[Congressional Record Volume 155, Number 152 (Tuesday, October 20, 2009)]
[Senate]
[Pages S10560-S10561]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           HEALTH CARE REFORM

  Mr. KYL. Mr. President, the goal shared by all of us in the Senate is 
to make health care more affordable for Americans. Some ask why there 
hasn't been more support for medical liability reform--a popular, cost-
free measure that would unquestionably yield significant savings for 
patients and doctors. The most honest answer to that question came from 
former Vermont Governor and Democratic National Party Chairman Howard 
Dean, who said at an August townhall meeting in Virginia that medical 
liability reform has not been included in any of the Democrats' bills 
because they don't want to take on the trial lawyers.
  Protecting trial lawyers should not be the goal of health care 
reform. Their multimillion-dollar ``jackpot justice'' lawsuits drive up 
the cost of health care for everyone and are a big reason America's 
health care premiums have soared. Why? To help guard themselves from 
ruinous lawsuits, physicians must purchase expensive medical liability 
insurance, often at a cost of $200,000 a year or more for some 
specialists such as obstetricians and anesthesiologists.
  Because doctors pay for this insurance, patients do too. Hudson 
Institute economist Diana Furchtgott-Roth estimates that 10 cents of 
every dollar paid for health care goes toward the cost of doctors' 
medical liability insurance. Dr. Stuart Weinstein, the former president 
of the American Academy of Orthopedic Surgeons, has written about the 
extra cost of delivering a baby because of the high cost of these 
premiums. If a doctor delivers 100 babies a year and pays $200,000 for 
medical liability insurance, then ``$2,000 of the delivery cost for 
each baby goes to pay the cost of the medical liability premium,'' Dr. 
Weinstein wrote. So the costs of this insurance, passed on to patients, 
are real.
  An even bigger cost related to the threat of lawsuits is doctors' use 
of defensive medicine. The looming specter of lawsuits makes most 
doctors feel they have no choice but to take extra or defensive 
precaution when treating patients. A 2005 survey published in the 
Journal of the American Medical Association found that 92 percent of 
doctors said they had made unnecessary referrals or ordered unnecessary 
tests and procedures solely to shield themselves from medical liability 
litigation.
  To say the costs of defensive medicine are high is an understatement. 
Sally Pipes, president of the Pacific Research Institute, has found 
that defensive medicine costs $214 billion per year. A new study by 
PricewaterhouseCoopers reveals similar findings, pegging the annual 
cost at $239 billion. So you have the approximate amount here--$214 
billion and $239 billion. In any event, defensive medicine imposes a 
huge cost on the American public.
  Medical liability reform would work to bring down health care costs 
for patients and doctors. Among the ways to do it are capping 
noneconomic damage awards and attorney's fees and implementation of 
stricter criteria for expert witnesses who are testifying in these 
medical liability lawsuits. Trial lawyers frequently use their own 
experts to criticize the defendant doctor's practice. Well, the experts 
should have no relationship with or financial gain from the plaintiff's 
lawyer, and they should have real expertise in the area of medicine at 
issue.
  Some States, including my home State of Arizona, have already 
implemented medical liability reform measures with positive results.

[[Page S10561]]

  Dr. James Carland, who is president and CEO of MICA, which is 
Arizona's largest medical liability insurer, wrote a letter to me 
recently to describe some of the results he has seen from medical 
liability laws implemented in Arizona, specifically from two statutes--
one that reformed expert witness standards and another that imposed a 
requirement to inform the defendant, before trial, of expert witness 
testimony and to preview the substance of that testimony. Dr. Carland 
wrote that the enactment of these two statutes has ``reduced meritless 
medical malpractice suits'' in Arizona. Indeed, after their enactment, 
medical liability suits dropped by about 30 percent. That drop has been 
accompanied by a drop in medical liability premiums. Since 2006, MICA 
has reduced premiums and returned about $90 million to its members in 
the form of policyholder dividends.
  Another State that has had success with medical liability reform is 
Texas, which passed a series of measures in 2003, including limits on 
noneconomic damages and a higher burden-of-proof requirement for 
emergency room negligence. The number of doctors practicing in Texas 
has now skyrocketed, while costs have plummeted. It has been widely 
reported that since those reforms were implemented, medical licenses in 
Texas have increased by 18 percent and 7,000 new doctors have moved 
into the State.
  To reduce costs for both physicians and patients, Senator Cornyn and 
I have introduced legislation that would achieve medical liability 
reform by combining what has worked best in our two States, Texas and 
Arizona. We have taken the Texas stacked cap model for noneconomic 
damages and coupled it with expert witness statutes proven to limit the 
filing of meritless lawsuits.
  Republicans offered these kinds of liability reform amendments during 
the Finance Committee markup, but all of them were ruled out of order 
by the chairman of the committee. One of these amendments, recently 
scored by the Congressional Budget Office, would have saved the Federal 
Government $54 billion in health care costs over the next 10 years. My 
colleague from Nevada, Senator Ensign, asked the Director of the CBO if 
we could expect a similar approximate reduction in cost in the private 
sector, since about half of all medical costs are paid for by 
government and the other half in the private sector. Dr. Elmendorf, the 
Director of the CBO, agreed that we could expect approximately the same 
additional amount of savings in the private sector. That would be well 
over $100 billion.
  Medical liability reform enjoys heavy support among our bosses--the 
American people. According to a new Manhattan Institute paper, 83 
percent of Americans want to see it in any health care bill passed by 
the Congress. Despite this support and the concrete evidence that it 
would lower health care costs for doctors, patients, and the 
government, none of the health care bills being written by 
congressional Democrats tackle medical liability reform. It makes no 
sense that in debates about bringing down cost, this commonsense 
measure is ignored by the majority party. If we are serious about 
making health care more affordable, we must have medical liability 
reform. We will work for the American people, not the trial lawyers.
  Mr. President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CARDIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Kaufman). Without objection, it is so 
ordered.
  The Senator from Maryland is recognized.
  Mr. CARDIN. I thank the Chair.
  (The remarks of Mr. Cardin pertaining to the introduction of S. 1816 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. CARDIN. Mr. President, 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. DORGAN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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