[Congressional Record Volume 152, Number 55 (Tuesday, May 9, 2006)]
[Senate]
[Pages S4205-S4207]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            VOTE EXPLANATION

  Mr. DURBIN. Mr. President, yesterday, the Senate voted on two motions 
to invoke cloture to proceed to legislation regarding medical 
malpractice. Due to a mechanical problem with the plane on my flight 
from Chicago, I was necessarily absent for this debate and the first 
vote. Had I been present for that vote, I would have voted against the 
motion to invoke cloture, and I did vote against the second motion.
  Since 2003, the last time Congress considered this issue, 34 States 
have passed malpractice legislation. Four additional States have 
pending legislation in this year.
  AMA counts 21 States as ``crisis'' States. Of those 21 States, 16 
States passed legislation in the past 2 years, and two are currently 
considering bills.
  Instead of considering ways to cap pain and suffering damages for 
injured patients, Congress should be working on other health care 
priorities.
  Neither S. 22 nor S. 23 do anything to address medical errors, the 
underlying reason for medical malpractice lawsuits.
  According to the Institute of Medicine, medical errors have caused 
more American deaths per year than breast cancer, AIDS and car 
accidents combined. It is equivalent to a jumbo jet liner crashing 
every 24 hours for 1 year.
  When I sat on the Government Affairs Committee, Dr. Carolyn Clancy, 
Director of the Agency for Healthcare Research and Quality, testified 
about patient safety.

[[Page S4206]]

