a mother loses a child, $250,000, I submit, is 
grossly inadequate. And it is even worse under S. 23. Under this 
legislation, the life of a woman rendered sterile by gross negligence 
of an OB-GYN is worth less than that of a man mistakenly sterilized.
  This is bad legislation.
  Second, these bills discriminate against women in more ways than 
that. By capping pain and suffering while simultaneously preserving 
full compensation for lost wages and salary, these bills devalue the 
worth of homemakers and stay-at-home parents. For instance, a homemaker 
whose reproductive system is destroyed by negligent treatment would 
suffer only noneconomic losses which are arbitrarily capped by this 
bill.
  At the same time, the bills limit punitive damages, a change which 
disproportionally affects women patients. Punitive damages are very 
rare in malpractice cases, but the cases where they do occur often 
involve sexual abuse of a female patient. Punitives would be virtually 
impossible to receive under this legislation.
  Third, the bills unjustifiably protect large corporations that own 
nursing homes from liability when they abuse or kill their patients. 
The National Citizens Coalition for Nursing Home Reform released this 
book, I mentioned earlier, ``The Faces of Neglect; Behind the Closed 
Doors of Nursing Homes,'' which profiles the heartbreaking experiences 
of 36 Americans who have suffered from abuse and neglect while in long-
term facilities. These are only a few cases of hundreds and hundreds. 
The book includes the story of Barbara Salerno, a Reno, NV, woman whose 
father died due to the neglect of a nursing home. It is a tragic case.
  The numbers of seniors who could be hurt by this bill are staggering. 
According to the GAO, 300,000 elderly and disabled residents live in 
chronically deficient nursing homes where they are ``at risk of harm 
due to woefully deficient care.'' Nationwide, 26.2 percent of nursing 
homes were cited for violations related to quality of care by 
regulatory agencies in 2004 alone, yet this bill gives sweeping 
liability protections to these negligent facilities.
  Fourth, these bills are an affront to federalism. Republicans love to 
talk about States rights, except when they want to impose a Federal 
solution on all 50 States. More than half of all States have already 
enacted malpractice reforms, but these bills would override these State 
legislative decisions. Specifically, this bill preempts those States 
which have debated a cap on damages and decided against that step on 
their own.
  For these reasons and many others, the pending bills are 
objectionable. In fact, the entire concept of medical malpractice 
reform is misguided. The right way to bring down medical malpractice 
insurance premiums is to reform the insurance industry, which is badly 
in need of oversight.
  A study commissioned by the Center for Justice and Democracy showed 
that insurance premiums more than doubled between 2000 and 2004 even 
though claims for pay-outs remained essentially flat. Given this price 
gouging, it is little wonder that the profits of the Nation's five 
largest medical malpractice insurers rose by nearly 18 percent last 
year, more than double the ``Fortune 500'' average.
  We need to strengthen Federal oversight of insurance industry 
practices that contribute to these rises in malpractice premiums. 
Unfortunately, the insurance industry enjoys almost complete immunity 
from Federal antitrust laws, and using this exemption, insurance 
companies can collude to set rates, resulting in higher premiums than 
true competition would achieve. Federal enforcement officials cannot 
investigate any such collusion because of this exemption.
  I am embarrassed to say this law came about as a result of the Nevada 
Senator McCarran. The McCarran-Ferguson Act. That is, I submit, the 
only bad thing he did.
  This act was passed to give a few years of relief to the insurance 
industry. Now, some 70 years later, insurance companies are the only 
businesses--other than Major League Baseball--not subject to antitrust 
laws. This rationale for this exemption has long since passed. 
Insurance should be like any other business--subject to antitrust laws.
  Senator Leahy's bill would accomplish this. To pretend these medical 
malpractice bills have anything do with making health more affordable 
is a cruel joke. These bills override the sound judgment of State 
legislatures and juries and substitute the arbitrary judgement of an 
insurance friendly Congress.
  We should not reward insurance companies making record profits. We 
should help doctors by reforming the insurance industry rather than 
undermining the legal rights of seriously injured malpractice patients. 
That is what these would do.

  I am going to vote against cloture. It is bad legislation. I hope 
that once again, we will help the American consumers and defeat these 
two bad bills.

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