[Congressional Record Volume 155, Number 152 (Tuesday, October 20, 2009)]
[Senate]
[Pages S10538-S10540]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           HEALTH CARE REFORM

  Mr. McCAIN. Mr. President, last year, the President of the United 
States, during his campaign, stated that there was going to be a change 
in the way we do business here in our Nation's Capitol, and that when 
it comes time for a conference on a bill that the American people would 
be brought in; that C-SPAN cameras would be there as Republicans and 
Democrats in a room that was open to the American public; that they 
would sit down and negotiate and come forward with results from a 
process that the American people would all be aware of. I have the 
direct quote here.
  So what is going on today? Here is the bill from the HELP Committee. 
This is only some 600 pages. And over here we have the Finance 
Committee bill, some 1,500 pages. And not far from here--very close to 
here--there is a handful of Democrats and administration people behind 
closed doors who are reconciling these two bills. Sooner or later they 
will come out of that room--fortunately no longer smoke filled, but 
certainly with no access or information available for the American 
people--with perhaps a 2,100-page bill which has yet to be on the 
Internet so that the American people can see it. A remarkable process. 
No one should wonder then about the cynicism that is out there in 
America about the way we do business in our Nation's Capitol.
  Less than 6 months ago, the President stood before a receptive 
audience and he told the members of the American Medical Association, 
and I quote him:

       Now, I recognize that it will be hard to make some of these 
     changes if doctors feel like they're constantly looking 
     over their shoulders for fear of lawsuits. Now I 
     understand some doctors may feel the need to order more 
     tests and treatments to avoid being legally vulnerable. 
     That's a real issue. I do think we need to explore a range 
     of ideas about how to put patient safety first, how to let 
     doctors focus on practicing medicine. I want to work with 
     the AMA so we can scale back the excessive defensive 
     medicine that reinforces our current system. So this is 
     going to be a priority for me.

  That is a quote from the President back when he spoke to the AMA less 
than 6 months ago. Yet in this 600-page document there is not a mention 
of medical malpractice reform. In this 1,500-page document there are 20 
pages of sense-of-the-Senate language. In case there is anyone who 
doesn't know what sense of the Senate means, it means exactly that. It 
does not mean law.
  So the President of the United States talks to the AMA and tells them 
that we are going to bring about change. We are going to stop this 
practice of defensive medicine, which by the way, the estimates say 
account for as much as $200 billion a year added to health care 
expenses. But what have we got here, and here, and going on behind 
closed doors? Does anybody believe the Democrats are going to come out 
with anything that is meaningful on medical malpractice reform? No. But 
what they will do is to say that we are going to try some demonstration 
projects. We are going to try some demonstrations.
  In fact, on September 9, 2009, before a joint session of Congress, 
the President went a step further and stated:

       Now, finally, many in this Chamber--particularly on the 
     Republican side of the aisle--have long insisted that 
     reforming our medical malpractice laws can help bring down 
     the cost of health care. Now, I don't believe malpractice 
     reform is a silver bullet, but . . . defensive medicine may 
     be contributing to unnecessary costs. I know that the Bush 
     administration considered authorizing demonstration projects 
     in individual States to test these ideas.

  And by the way, the reason why they did that was because they 
couldn't get meaningful malpractice reform through the Congress. 
Continuing the quote from the President:

       I think it's a good idea, and I'm directing my Secretary of 
     Health and Human Services to move forward on this initiative 
     today.

  Shortly thereafter, the President did issue a memo on medical 
malpractice reform where he stated:

       We should explore medical liability reform as one way to 
     improve the quality of care and patient-safety practices and 
     to reduce defensive medicine.

  So we all read with great interest about the new initiative. The memo 
went on to state:

       We must foster better communication between doctors and 
     their patients. We must ensure that patients are compensated 
     in a fair and timely manner for medical injuries,

[[Page S10539]]

     while also reducing the incidence of frivolous lawsuits. And 
     we must work to reduce liability premiums.

  The memo concluded with the grand policy crescendo and a request that 
the Secretary of Health and Human Services announce:

     . . . that the department will make available demonstration 
     grants to States, localities, and health systems for the 
     development, implementation, and evaluation of alternatives 
     to our current medical liability system.

