[Congressional Record Volume 158, Number 48 (Thursday, March 22, 2012)]
[Extensions of Remarks]
[Pages E427-E428]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  PROTECTING ACCESS TO HEALTHCARE ACT

                                 ______
                                 

                               speech of

                        HON. SHEILA JACKSON LEE

                                of texas

                    in the house of representatives

                       Wednesday, March 21, 2012

       The House in Committee of the Whole House on the state of 
     the Union had under consideration the bill (H.R. 5) to 
     improve patient access to health care services and provide 
     improved medical care by reducing the excessive burden the 
     liability system places on the health care delivery system:

  Ms. JACKSON LEE of Texas. Mr. Chair, today we again are considering 
H.R. 5, the ``Help Accessible, Efficient, Low-cost, Timely Healthcare 
(HEALTH) Act.'' This bill is intended to change what some of my 
colleagues on the right believe to be a broken medical malpractice 
liability system.
  Quite paradoxically, many supporters of H.R. 5 are vocal opponents of 
the recently passed health-related federal law, the Affordable Care 
Act, whose anniversary we celebrate here tonight. It must be stated 
that many Americans celebrate with us and dine in good health--thankful 
that this Congress came together to pass health care 2 years ago.
  Foes of healthcare reform claim that the Commerce Clause of the U.S. 
Constitution, which gives the Federal Government some authority over 
states, was abused to pass the healthcare law. Under the rules of this 
Congress, House sponsors of any bill must explain Congress' 
constitutional authority to pass it.
  Rather ironically, H.R. 5's sponsor, Representative Phil Gingrey (R 
GA), cites the Commerce Clause as he tries to enact sweeping 
legislation that would completely overhaul State tort law and undermine 
hundreds of years of precedent.
  Yet, for my colleague, Mr. Gingrey, his statement represents a 
complete reversal from his position on the Affordable Care Act, which 
he has called ``the government takeover of our healthcare system.''
  Which might explain why my colleague Mr. Woodall from Georgia 
submitted an 11th hour amendment during the Rules Committee Hearing on 
the rule for H.R. 5, striking the Commerce Clause mention from this 
bill.
  The Woodall Amendment struck almost two pages from their bill--and 
reading it I can see why. It reads:

       Effect on Interstate Commerce.--Congress finds that the 
     health care and insurance industries are industries affecting 
     interstate commerce and the health care liability litigation 
     systems existing throughout the United States are activities 
     that affect interstate commerce by contributing to the high 
     costs of health care and premiums for health care liability 
     insurance purchased by health care system providers.

  This sounds strikingly similar to the arguments being advanced 
against the Affordable Healthcare Act. You cannot have your cake and 
eat it too. Either health care affects interstate commerce or it 
doesn't. Which is of course the impetus for the amendment offered by my 
colleague from Georgia. What a dilemma to find oneself in? Trying to 
gut the Affordable Healthcare Act, but using the precise argument 
supporting Congress' power to regulate.

