[Congressional Record Volume 155, Number 152 (Tuesday, October 20, 2009)]
[Senate]
[Pages S10540-S10542]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           HEALTH CARE REFORM

  Mr. ENSIGN. Madam President, I rise today to discuss why meaningful 
medical liability reform must be included in the health care reform 
package. Americans spend far more on lawsuits than any other country, 
and more than twice as much as all countries except for one.
  According to a recent study conducted by the Tillinghast-Towers 
Perrin Group, the direct cost of health care lawsuits is $30 billion 
per year. These costs are multiplied by the indirect costs of lawsuits, 
especially doctors ordering costly tests out of fear of being sued.
  Estimates of wasted money spent on unneeded tests range from over 
$100 billion each year to nearly $250 billion annually. In a 2006 
article in the New England Journal of Medicine, it suggests that as 
much as 40 percent of medical liability lawsuits are frivolous.
  Medical liability insurance premiums are threatening the stability of 
our Nation's health care system. These rates are forcing many 
physicians, hospitals, and other health care providers to move out of 
high liability States, limit the scope of their practices, and some 
even to close their doors permanently. This crisis is affecting more 
and more patients. It is threatening access to reliable, quality health 
care services.
  I have a good friend from Nevada who practices obstetrics. In his 
practice he specializes in high-risk pregnancies. Because of medical 
liability problems that we have seen in the past several years, his 
insurance company limits the number of high-risk pregnancies in which 
he can assist.
  If you are a woman and you are pregnant with a high-risk pregnancy, 
it would seem to me you would want the doctors who specialize in high-
risk pregnancies to see you. This only makes sense. However, because of 
the medical liability crisis we are facing in this country, the best of 
the best are limited in the number of cases they can handle.
  Because of the unaffordable medical liability insurance premiums, it 
is now common for obstetricians to not deliver babies and for other 
specialists to no longer provide emergency calls or provide certain 
high-risk procedures.
  Ask yourself this question: What if I were in need of an emergency 
procedure? What if I were the woman who had a high-risk pregnancy and 
could not find a specialist to provide me with the health care I 
needed?
  The medical liability crisis is threatening patient access to 
reliable, quality health services all across America. Additionally, 
costly medical liability premiums have forced some emergency rooms to 
shut down temporarily in recent years.
  In my home State of Nevada, our level 1 trauma center was closed for 
10 days in 2002. This closure left every patient within a 10,000-
square-mile area unserved by a level 1 trauma center.
  Unfortunately, a gentleman by the name of Jim Lawson was one of those 
in need of a trauma unit at that time. Jim lived in Las Vegas and was 
just 1 month shy of his 60th birthday. He had recently returned from 
visiting his daughter in California. When he returned, he was injured 
in a severe car accident. Jim should have been taken to the University 
Medical Center's level 1 trauma center. Unfortunately, it was closed.
  Instead, Jim was taken to another emergency room where he was 
stabilized and then transferred to Salt Lake City's trauma center. 
Tragically, Jim never made it that far. He died that day due to cardiac 
arrest caused by blunt force from physical trauma.
  Why was Nevada's only level 1 trauma center closed that day? Due to 
the

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simple fact that doctors could not afford the medical liability 
insurance premiums, and there were not enough doctors to provide the 
care.
  Ultimately, the State had to step in and take over the liability to 
reopen the trauma center. Our State has caps on how much someone can 
sue for, so medical liability insurance is affordable.
  More than 35 percent of the neurosurgeons have altered their 
emergency or trauma call coverage because of the medical liability 
crisis. This means patients with head injuries or who are in need of 
neurosurgical services must be transferred to other facilities, 
delaying much needed care.
  Doctor Alamo of Henderson, NV, brought another example of this 
problem to my attention. Doctor Alamo was presented with a teenager 
suffering from myasthenia gravis. She was in a crisis and in need of 
immediate medical treatment. Because of the medical liability 
situation, there was no emergency neurologist on-call to assist this 
young woman.
  Dr. Alamo called several neurologists in the area and none of them 
wanted to take her case because of the medical liability situation. So 
Dr. Alamo had the young woman transported all the way to California by 
helicopter to receive the medical care she so desperately needed.
  These kinds of situations should not happen and should not be forced 
to happen because of the medical liability crisis we face in America. 
Stories such as these are all too common across our country.
  To address the growing medical liability crisis in my home State of 
Nevada, the State enacted legislation that includes a cap on 
noneconomic damages and a cap on total damages for trauma care. Several 
other States have enacted similar reforms.
  This should not be a Republican or a Democratic issue. Simply put, 
the current medical liability crisis means patients cannot find access 
to care when they need it most in many areas.
  Without Federal legislation, the exodus of providers in the practice 
of medicine will continue, and patients will find it increasingly 
difficult to obtain needed care. As we work on comprehensive health 
care reform, one of our primary goals must be to enact meaningful 
medical liability reform to help patients access care.
  As you know, President Obama recently addressed the entire Congress 
on health reform. During his speech he said:

       I do not believe malpractice reform is a silver bullet, but 
     I have talked to enough doctors to know that defensive 
     medicine may be contributing to unnecessary costs.

  The President went on to say he asked Secretary Sebelius to move 
forward on demonstration projects in individual States to test ways to 
put patient safety first and let doctors focus on practicing medicine. 
Let's face reality. There is no doubt that defensive medicine occurs 
every day and that the costs to the health care system are staggering.
  As I mentioned earlier, tens if not hundreds of billions of dollars 
are wasted every year due to the practice of defensive medicine, 
largely in an attempt to avoid frivolous, junk lawsuits. Just think of 
how many uninsured patients we could cover with this money or how much 
cheaper the premiums would be for those who already have insurance.
  We must stop playing games and start doing something real to address 
important health care issues. Unfortunately, the Finance Committee bill 
that was voted on last week only includes a meaningless sense of the 
Senate on medical liability reform. That seems to parrot some of the 
President's remarks.

  Specifically, the language in the bill expresses the Sense of the 
Senate that States should be encouraged to develop and test 
alternatives to the current civil litigation system as a way of 
improving patient safety, reducing medical errors, encouraging the 
efficient resolution of disputes, increasing the availability of prompt 
and fair resolution of disputes and on and on and on. It is only a 
Sense of the Senate.
  The provision also expresses the sense of the Senate that Congress 
should consider establishing a State demonstration program to evaluate 
alternatives to the current civil litigation system.
  Let's be honest with ourselves. The Sense of the Senate is fluff. It 
ignores the substantial progress many States have already made with 
medical liability reform. Capping noneconomic damage awards has been 
highly successful in a number of States, such as Texas, and is 
something we should consider as part of health care reform.
  It is important for the Senate to consider capping punitive damages, 
limiting attorneys' fees, and providing that if multiple defendants 
contributed to a mistake, each defendant should pay only for the 
portion of the mistake for which they are responsible.
  So let's do the right thing. Let's enact real medical liability 
reform rather than a meaningless Sense of the Senate. As part of the 
health care debate, I will be offering a comprehensive medical 
liability reform amendment that sets reasonable limits on noneconomic 
damages while also providing for unlimited economic damages.
  My amendment is a responsible reform measure that includes joint 
liability and collateral source improvements, and limits on attorney 
fees according to a sliding scale. My legislation also includes an 
expert witness provision to ensure that relevant medical experts serve 
as trial witnesses instead of so-called professional witnesses who are 
too often used to further the abuse of the system.
  What happens today in our medical liability system is we have 
professional witnesses. Too often they are not a specialist in the 
field for which they are called to testify. Yet because juries do not 
know they are not a true expert, their testimony is allowed to 
influence liability claims.
  My amendment uses a Texas style of caps on noneconomic damages that 
provides a cap of $250,000 for a judgment against a physician or health 
care provider. In addition, the patient can be awarded up to $250,000 
for a judgment against one health care institution.
  Under Texas law, judgments against two or more health care 
institutions cannot exceed $500,000, with each institution not liable 
for more than half that. In total, noneconomic damages cannot exceed 
$750,000.
  Medical liability reform works, and it is already turning the tide 
against frivolous lawsuits and outrageous jury awards in some States. 
We have seen it in California, in Texas, and in my home State of 
Nevada, where the number of medical malpractice lawsuits has decreased 
dramatically.
  It has been a crisis driving doctors out of business for too long. It 
is time to protect patients across the country and to ensure access to 
quality health care.
  To illustrate my point, I would like to tell you about the success of 
medical liability reform in Texas. Over 16,000 new physicians have come 
to Texas since reform was enacted. The number of high-risk medical 
specialists in Texas is growing. Since 2003, Texas has added 650 
emergency room doctors, 350 heart doctors, over 200 obstetricians, 160 
orthopedic surgeons, and almost 60 neurosurgeons.
  These additions are not limited to urban Texas. The ranks of rural 
obstetricians have grown by almost 30 percent. Twenty-two rural 
counties have added an obstetrician and 10 counties have added their 
first OB. The statistics go on and on about the success in Texas.
  In addition to improvements in access to health care, charity care 
has also greatly expanded due to medical liability reform. Today, Texas 
hospitals are rendering $600 million more in charity care annually than 
they were just 6 years ago--$600 million more in charity care by 
hospitals than they were giving before medical liability reform.
  Liability savings have allowed hospitals to upgrade medical 
equipment, expand emergency rooms, expand outpatient services, staff 
Emergency Rooms 24/7 with high risk specialists, improve salaries for 
nurses, and launch patient safety programs.
  Without reforms and the attendant savings, these healthy developments 
would not have been possible. Lawsuit reform has been a magnet for 
attracting doctors and the funding mechanism to improve access to care 
and enhance patient safety.
  Physicians have seen a decrease in their medical liability premiums. 
Since 2003, physicians in Texas have saved, collectively, almost $600 
million in