  There is nothing to be demonstrated. We already have two 
demonstration States--California and Texas--where medical malpractice 
laws are working. What is needed is leadership. Despite all the 
promises, the President and his party have yet to put forward any real 
medical malpractice liability reforms as part of either of the two 
health bills that have been shepherded through two Senate committees 
that are being merged behind closed doors by a select few.
  I wish to point out that every time we tried to get an amendment on 
the 600-page bill--not the 1,500-page bill--those amendments to do even 
the slightest change in medical malpractice were voted down on a party-
line basis. It is a failure of leadership.
  How many patients are subjected to unneeded and unwarranted tests and 
procedures--some of which are certainly not painless--because the 
doctor has to perform defensive medicine? How many medical 
practitioners in America today are like the chief of surgery, the 
surgeon I met at the Palmetto Medical Center in Miami, who said: No, I 
don't have insurance. I couldn't afford the premiums. I don't have 
insurance. But if they sue me, all they can do is take everything I 
have. What kind of incentive is that for people to engage in the 
medical profession?
  As I said, the Finance Committee bill--1,522 pages--contains 20 lines 
of nonbinding sense-of-the-Senate language that merely expresses a view 
that ``health care reform presents an opportunity to address issues 
related to medical malpractice and medical liability insurance.'' Let 
me repeat that. This is the 1,500-page bill. In 1,500 pages, there are 
20 lines of sense-of-the-Senate language which says: ``Health care 
reform presents an opportunity to address issues related to medical 
malpractice and medical liability insurance.''
  I am not making that up. I am not making it up. It surely does 
present an opportunity to address issues related to medical malpractice 
reform. However, the other side passes on such an opportunity. It is a 
fact that just the narrowest specifics of medical liability reform 
could save $11 billion this year alone. As I said, there are some 
estimates which claim it could be as much as $200 billion when you look 
at the defensive medicine that is being practiced today.
  California addressed this precise problem in 1975 by passing 
legislation that capped jury awards for ``noneconomic'' damages such as 
pain and suffering in medical malpractice suits. Not only does this cap 
reduce the amount of damages but it has had the effect of deterring 
unwarranted lawsuits. Malpractice filings have fallen in almost every 
county in California, medical malpractice insurance premiums have 
dropped, and patient costs have lessened.
  In Texas, the trial lawyers had created such a problem for lawsuit 
abuse that patients didn't have access to doctors for several primary 
and specialty care services. Women couldn't find OB-GYNs. Several 
counties didn't even have neurosurgeons or anesthesiologists. Texas put 
in place a new structure that ensured patients got full compensation 
for their losses while at the same time curbing lawsuit abuse. In 
Texas, ``Patients are the ultimate beneficiaries of the tort reform 
measures passed in 2003,'' said Dan Stultz, M.D., president/CEO of the 
Texas Hospital Association.

       It's clear that hospitals are able to attract more 
     specialty physicians and offer new or expanded services that 
     have enhanced patients' access to care and saved lives.

  A survey conducted by THA--that is the Texas Health Association--in 
July 2008 found that 85 percent of hospitals are finding it easier to 
recruit medical specialists and subspecialists.
  We could replicate these success stories across America, but the 
other side has refused to consider medical malpractice amendments to 
the bills. Instead, the Democrats and the White House are attempting to 
buy the silence of American medical associations and doctors everywhere 
who support reform by increasing the deficit by $250 billion in 
Medicare physician payment increases.
  CBO estimates the medical malpractice reform would reduce the Federal 
deficit by $54 billion over the next 10 years. Others say it is as high 
as $200 billion. The question is, is there anyone who denies that 
medical malpractice reform would not reduce health care costs in 
America? Is there anyone? Of course not. This bill is ample testimony 
of the influence of the trial lawyers of America on this body. We 
should be ashamed.
  Talk is cheap. This issue requires real leadership. I believe the 
President needs to stand by his word and put forward real medical 
malpractice reforms rather than simply request applications for 
demonstration grants. I hope the President will demonstrate a 
willingness to listen and a willingness to reach a bipartisan agreement 
on this important issue. Patients, doctors, hospitals, and taxpayers 
need action.
  We are going through an interesting process. Mr. President, 1,522-
page and 622-page bills are being merged behind closed doors with a 
handful of elected representatives, leaving out not only everyone on 
this side of the aisle and most of the people on that side of the 
aisle, but the American people are being left out of this process. The 
American people are getting more and more angry. I don't think this 
will go over well with the American people. In fact, I think they will 
steadfastly reject it.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. Gillibrand). The clerk will call the 
roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CORKER. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Tennessee is recognized.
  Mr. WICKER. Madam President, do you know how long I have at this 
moment to speak to health care?
  The PRESIDING OFFICER. The minority has a total of 27 minutes 15 
seconds.
  Mr. CORKER. I will not take 27 minutes. Thank you for letting me know 
that.
  Madam President, I was on the Senate floor last week, which is a 
rarity for me. I spend very little time on this floor. Most of my time 
is spent in committee hearings. But I rise today to speak regarding the 
proposed Stabenow bill, a bill that is designed to pass on a $\1/4\ 
trillion in unfunded liabilities to future generations. As you know, we 
have been talking about health care reform in this body for some time. 
I have met numerous times with almost every official involved in health 
care reform and talked about how I thought it was unwise to look at 
taking $404 billion out of Medicare and not using that money to deal 
with the issue of SGR or the ``doc fix,'' the fact that physicians 
across this country are going to see a 21-percent cut in fees in the 
very near future, and what that would do to the Medicare population 
depending upon these services.
  I talked to the President on July 15 about how this body and the 
House were putting together pieces of legislation that did not make 
sense. I urged the President to use a responsible approach as it 
relates to health care reform. I have met with the chairman of the 
Finance Committee, the distinguished Senator from Montana, numerous 
times to talk about the Ponzi scheme that is being created by the 
Finance Committee in looking at how we finance something that is going 
to be a part of our citizens' lives for years to come and certainly a 
tremendous strain on the American budget.
  I have been told from day one that in fact we were going to put 
together a health care reform bill that will be paid for. I think most 
people know now the way that is being looked at is we are going to take 
$404 billion out of Medicare, which is an insolvent program, and 
leverage a new entitlement program--something the people of Tennessee 
do not believe makes much common sense. I know you are aware of the

