[Congressional Record Volume 154, Number 66 (Thursday, April 24, 2008)]
[Senate]
[Pages S3378-S3380]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              HEALTH CARE

  Mr. ISAKSON. Madam President, I rise this afternoon to talk for a few 
minutes about health care in America--the cost of health care in 
America, the access to health care in America, and to talk 
prospectively about the first 4 years of the next President of the 
United States. It is pretty obvious, because of the complexity of 
health issues and because of a political campaign year, we are not 
going to get to a resolution this year.
  It is obvious our country has a crisis. It is obvious we have to move 
forward. It is obvious to me that whoever the next President of the 
United States is, the very first thing they are going to have to tackle 
is affordable, accessible, and quality health care.
  The health care issue is one that has a million angles to it. I am 
not going to talk about all those angles today. Secondly, I am not 
going to stand up here and tell my colleagues that I think I have all 
the answers. However, I do think it is time that all of us who have 
said: Well, I am not for government-provided health care--that is not 
good enough. If you are not for it, you have to be for something. You 
can't have the easy way out. There have been a lot of people who say: I 
don't want single-payer health care; I don't want the Government to do 
to health care what they did at the IRS, but I don't have any good 
ideas.
  It is time we came up with some goods ideas. We are going to have to 
do what is maybe different and philosophically and politically 
challenging to Republicans and to Democrats. But first what we ought to 
do is look to successes around the country that have solved some of the 
cornerstone issues in terms of the costs of health care.
  One of those is the cost of medical malpractice and what is commonly 
called tort reform. The minute a politician mentions tort reform, they 
get everybody's attention, but in particular, a trial lawyer's. I am 
not a trial lawyer basher. Some of my best friends are trial lawyers. I 
always tell people: Everybody hates lawyers, but they love their 
lawyer. When you need a lawyer, you want a good one. I wish to bring a 
perspective to the tort issue as it deals with medical malpractice to 
try and point out there have been solutions found--solutions that do 
not prohibit an injured person from being compensated for the damages 
that were caused to them, while at the same time quantifying and 
capping at a predictable amount for those actuaries the cost of what 
these runaway awards have been doing to us.
  We have tried on the floor of the Senate, on more than one occasion, 
to address this, in part. We tried with legislation in the 109th 
Congress to limit or to cap noneconomic damages in OB/GYN cases. The 
reason we targeted OB/GYN and obstetrics cases was because they 
consistently have runaway insurance premiums; we consistently have 
problems in our States where there are not enough doctors to deliver 
the babies for families in our communities because there are not enough 
doctors who can afford the medical malpractice insurance as it rises.
  Unfortunately, we never passed that in the Senate, although in two 
different amendments we tried. In my judgment, it would have helped 
with the situation. Today, I want to talk about a good example from my 
State of Georgia and about some things I think we can do in the 
Congress.
  In 2005, our State Senate in Georgia passed a Senate Bill 3, by a 
vote of 39 to 15, and it went to the house and passed by a vote of 136 
to 34. Obviously, it was bipartisan. We have had 2 years' experience 
with that bill. The experience has demonstrated what we had hoped it 
would: No injured person was aggrieved or denied coverage or recovery, 
but the cost of health care on medical malpractice became more 
predictable and rates stabilized.
  The points in that bill that passed in Georgia are precisely the 
points we ought to look at in terms of the Federal court system. Point 
No. 1, eliminate joint and several liability in a medical malpractice 
case. For those who may not know what that is, it means if somebody is 
injured, or alleges they have been injured, and they file suit against 
the person who injured them, in the normal course of our litigious 
society, they also sue everybody else who is even remotely related to 
that particular situation. I was a real estate broker in Georgia. If we 
sold a new house to a family and the first time it rained after they 
moved in the basement leaked, they sued the builder, but they sued me, 
too, so they had a wide sweep to try to recover. I understand that. 
There are times when joint and several is appropriate, because 
sometimes more than one party in an injured class situation is involved 
in the injury and should be held accountable. But to summarily make 
joint and several apply without any conditions is wrong.
  What we put in the Georgia law was that the plaintiff must identify a 
single defendant in the suit, unless he proved clearly and convincingly 
that the hospital or the physician and others in the system were also 
negligent. That is not unreasonable. We want to make sure that if 
somebody is injured by a doctor, they can recover. But then to hold the 
hospital, or the hospital authority, or the county health authority 
liable, when they were not part of the procedure, we don't think that 
is right. That is one of the reasons you have a tremendous cost of 
malpractice insurance.
  Second, to strengthen expert witnesses, who are critical in any court 
situation where you are trying to prove damages. But experts ought to 
be experts. For example, if you have a traumatic brain injury, the 
expert testifying on behalf of the plaintiff and the expert testifying 
on behalf of the defense ought to both have neurological training. It 
is not right for a dentist, who happens to be an MD, to testify in a 
neurological case. So by putting in requirements in terms of witnesses, 
you establish a situation where you have clear, responsible testimony, 
and you cannot use a ``quasi'' person to give you irresponsible 
testimony.
  Third, limit liability for emergency department physicians and 
personnel. I want to talk about this for a minute. Talking about 
Georgia again, we have