  She called medical errors ``a national problem of epidemic 
proportions.'' She went on to say that Congress and HHS need to make 
sure that health care professionals work in systems that are designed 
to prevent mistakes and catch problems before they cause harm.
  These bills will do nothing to reach that goal.
  The most far-reaching study of the extent and cost of medical errors 
in our hospitals was published in the Journal of the American Medical 
Association, the authors of the study analyzed 7.45 million records 
from 994 hospitals in 28 States, a sample representative of about 20 
percent of U.S. hospitals.
  They concluded that medical injuries in hospitals ``pose a 
significant threat to patients and incur substantial costs to society'' 
and ``are a serious epidemic confronting our health care system.''
  The study found that injuries in U.S. hospitals in 2000, just 1 year, 
led to approximately 32,600 deaths, at least 2.4 million extra days of 
patient hospitalization and additional costs of up to $9.3 billion. 
These injuries did not include adverse drug reactions or malfunctioning 
medical devices.
  What do these bills do about these medical errors? Nothing.
  Instead, these bills place an arbitrary, one-size-fits-all cap on 
noneconomic damages, forfeiting the right of a jury to decide the 
appropriate level of compensation for an injured person.
  The answer to this problem is not to have Congress deciding what 
injured patients should receive. America has judges and juries who make 
those decisions. One hundred Senators do not have all the facts and 
should not place a blanket cap on all cases.
  Proponents of this bill are saying it is a ``new'' medical 
malpractice proposal because a patient could receive up to $750,000 in 
pain and suffering as opposed to the $250,000 cap we considered in 
2003.
  However, the cap is still $250,000 for a doctor, a hospital or other 
provider. If a patient is injured at three hospitals or by three 
doctors, he or she could receive a total $750,000, but the cap is still 
$250,000 per provider.
  Ten years ago, Donna Harnett arrived at a hospital in Chicago, IL, in 
labor with her first child. She waited nearly 5 hours before being 
admitted. Following an initial examination, her doctor decided that her 
labor was not progressing quickly enough and prescribed a drug to help 
induce more contractions.
  Later, when Donna's labor still was not progressing, her doctor broke 
her water and found that it was abnormal. Rather than consider a C-
section, Donna's doctor decided to continue administering the drug, in 
hopes that the labor would progress.
  Six hours later, Donna still hadn't delivered, but her son's fetal 
monitoring system began alarming, indicating that the baby was in 
serious respiratory distress. The doctor finally decided that it was 
time to perform an emergency C-section, but it was another hour before 
Donna was taken into the operating room.
  During that time, the doctor failed to administer oxygen or an IV to 
help the baby breathe. After Martin was born, he remained in the 
intensive care unit for 3 weeks. Examinations have since revealed that 
Martin has substantial brain damage and cerebral palsy--a direct result 
of the doctor's failure to respond to indications of serious oxygen 
deprivation and deliver in a timely manner.
  Donna's doctor told her never to have more children because there was 
a serious problem with her DNA, which could result in similar mental 
and physical disabilities in any of her future children.
  Donna has since given birth to three perfectly healthy sons. Donna 
sued the doctor responsible for Martin's delivery and received a 
settlement, but this doctor is still licensed and practicing medicine 
in Illinois--despite several other cases that have been filed against 
him.
  Donna is thankful that she has money from a malpractice settlement to 
help cover the costs associated with Martin's care that are not covered 
by health insurance--such as the used, wheelchair-accessible van that 
she purchased for $50,000, and the $100,000 for renovating the new home 
she purchased to make it accessible for Martin.
  If the law we are debating today had been in place when Donna filed 
her malpractice suit against the doctor who delivered Martin, she 
doubts that she would have been able to keep him out of an institution, 
because as someone who sustained permanent injuries as a newborn, 
Martin would not have been eligible for an economic damage award.
  The problem with malpractice premiums is a cyclical insurance 
problem. We had a crisis during the 1970s and again in the 1980s. 
Dozens of States have passed tort reform. Yet we find ourselves faced 
with the same problems. That is because we haven't looked closely at 
insurance companies.
  Property casualty insurers had a record year in 2005.
  The property casualty insurance industry made $43 billion in profit 
last year.
  The difference between the cost of the policies offered to doctors 
and hospitals, and the payouts from lawsuits is enormous. Payouts have 
remained steady while premiums have skyrocketed.
  Wonder where that money is going?
  Jeffry Immelt, the CEO of GE, made $19.23 million last year.
  Martin Sullivan, CEO of American International Group, made $11 
million.
  Stephen Lilienthal, CEO of CNA Financial Corporation, made $3.2 
million.
  A. Derrill Crowe, CEO of ProAssurance, made $1.5 million.
  This bill completely ignores the role of insurers in this problem.
  Between 1993 and 2003, the annual premiums Americans paid for their 
health insurance increased by 79 percent and employer contributions to 
their employee insurance increased by 90 percent.
  We need to be looking at the underlying reasons for rising health 
costs, and these bills do nothing to achieve that goal.
  In fact, a new CBO report, published last Friday concluded that ``the 
estimated effect of implementing a package of previously proposed tort 
limits is near zero.''
  In other words, capping pain and suffering for patients will not 
bring down health insurance costs.
  Proponents of limiting pain and suffering claim frivolous lawsuits 
are at the root of the problem, but these bills do nothing to cut down 
on the number of lawsuits. They only punish those who have legitimate 
cases.
  The people whose cases make it to jury verdicts have surmounted many 
hurdles. Cases without merit are thrown out before they ever reach the 
jury. Why would we want to limit pain and suffering for those whose 
cases make it through the system?
  Medical malpractice is a complicated and multifaceted problem that 
requires a variety of solutions.
  First, we must improve patient safety. Medicare is starting to 
embrace something called Pay for Performance that will go a long way 
toward improving quality.
  The idea of Pay for Performance is to pay doctors based on whether 
they fulfill certain quality standards and use the best treatment 
methods, rather than simply reimbursing for all services performed.
  Under a Medicare pilot program, doctors can qualify for bonuses if 
they provide services like vaccines and cancer screening, and eliminate 
unnecessary procedures.
  Here is an example of how it can improve quality.
  Hackensack University Medical Center in New Jersey signed up for the 
program. It agreed to report its performance on a variety of measures.
  Right away, the hospitals noticed some problem areas. Under clinical 
guidelines, a patient who has had orthopedic surgery should be taken 
off IV antibiotics after 24 hours. Longer use of the drugs don't 
prevent infection, they cost money, and they can lead to greater 
antibiotic resistance.
  Hackensack hospital found that 25 percent of their surgery patients 
were being kept on IV antibiotics longer than 24 hours. Within one week 
of the launch of the Pay for Performance program, 94 percent of 
patients were taken off the drugs on time.
  Second, we must improve oversight. We have something called the 
National Practitioner Data Bank, which was set up to allow licensing 
boards and employers to check on doctors' records before they are hired 
so problem doctors could not move from state to state.