  While the U.S. Constitution and Supreme Court interpretations do not 
identify a constitutional right to health care for those who cannot 
afford it, Congress has enacted numerous statutes, such as Medicare, 
Medicaid, and the Children's Health Insurance Program, that establish 
and define specific statutory rights of individuals to receive health 
care services from the government.
  As a major component of many health care entitlement statutes, 
Congress has provided funding to pay for the health services provided 
under law.
  The Commerce Clause of the U.S. Constitution empowers Congress ``to 
regulate Commerce with foreign Nations, and among the several States, 
and with the Indian Tribes.'' The Supreme Court developed an expansive 
view of the Commerce Clause relatively early in the history of judicial 
review.
  This power has been cited as the constitutional basis for a 
significant portion of the laws passed by the Congress over the last 50 
years, and it currently represents one of the broadest bases for the 
exercise of congressional powers.
  The Supreme Court accords considerable deference to a legislative 
decision by Congress that a particular health care spending program 
provides for the general welfare.
  If enacted, H.R. 5 would, among other things, cap the noneconomic 
damages that a plaintiff in a health care lawsuit could recover. It 
would also preempt existing State laws on proportionate liability, 
allow courts to reduce contingent fees, and abolish the collateral 
source rule.
  Studies and empirical research have shown that caps diminish access 
to the courts for low wage earners, like the elderly, children and 
women. In fact, the American Bar Association has studied this issue for 
over 30 years.
  If economic damages are minor and noneconomic damages are capped, 
attorneys are less likely to represent these potential plaintiffs. And 
frankly Mr. Speaker, many of these plaintiffs are not very likely to be 
able to afford access to legal services. The equal scales of justice 
would be tipped.
  Those affected by caps on damages are the patients who have been most 
severely injured by the negligence of others. These patients should not 
be told that, due to an arbitrary limit, they will be deprived of the 
compensation determined by a fair and impartial jury.
  The courts already possess and exercise their powers of remittitur to 
set aside excessive verdicts, and that is the appropriate solution 
rather than an arbitrary cap. Let the courts and judges do their jobs 
and judge.
  While the system may need some tweaks to help control ballooning 
medical malpractice insurance premiums paid by doctors, it is 
imperative that as we make changes, we are careful not to remove 
incentive for doctors to perform their duties at the highest standard. 
We must not leave victims of malpractice without viable recourse.
  The bill before us today is not new; in fact, it was first introduced 
in 2005. As written, the HEALTH Act would severely limit the ability of 
injured patients and their families to hold health care and medical 
products providers accountable.

  The bill is so broadly drafted that it would also limit remedies 
against the for-profit nursing home, insurance and pharmaceutical 
industries, and even against doctors who commit intentional torts, such 
as sexual abuse.
  Let's take a look at the collateral source rule which is the common-
law rule that allows an injured party to recover damages from the 
defendant even if he is also entitled to receive them from a third 
party. Common third parties, that is, collateral sources, include a 
health insurance company, an employer, or the government.
  To abolish the collateral source rule would be to allow or require 
courts to reduce damages by amounts a plaintiff receives or is entitled 
to receive from collateral sources.
  But there is a reason that the common law adopted it: it is 
preferable for the victim rather than the wrongdoer to profit from the 
victim's prudence, for example buying health insurance or the good 
fortune in having some other collateral source available.
  One commentator has also noted that, when the collateral source is 
the government, and the benefit it provides are future services, such 
as physical therapy, there is no guarantee that it will provide such 
services for as long as they are needed, as government programs may be 
cut back.
  Moreover, I don't many people willing to literally give an arm or leg 
for cash, but accidents happen due to negligence. Awards serve to 
educate the public but also serve the added purpose of providing a 
disincentive for bad actors.
  There are a number of reasons why this bill is flawed though, and not 
just the collateral source rule. Its scope is extremely broad and 
encompasses much more than necessary to simply protect doctors from 
high insurance premiums. It contains a sweeping preemption of state 
law. It reduces the statute of limitations on malpractice claims.
  It severely restricts contingency fees, discouraging lawyers from 
taking on malpractices

[[Page E428]]

cases. And it essentially strips victims of the right to bring a claim 
against drug and medical device manufacturers.
  According to a November 2010 study by the Office of Inspector General 
of the U.S. Department of Health and Human Services about 1 in 7 
patients experience a medical error, 44 percent of which are 
preventable.
  These errors cost Medicare $4.4 billion annually. U.S. Dept. of HHS, 
Office of the Inspector General, ``Adverse Events in Hospitals: 
National Incidence Among Medicare Beneficiaries'' (November 2010.)