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Grady Memorial Hospital in Atlanta, one of the largest public hospitals 
in the United States. It was on the verge 6 months ago of closing 
because almost everybody who goes there is indigent or a nonpaying 
customer. They may be on Medicare or Medicaid, but in every accident 
that happens on the freeway system there, they take the injured to that 
trauma center. It is the largest burn center in the Southeast. Grady 
Memorial Hospital is losing so much money that it was on the verge of 
bankruptcy. The community has come together, with volunteer citizens 
such as Pete Corell and Tom Bell in our city, who deserve tremendous 
credit. They created a nonprofit organization to take over the 
organization of the hospital and raise capital, and I believe we are 
going to save that great trauma center and that great hospital.
  Frankly, they operate under terrible circumstances in that trauma 
center. To have the type of liability in a trauma center that people 
want to hold you accountable for today with medical malpractice 
liability, with no Good Samaritan laws for those people isn't right. If 
somebody is brought in after a tragic wreck and there are not qualified 
exceptions for a physician to treat that person, you are never going to 
have the type of immediate response care that you need. You don't have 
the time to practice defensive medicine in a trauma situation, which, 
by the way, I will get to defensive medicine next. It is one of the 
contributing causes to the cost of health care. Defensive medicine is 
practiced primarily because of the court system.
  I had a problem a few years ago. I went to the doctor and they said, 
well--they gave me this and it didn't work, so they gave me that and it 
didn't work. So they gave me a full-body CT scan. I had a swallowing 
problem. I wondered why they did a full-body CT scan. He said he wanted 
to be sure he had done everything he could. He had to practice 
defensive medicine, when a scan from the chest up would have been fine. 
That is one of the reasons you have runaway malpractice awards and the 
litigious nature of our society. It is a skewed system and you have 
costs running through the roof.
  We need to elevate the burden of proof from the ``preponderance of 
the evidence'' to ``clear and convincing evidence.'' We did that in 
Georgia 2 years ago. I don't know about you, but if I am accused of 
something, I don't want somebody to decide because the preponderance of 
the evidence said I was wrong; I want it to be clear and convincing. 
That is the way it ought to be, in terms of medical malpractice as 
well.
  Then the real hot potato--the one everybody goes ballistic on--is 
talking about capping noneconomic damages. Georgia did something 
unique. They capped noneconomic damages at $350,000. That is the pain 
and suffering. Noneconomic means if you were injured, all the costs of 
that injury, the costs of the treatment and the corrective treatment, 
and all the economic losses you have, you get all of that. Noneconomic 
is when they add on another penalty to the guilty person for the pain 
and suffering. Georgia capped it at $350,000. They gave an overall cap 
of $1.050 million, allowing the judge to lift the $350,000 if the 
evidence in the court case proved a higher damage was necessary. That 
is the point I want to address in the Federal court law.
  I have three children. My second son, Kevin, in 1998 was in a 
terrible automobile accident in rural Georgia. He was on a camping trip 
with a 16-year-old buddy. They were going down a country road in Greene 
County, 2 a.m. in the morning--which is another subject I will get to 
as a father later on--and a deer crossed the road. A deer will stop in 
the headlights. The deer took off. My son was a passenger, and the 
driver decided to follow the deer rather than the road, hit a ditch, 
and my son went through the front windshield. He had four operations. 
He had to get grafts, bone marrow treatments, and he had internal 
infections. He has more metal in his right leg than I have in my 
automobile. The doctors put him back together. Making the case about 
litigation, I have to tell you that was a case where my son was hurt 
and there was negligence. I was angry. In Georgia, we have something 
called no-fault insurance, which means you have $15,000 in coverage, 
which covered the emergency room, and there is no more coverage. 
Everybody is on their own. But we had obvious negligence. In that case, 
fortunately, the young man who was driving, who was negligent--his 
father, although he had minimum coverage for the accident, had a 
general liability policy. He said: My son was wrong and your son is 
going through terrible pain. Let's sit down and go to my insurance 
company and negotiate, through a professional arbitrator, what is the 
right general liability award for your son. We did that. We negotiated 
it and used an index of nationally approved negotiators, in terms of 
what damage would have been right. We agreed to it and my son still has 
that reserve in case he has further complications from the damage done. 
No liability responsibility, but a cost that was appropriate for the 
injury, rather than gained through a court case and a litigious action.

