[Congressional Record Volume 155, Number 153 (Wednesday, October 21, 2009)]
[Senate]
[Pages S10589-S10590]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           HEALTH CARE REFORM

  Mr. KYL. Mr. President, I wish to talk this morning about the same 
health care issue the Senator from Kentucky just addressed. I think 
Republicans have always had a lot of very good alternatives to deal 
with two critical problems: No. 1, the rising costs of health care and, 
secondly, the problem of some uninsured in this country needing help to 
get that insurance. Unfortunately, our ideas have not been included in 
the legislation passed by the committees. In fact, when we have offered 
amendments to propose these alternative ideas, they have been rejected.
  One of the primary ways we know we can reduce costs is through the 
mechanism of medical malpractice reform. That deals with the problem of 
the jackpot justice system that currently is abused by trial lawyers 
where they file lawsuits, they get big recoveries or they force 
settlements, and the net result is two things which I spoke about 
yesterday.
  First of all, liability insurance premiums for physicians now consume 
about 10 cents for every health care dollar spent. If we had medical 
malpractice reform, we could reduce that. We wouldn't, obviously, get 
rid of it, but the cost for physicians would be significantly less.
  For example, we know some specialties, such as obstetrics, 
neurosurgery, and some others, including anesthesiology, for example, 
will frequently have annual liability premiums in the range of 
$200,000. That, obviously, is a cost that is passed on. When they bill 
patients, they have to cover the cost of their medical malpractice 
insurance.
  I mentioned yesterday a study by the former president of the American 
Academy of Orthopedic Surgeons, Dr. Stuart Weinstein. He has written 
about the extra cost of delivering a baby because, he said, if a doctor 
delivers 100 babies a year and pays $200,000 for medical liability 
insurance, $2,000 of the delivery cost for each baby goes to pay the 
cost of the medical liability premium. So we could reduce by $2,000 the 
cost of delivering a baby if we were able to pass meaningful medical 
liability insurance reform.
  The even bigger cost is defensive medicine--the kinds of things 
doctors do, not because they are necessary to take care of their 
patients, but because if they don't do them they might get sued and 
some expert will claim they should have had this extra test or done 
this extra procedure; and if they would have just done that, then maybe 
the patient would have been all right. So as a result, defensive 
medicine results in hundreds of billions of dollars of expenses every 
year.
  In fact, a 2005 survey published in the Journal of the American 
Medical Association found that 92 percent of the doctors said they had, 
indeed, made unnecessary referrals or ordered unnecessary tests just to 
shield themselves from this liability. How much does this potentially 
cost? I said hundreds of billions. Well, let me cite two studies.
  All of the studies I have seen are roughly within the same ballpark. 
They differ just a little bit. For example, Sally Pipes, who is 
president of the Pacific Research Institute, found that defensive 
medicine costs $214 billion a year. A new study by 
PricewaterhouseCoopers reveals similar findings, pegging the cost at 
$239 billion per year. Well, $214 billion, $239 billion, we can quibble 
about the amount; it is not insignificant. So when we are talking about 
well over $200 billion a year in defensive medicine, we know there is a 
big amount of money to be saved, and we could pass those savings on to 
the consumers of health care.

  Yesterday I cited the statistics from Arizona and Texas where both 
States have implemented medical liability reforms of different kinds, 
but both States have found significant reductions in insurance premiums 
for physicians, fewer malpractice cases filed, and, in the case of 
Texas, an infusion of a remarkable number of physicians into Texas 
because it is a more benign environment now in which to practice their 
profession.
  The reason I mention all of this is we have been talking about this 
for months now and not one of the Democratic bills contains medical 
malpractice reform. The reason is clear. Democrats are frequently 
supported by trial lawyers, and trial lawyers don't like medical 
malpractice reform. That is how they make a lot of money, so they don't 
want to see the reform. We ought to reform the system for the benefit 
of our constituents rather than to not do it in order to help trial 
lawyers.
  Again, the reason I mention this is because a bill we are going to be 
taking up later today, the so-called ``doc fix''--and that is a very 
bad name for it--is a bill that would deal with the formula under which 
doctors are compensated for Medicare. One of the things that has been 
reported in newspapers is that the American Medical Association will 
not push for medical malpractice reform if they are able to get this 
bill passed. I find that to be a very troubling fact because all of the 
physicians I know realize we need medical malpractice reform.
  Here is how the Washington Post editorialized it yesterday morning, 
and I am quoting:

       The so-called ``doc fix'' is being rushed to the Senate 
     floor this week in advance of

[[Page S10590]]

     health reform not because it has nothing to do with health 
     reform, but because it has everything to do with it. The 
     political imperative is twofold: To make certain that 
     Republicans don't use the physician payment issue to bring 
     down the larger bill--

  That is because of the fact that it would add to the deficit--

     and to placate the American Medical Association.

  The concern I have is that it doesn't help the physicians. All this 
legislation does is to say that the formula which has been in effect 
since 1997, but never adhered to by the Congress, will not be the 
formula that goes forward in the future, but it doesn't fix the payment 
problem. Every year, because the formula would result in huge cuts to 
physicians who take care of Medicare patients--and everybody agrees 
that is a bad thing--we say we are not going to pay attention to the 
formula. We are going to raise the doctors' reimbursements by a 
percentage point or a half percent or some modest amount.
  All this legislation does is to freeze physician payments for 10 
years--to freeze them--zero; not even any kind of cost-of-living 
increase. I guarantee that after 10 years, physicians not getting any 
kind of an increase at all are going to be hurting.
  I know what is going to happen, which is that physicians and groups 
such as the American Medical Association will have to come back to 
Congress every year and say they need to have some kind of a modest 
increase. Republicans want to be able to offer amendments on this 
legislation to provide for such modest increases. Incidentally, those 
modest increases would be offset--that is to say, the cost to the 
government would be offset--so that we wouldn't be adding to the 
deficit. It is very clear there is no new formula in place, no new 
formula has been proposed, so this legislation doesn't solve the 
problem. It simply says, well, we are not going to adhere to the 
formula in the future. Big deal. We have never adhered to it in the 
past. We are never going to adhere to it because it makes no sense. 
Everybody agrees with that. So what do we get out of this? Nothing. A 
freeze for 10 years is not a solution to the problem.
  I hope physicians don't see this as a solution as a result of, as I 
said, this having been reported in some of the media, so that they will 
decide not to push for medical malpractice reform because physicians 
know how important that is. I have just talked about how important it 
is.
  We need solutions to problems. One of the problems is we have 
increases in the costs of providing health care. One solution to that--
and we are talking about well over a couple of hundred billion dollars, 
as I indicated, from the studies I cited a moment ago. One solution to 
that is to tackle this problem of medical liability reform. Some 
States, probably about four or five, have done this, and they have 
demonstrated it can work.
  The President's approach is, well, let's have a study about it. Let's 
maybe have a demonstration project. We have some demonstration 
projects. One of them is Arizona and one of them is Texas, and they 
demonstrate that it works. Since the Federal Government has to pay 
about half of all of the cost of health care in the country because of 
Medicare, Medicaid, and veterans care and so on, the Congressional 
Budget Office says we, the Federal Government, could save ourselves $54 
billion if we had meaningful medical malpractice reform. We could 
expect the same amount for the private sector.
  The bottom line is, the bill we are going to be voting on later today 
doesn't solve any problem. It does not help the physicians. One way we 
can help not just physicians but patients by reducing their cost of 
care is accepting some of the Republican alternative ideas that have 
been proposed, starting with medical liability reform.

  Mr. President, I yield the floor to the Senator from Tennessee.
  The ACTING PRESIDENT pro tempore. The Senator from Tennessee.

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