[Congressional Record Volume 153, Number 86 (Thursday, May 24, 2007)]
[Senate]
[Pages S6855-S6856]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BAUCUS (for himself and Mr. Enzi):
  S. 1481. A bill to restore fairness and reliability to the medical 
justice system and promote patient safety by fostering alternatives to 
current medical tort litigation, and for other purposes; to the 
Committee on Health, Education, Labor, and Pensions.
  Mr. BAUCUS. Mr. President, for years, Congress has not been able to 
answer the question, ``What can be done about rising medical 
malpractice insurance premiums?'' Today, Senator Enzi and I begin a 
process we hope will end with action by Congress to resolve the 
problem.
  The discussions the Senate has had about medical malpractice premiums 
until now have centered around imposing caps on noneconomic damages. 
The debate over caps has occurred several times in recent years, and 
has always ended with a failure to invoke cloture to vote on the 
legislation.
  I have consistently opposed caps legislation because caps have been 
unsuccessful in preventing increases in medical malpractice premiums in 
my home State of Montana, as well as several other States. Clearly, it 
is time for a different approach.
  The problem of rising insurance premiums affects the medical 
community, the legal community and, most importantly, patients. 
Doctors, burdened with continually-increasing insurance costs, have 
chosen to retire early, relocate their practices, or limit the services 
they provide to avoid high-risk procedures. Lawyers are concerned that 
reforms limit patients' ability to be compensated for their injuries. 
While patients find themselves caught in the middle, with ever-
decreasing access to medical and legal services.
  One of the reasons caps do not offer significant hope for improving 
the situation is that they treat the symptom of increasing premiums but 
not the underlying disease. We need to look for solutions that get to 
the root of the problem.
  Any successful resolution to the problem must focus on compensating 
injured patients and on attempting to prevent similar injuries in the 
future. A 1999 Institute of Medicine study, To Err is Human, estimated 
that medical errors cause as many as 98,000 deaths per year in our 
Nation's hospitals alone. Even more deaths occur over the long-term and 
outside hospitals.
  I think a new approach is in order. As such, Senator Enzi and I 
introduced the Fair and Reliable Medical Justice Act in the 109th 
Congress, and we are here today to reintroduce it. Our bill is 
innovative in how it confronts the problem.
  We believe that a solution to this complex problem requires 
flexibility. We believe that because the civil justice system is 
largely a function of State law, the States are best situated to decide 
how their systems can be improved to work better for patients. We also 
believe that changes of this order should be tested and well thought 
out rather than simply mandated. There is no one size fits all answer.
  So, our bill provides flexibility, leaves the decision-making to 
States and provides for demonstration programs to implement change in a 
thoughtful way. We owe a debt of gratitude to the experts at the 
Institute of Medicine for their 2002 report entitled, Fostering Rapid 
Advances in Health

[[Page S6856]]

Care: Learning from System Demonstration, for helping shape the Fair 
and Reliable Justice Act.