  It is my personal opinion that we should cap noneconomic damages in 
the Federal court and medical malpractice in the following way: Change 
the current law. The current law allows a judge to reduce the amount of 
the award if he doesn't think it was right. The judge can reduce it. I 
think we ought to cap liability on medical malpractice at a million 
dollars for the noneconomic damages, but then say the judge can lift 
that cap if the evidence in court proves gross negligence. That changes 
the dynamics of litigation. Instead of suing and going for big bucks 
because you can, you will realize that the burden of proof is to 
justify the big bucks based on your circumstances and the facts of the 
case, and you don't intimidate people into negotiating high 
settlements. Instead, you put the burden on clear and convincing 
evidence, which, in my case, as I have said, is the only way to go.
  Medical malpractice is certainly not the only cause of the higher 
costs of health care in America. Solving medical malpractice costs 
doesn't address all of the other factors, but it is a component part. I 
am willing to sit with others and talk about all those other things we 
beat our gums about but never do anything about that are components of 
the cost of health care.
  I will talk about what we need to do in terms of Medicare 
eligibility. When somebody signs up for Medicare when they are 65 years 
old--you are supposed to go in 90 days before your 65th birthday; I am 
getting close, so I am looking at these things--I think you ought to be 
required to execute a durable power of attorney when you become 
eligible. Eighty percent of the cost of health care to me, to you, and 
to anybody else happens in the last 60 days of life. More often than 
not, people are not in a condition to make a decision for themselves. 
Because of laws, and because we are a compassionate nation, the 
physician will keep you alive as long as he can. If you had a chance, 
you might rather say if I am being hydrated and given nutrition but 
will never become conscious again, I give the doctors the authority to 
make the appropriate medical decision. The money that would save is in 
the ``gazillions'' of dollars--if there is such a number. It would help 
us to manage that cost.
  Secondly, we need accountability on the part of the American 
policyholders, and wellness and disease management. My second son's 
father-in-law is a Swede. He came to America and now lives here full 
time. He bought a medical insurance policy independently, because he is 
retired. About 6 months ago, he called me and we went out to dinner. He 
ordered a salad, broccoli, and asparagus, and he didn't put any sugar 
in his tea. I said: What are you doing? What kind of a diet are you on? 
He said: It is my health insurance, not my diet. My policy will go up 
to $500 a month if I don't get my cholesterol below 200. His vital 
signs are a component of health care and, if he wasn't taking care of 
himself, he would pay a higher premium for the benefits he needed. We 
need to look at disease management and wellness and accountability.
  I came to the floor to talk about what is going to be the biggest 
issue in the first term of the next President, the biggest crisis. If I 
am fortunate enough to win reelection in 2010, the Nation's Medicare 
system is going to be broke before I leave the Senate. This is not an 
issue we need to talk about in the future. The time is now. It is time 
for good men and women of both political parties to put all of the 
issues on

[[Page S3380]]

the table and not just talk about what they are not for but start 
talking about the solutions that can make a difference in the quality, 
accessibility, affordability, and health care for the people of the 
United States of America.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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