              Amendment: Exemption for Irreversible Injury

  Because this bill is so overbroad, I introduced an amendment in the 
Rules Committee Hearing on H.R. 5, with my colleagues, Congressmen 
Quigley and Hank Johnson, which would have helped to close the wide 
gaps created by this bill.
  My amendment carved out an exemption for healthcare lawsuits for 
serious and irreversible injury. This would have exempted victims of 
malpractice that resulted in irreversible injury, including loss of 
limbs and loss of reproductive ability, from the $250,000 cap that H.R. 
5 imposes on non-economic damages.
  As individuals who are blessed to have all of our limbs and use of 
all of our senses, it is difficult to understand how challenging day-
to-day life can be for someone who lacks these things.
  However, it is nearly impossible to imagine the stress and challenges 
faced by someone who has suffered irreversible bodily injury because of 
the negligence of another.
  Imagine going to the hospital for minor pain and leaving with no 
limbs because of thoughtless mistakes made by the trained experts who 
are supposed to take care of you.
  For Connie Spears, a Texas woman from Judiciary Chairman Smith's 
district, this exact nightmare is a reality. As a patient who had dealt 
with blood clots in the past, and had a filter installed in one of her 
heart's main arteries, Ms. Spears went into a San Antonio hospital 
complaining of leg pain. She was made to wait, eventually treated, and 
was discharged.
  However, three days later, when her legs were the color of a cabernet 
and she was delirious, she called 911. When Spears, who was rendered 
unconscious, was treated at a different hospital, they determined that 
the filter in her artery was severely clotted and had caused tissue 
death in her legs, as well as kidney failure. Weeks later, Connie 
Spears regained consciousness, and learned that doctors had to amputate 
not one, but both of her legs in order to save her life.
  As a result of negligence by the emergency room doctors who initially 
treated Ms. Spears, she lost her legs, and nearly her life. To make 
matters worse, when she attempted to seek the aid of a lawyer to handle 
her case, she was unable to find an attorney to represent her. She was 
repeatedly told, ``You have a great case, but not in Texas.''
  In 2003, state lawmakers in Texas passed tort reform laws, similar to 
the one proposed today, that make it extremely difficult for patients 
to win damages in any health care setting, but especially emergency 
rooms. It caps damages at $250,000, like H.R. 5, and requires patients 
to prove that emergency room doctors acted with ``willful and wanton'' 
negligence--a near impossible standard to prove. A plaintiff would 
essentially have to show the medical professional or company had a 
vendetta against them to recover.
  This nightmare has also become a reality for Jennifer McCreedy, a San 
Antonio single mother who fell and severely injured her ankle and 
sought treatment at an emergency room. Despite the severity of the 
break, the bone in her ankle was never set, a common practice done to 
prevent excess swelling, and she was not seen by an orthopedic surgeon. 
She was sent home and told to wait until the swelling went down.
  However, the swelling did not go down, and a surgery that should have 
only taken one hour, took four. Because of the swelling, the surgeon 
had to slice her Achilles tendon, and wounds that refused to heal 
required grafts.
  To date, Ms. McCreedy has endured five surgeries and has been 
rendered permanently disabled, curbing her ability to work and provide 
for her family. As a result of the negligence of those emergency room 
doctors, Ms. McCreedy went from a hard working, financially secure 
mother and homeowner, to dodging creditors and nearly losing her home 
to foreclosure.
  For victims of malpractice who have suffered irreversible injury, 
like Connie Spears and Jennifer McCreedy, it is impossible to put a 
price tag on the stress and pain and suffering they have already 
endured.
  Furthermore, it is outrageous that we would attempt to pass a law 
that puts a cap on the future challenges they are sure to face. It is 
inhuman to neglect the emotional price paid by victims of egregious 
acts that result in such serious, irreparable harm.
  We should not deprive patients who have suffered injury as a result 
of one of these drugs or devices of the right to receive compensation 
from the manufacturer or distributor of such.
  As we strive to become a healthier, more competitive nation, we need 
all the outstanding doctors, nurses and other health care providers we 
can get. They must be unconstrained by excessive health care liability 
premiums. We also need our nation's students to be excited and 
encouraged to enter the life sciences without the fear of being crushed 
under the weight of excessive liability premiums.
  Placing caps on medical liability recovery does not necessarily lead 
to lower liability insurance premiums for doctors and health care 
providers. In fact, there is evidence that insurance companies have 
raised premiums in states like my home State of Texas and in California 
which use medical liability caps to reap an unearned profit at a time 
when health care lawsuits and the damages from those lawsuits were 
declining.
  If it is the intention of this House to pass legislation that will 
reform the system of medical malpractice liability in a sensible 
manner, then it is imperative that we strongly consider the amendments 
offered by myself and my Democratic colleagues last night.
  Let's not send a flawed bill to the Senate.
  Again, I would like to thank the Chairman and Ranking Member for 
their work on these bills--though I hold out hope that Members of the 
Judiciary Committee and this body could come together for the good of 
the American people.

                          ____________________