  Our bill promotes State-based demonstrations of alternatives to 
current medical liability litigation. It aims to increase the number of 
patients who receive compensation for their injuries. It also tries to 
improve the speed with which they receive such compensation. The bill 
also encourages patient safety by promoting disclosure of medical 
errors, unlike the current tort system which encourages doctors to 
cover up medical mistakes.
  Because the insurance premium problem and civil justice remedies vary 
by state we feel that the States are best positioned to analyze their 
unique situations and most capable to implement an effective solution. 
Therefore, the Fair and Reliable Medical Justice Act would establish 
State-based demonstration programs. The bill allows States to develop 
new ways to address and resolve their health care dispute issues.
  There are innovative efforts already in effect in the private sector 
and some States that have achieved some success. I think it is time to 
encourage more innovation, to expand the range of options, and to 
empower the states to experiment and learn how to solve this persistent 
problem.
  I want to thank Senator Enzi for his leadership on this issue. I am 
proud to have worked with him. I also want to recognize Representatives 
Cooper and Thornberry, who are dropping a companion bill in the House 
today. This bill approaches the medical liability insurance premium 
problem from a new perspective, through a set of common-sense pilot 
projects centered on improving patient safety. Rather than mandating a 
Federal band-aid for this recurring problem, this bill encourages the 
States to be innovative and creative to solve the problem while giving 
them flexibility and Federal support to implement their cures.
  Mr. ENZI. Mr. President, I rise to discuss a bill that I will 
introduce today with Senator Baucus--the Fair and Reliable Medical 
Justice Act of 2007. This legislation recognizes the current disrepair 
of our medical liability system and puts into place a process that will 
provide better results for patients and for doctors.
  Our legislation is designed to encourage States to rethink the way 
the system works so that injured patients receive fair and just 
compensation in a more timely manner. The new system would also provide 
consistent and reliable results so that doctors can eliminate the 
practice of defensive medicine and instead focus on the needs of each 
individual patient. Unfortunately, that doesn't happen right now 
because our system is broken.
  I know we debate medical litigation frequently here on the floor, but 
throughout those debates I have noticed something interesting. Whenever 
we argue the pros and cons of the bills before us, no one ever stands 
up to argue that the system doesn't need any reform. In fact, everyone 
in the Senate agrees that our medical litigation system needs to be 
changed.
  Why doesn't anyone try to defend our current medical litigation 
system? Because it doesn't work. No one--not patients or health care 
providers--are appropriately served by our current procedures. Right 
now, many patients who are hurt by negligent actions receive no 
compensation for their loss. Those who do receive a mere 40 cents of 
every premium dollar, given the high costs of legal fees and 
administrative costs. That is simply a waste of medical resources. The 
randomness and delay associated with medical litigation does not 
contribute to timely, reasonable compensation for most 
injured patients. Some injured patients get huge jury awards, while 
many others get nothing at all. It is important to patients and doctors 
that our justice system is perceived as both efficient and fair. 
Furthermore, the likelihood and the outcomes of lawsuits and 
settlements bear little relation to whether a healthcare provider was 
at fault. Consequently, we are not learning from our mistakes. Rather, 
we are simply diverting our doctors. When someone has a medical 
emergency they want to see a doctor in an operating room, not a court 
room.

  The medical liability system is losing information that could be used 
to improve the practice of medicine. Although zero medical errors is an 
unattainable goal, the reduction of medical errors, should be the 
ultimate goal in medical liability reform. The Institute of Medicine, 
in its seminal study, ``To Err is Human,'' estimated that preventable 
medical errors kill somewhere between 44,000 and 98,000 Americans each 
year. That study further emphasized that to improve our health care 
outcomes, we should no longer focus on individual situations but on the 
whole systems of care that are failing American patients. In the 8 
years since that study, little progress has been made. Instead, the 
practice of medicine has become more specialized and complex, while the 
tort system has forced more focus on individual blame than on system 
safety.
  To mitigate that individual blame, doctors practice ``defensive 
medicine.'' Simply stated, ``defensive medicine'' occurs when a doctor 
departs from doing what is best for the patient because of fear of a 
lawsuit. Defensive medicine can mean ordering more tests or providing 
more treatment than necessary. For instance, a doctor might order an 
unnecessary and painful biopsy. Some estimates suggest that Americans 
will pay $70 billion for defensive medicine this year. Even if it is 
half that, it is still way too much.
  Let's face it. Our medical litigation system is in need of repair. It 
fails to achieve its twin objectives. It doesn't provide fair and fast 
compensation to injured patients, and it doesn't effectively deter 
future mistakes. Even worse, it replaces the element of trust that is 
so vital to the provider-patient relationship with distrust. We can 
make it better.
  That is why I am introducing this key legislation with Senator Baucus 
today. Our bill would provide $5 million to 10 States to initiate, 
fund, and evaluate demonstration projects that offer alternatives to 
traditional tort litigation. It will not pre-empt State law. It will 
allow States to find creative alternatives that will work much better 
for patients and providers in each State. The States have been policy 
pioneers in many areas before, including workers' compensation, welfare 
reform, and electricity deregulation. Medical litigation should be the 
next item on the agenda of the laboratories of democracy that are our 
50 States. Let's take a step forward for American patients and their 
doctors by allowing this framework to move forward and make the changes 
that we all know are needed.
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