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their liability premiums. Today, most Texas doctors are paying lower 
liability premiums than they were almost 10 years ago.
  All major physician liability carriers in Texas have cut their rates 
since the passage of the reforms and most of them by double digits.
  Texas's reforms prove lawsuit reform can improve access to care, 
expand the number of doctors and types of care hospitals are able to 
offer, and help reduce medical costs. According to a conservative 
estimate by the Congressional Budget Office, CBO, if Congress adopted 
only a few of the proposed lawsuit reforms, the deficit would decrease 
by $54 billion over 10 years.
  Madam President, $54 billion is how much it would save the 
government. To put this in perspective, this is twice as much as the 
Finance Committee plans to raise by taxing medical devices.
  During the Finance Committee markup, CBO's Director, Dr. Elmendorf, 
added that he felt the savings to the private sector would be 
approximately equal to the $54 billion saved by the government.
  Madam President, $54 billion to decrease the deficit, and the savings 
in the private sector is another $54 billion. Under this conservative 
estimation, which is substantially less than what third-party estimates 
have shown, enacting medical liability reform would save at least $100 
billion between the government and the private sector over 10 years.
  So why would the Democrats leave medical liability reform out? Well, 
they did put a Sense of the Senate in the Finance Committee bill. What 
are the savings from the Sense of the Senate to the private sector and 
the government? A big, fat zero.
  I will tell you why the Democrats left out medical liability reform. 
It is because it would hurt a Democrat special interest group: they are 
known as trial lawyers.
  Howard Dean, the former chairman of the Democratic National 
Committee, put it simply:

       [T]he reason why tort reform is not in the bill is because 
     the people who wrote it did not want to take on the trial 
     lawyers in addition to everybody else they were taking on, 
     and that is the plain and simple truth. Now, that's the 
     truth.

  I hope as the debate unfolds on the floor that many of my colleagues 
on the other side of the aisle will change their mind about enacting 
serious medical liability reform. My medical care access protection 
amendment is not a battle of right versus left. It is a battle of right 
versus wrong.
  This amendment is the right prescription for patients. We need to 
secure patient access to quality health care services when they need it 
the most. I urge my colleagues to adopt this commonsense amendment when 
it is brought to the floor.
  One last comment. We are going to be adding what is called the doctor 
fix. We are going to be adding the doctor fix unpaid for. It is $250 
billion over the next 10 years. I have been talking a lot about the 
Federal debt and what we are doing to our children. The other side 
wants to do what we all want to do around here; that is, make sure 
doctors' fees in Medicare are not cut because they are already paid at 
a very low rate, but they are doing that without honoring what they 
talked about known as ``pay-go''.
  We heard a lot about that during the campaign: We need to pay for 
everything. We cannot keep adding to the deficit. They accused this 
side of the aisle as being fiscally irresponsible. Now they are going 
to add $250 billion, take it off the table, and say: Well, it does not 
count. We are just going to add to the deficit $250 billion; that we 
can fix the doctors' payments, but we are not going to pay for it.
  I think this is pretty outrageous. That is why we are going to have 
amendments to attempt to fix what is happening to the doctors but to do 
it in a fiscally responsible way so we are not adding to our children's 
and our grandchildren's tax burden in the future.
  Madam President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCAIN. 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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