[[Page S10540]]

fact that in addition to trying to solve this problem by taking money 
from an insolvent program, we also are planning to pass what 
Tennessee's Governor has called the mother of all unfunded mandates; 
making States, if you will, increase their Medicaid rolls at their 
expense so we in Washington can say we have reformed health care.
  But I have to say one of the most sinister moves I have seen take 
place in my 2 years and 10 months being in the Senate is the Stabenow 
bill. The Stabenow bill seeks to say we are going to deal with SGR, 
that we are going to deal with our obligation in Medicare to pay 
physicians at least the rates they are making today. We are going to 
pass on a $\1/4\ trillion bill to future generations in order to get 
support from physicians across our country.
  I talked to physicians in our State this weekend, a meeting at 
Tennessee Medical Association--the American Medical Association was on 
the line--and I was shocked at the response. Today the Hill cited a 
meeting where Senator Reid and others met with physicians in order to 
buy their support. I know we all know the selling of one's body is one 
of the oldest businesses that has existed in the history of the world. 
So the AMA is now engaged in basically selling the support of its body 
by leveraging--by throwing future generations under the bus, by in 
essence urging that we as Congress pass this week a $\1/4\ trillion 
spending bill, unpaid for. If we would do that, we might get their 
support in health care reform.
  I have to tell you, I have never witnessed something more sinister 
than the Stabenow bill. It is my hope that this week Senators on both 
sides of the aisle will come together and realize we have to graduate.
  We talk fondly about the ``greatest generation,'' our parents and 
others, who did so much in the way of sacrificing for this country to 
make sure that generations who came after had a better way of life. I 
am sad to say that--while I consider it the greatest privilege of my 
life to serve in this body, and I thank the citizens of Tennessee for 
allowing me this lease, this 6-year lease to serve in this body to try 
to conduct myself in a way that will put our country's long-term 
interests first--I am sad to say I serve during what I would call the 
``selfish generation.'' The political leadership we have today, of 
which we are a part, no doubt embodies the most selfish policies this 
country has seen in its history. There is no question that is the case; 
that for short-term political gain, in order to make some constituents 
happy, in order to give people what they want with no sacrifice, we are 
willing to throw future generations under the bus.
  It is my hope, this week even, this body will graduate from that 
selfish existence, doing things we know absolutely are undermining the 
future of this country, and that we will come together and look at this 
legislation in the appropriate way. I hope there will be Senators on 
both sides of the aisle that revolt at the majority leader's push to 
purchase the support of physicians all across our country by, in 
essence, creating legislation that puts our country another $\1/4\ 
trillion in debt.
  Madam President, I wanted to say this is not at all what the 
President said he would do. This President has said he would offer 
health care reform that balanced the budget. The American people 
understand by doing what the Stabenow bill seeks to do this week, that 
is absolutely not true. This administration absolutely is not living up 
to the commitment it has given the people of this country.
  This body needs to stand up and do what is right. I hope we will do 
that this week. I hope we will defeat the Stabenow bill as it now has 
been introduced. I hope we will work together to do those things that 
are responsible.
  I absolutely agree physicians around this country do not need to take 
a 21-percent cut. I have probably been the most outspoken person on 
that issue in the Senate since I came here. But what we need to do is 
balance our resources, not continue to do things we think make sense on 
one hand to the detriment of future generations. It is my hope this 
will be embodied as part of the overall health care reform package.
  This gets to my point I have been making on this floor and in 
committees and other places for months; that is, it makes absolutely no 
sense to use $404 billion out of Medicare to finance health care reform 
and not deal with SGR. I hope other Senators will join me in revolting 
against this most sinister act that, hopefully, will not come to 
fruition this week.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded the call the roll.
  Mr. ENSIGN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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