[[Page S4207]]

  This data bank is not working. According to the federal Department of 
Health and Human Services, nearly 54 percent of all hospitals have 
never reported a disciplinary action to the data bank.
  Federal law requires that hospitals and medical boards be penalized 
if they don't report to the data bank. But no fine or penalty has ever 
been levied.
  Further, hospitals sometimes agree not to report doctors they are 
forcing from their staffs to smooth their departure. Also, physicians' 
names are removed from malpractice settlements to keep them out of the 
data bank.
  The failings of the data bank create problems like the one faced by 
Gwyneth Vives. Three hours after giving birth to a healthy boy in 2001, 
Vives, a scientist at Los Alamos National Laboratory in New Mexico, 
suffered a complication and bled to death.
  The OB/GYN who tended to Ms. Vives had a troubled history. She had 
previously been forced to leave a job at Duke University Medical Center 
in North Carolina when questions arose about her surgical skills and 
her complication rate.
  According to the New Mexico Medical Board, she lied to get her New 
Mexico license, saying she had never lost hospital privileges.
  After Ms. Vives died, the OB/GYN went to Michigan and got a license.
  We must improve the national practitioner database system so the few 
doctors who are causing medical injuries cannot simply move to another 
State.
  Contrary to popular belief about frivolous lawsuits, 95 percent of 
people who are injured by a doctor do not sue.
  Studies have shown that the most significant reason people sue is 
because they feel their doctor or hospital did not acknowledge the 
problem, or apologize. In other words, they are angry.
  Based on this data, a program called ``Sorry Works'' has been 
launched. Under the program, doctors and hospital staff conduct 
analyses after every patient injury, and if a medical error caused the 
problem, the doctors and hospital staff apologize, provide solutions to 
fix the problem, and offer upfront compensation to the patient, family, 
and their attorney.
  This approach helps alleviate anger and actually reduces the chances 
of litigation and costly defense litigation bills. The program has 
worked successfully at hospitals such as the University of Michigan 
Hospital system, Stanford Medical Center, Children's Hospitals and 
Clinics of Minnesota, and the VA Hospital in Lexington, Kentucky.
  I am proud to say that Illinois is the first State to enact a Sorry 
Works pilot program statewide.
  My colleague from Illinois, Barack Obama, has introduced a bill in 
the U.S. Senate to facilitate federal funding for apology programs.
  The insurance industry has a blanket exemption from Federal antitrust 
laws. Using their exemption, insurers can collude to set rates, 
resulting in higher premiums than true competition would achieve--and 
because of this exemption, enforcement officials cannot investigate any 
such collusion.
  There was an article in the Washington Post last Friday about Hank 
Greenberg, the former chairman of one of the largest malpractice 
insurers in the country, American Continental Group.
  Mr. Greenberg has been sued by New York Attorney General Eliot 
Spitzer for fraudulent transactions aimed at manipulating the insurer's 
financial statements and deceiving regulators and investors.
  If Congress is serious about controlling rising medical malpractice 
premiums, we must revoke this blanket exemption created in the 
McCarran-Ferguson act.
  I am a cosponsor of a bill introduced by Senator Leahy called the 
Medical Malpractice Insurance Antitrust Act. Our bill modifies the 
McCarran-Ferguson Act for the most pernicious antitrust offenses: price 
fixing, bid rigging, and market allocations.
  Who could object to a prohibition on insurance carriers' fixing 
prices or dividing territories for anticompetitive purposes. After all, 
the rest of our Nation's industries manage either to abide by these 
laws or pay the consequences.
  We need to stop insurers from gouging doctors and hospitals and this 
bill is a step in the right direction.

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