[Congressional Record (Bound Edition), Volume 147 (2001), Part 12]
[Extensions of Remarks]
[Page 16858]
[From the U.S. Government Publishing Office, www.gpo.gov]



                   BIPARTISAN PATIENT PROTECTION ACT

                                 ______
                                 

                               speech of

                       HON. W.J. ``BILLY'' TAUZIN

                              of louisiana

                    in the house of representatives

                        Thursday, August 2, 2001

       The House in Committee of the Whole House on the State of 
     the Union had under consideration the bill (H.R. 2563) to 
     amend the Public Health Service Act, the Employee Retirement 
     Income Security Act of 1974, and the Internal Revenue Code of 
     1986 to protect consumers in managed care plans and other 
     health coverage:

  Mr. TAUZIN. Mr. Chairman, the Ganske-Dingell bill does not guarantee 
a right to sue for patients. Indeed, the bill makes it difficult for 
states to create or maintain a cause of action because such causes of 
action must meet pages of very complicated requirements. A State could, 
in the future, pass a law consistent with these many requirements. 
Until they did so, however, patients who were harmed may have no 
recourse for damages at all. The preemption language under Ganske-
Dingell is so fraught with ambiguity that it may take decades to 
determine whether patients in certain states even have a cause of 
action and can hold HMO's responsible for negligence.
  Professor Larry Alexander, Warren Distinguished Professor at the 
University of San Diego Law School, has reviewed the bill and 
concludes: ``. .. state common law is quite unlikely to contain these 
specific features, and state judges are unlikely to possess the 
authority to read them without legislative assent . . . Professor 
Alexander also states that the literal reading of the provisions of the 
bill appear to be ``. . . an attempt to directly impose Federal 
conditions on state law . . .'' without offering state governments a 
choice. Professor Alexander states such a reading would be a 
Constitutional problem.
  Professor A.J. Bellia of Notre Dame Law School in a letter dated 
August 1, 2001 reviewed the Ganske-Dingell approach and stated: ``. . . 
H.R. 2563 raises substantial constitutional issues. I anticipate, that 
if enacted, these provisions will spawn significant constitutional 
litigation . . . . He cites several courts and several reasons for 
these findings.
  The Ganske-Dingell approach also forces employers, plans and issuers 
to follow conflicting definitions, rules, and standards of conduct. The 
resulting uncertainty and litigation will not help patients, will drive 
costs, and will increase the number of uninsured.
  As drafted, the Ganske-Dingell bill also preempts State law to reduce 
liability for negligent or reckless conduct by health professionals and 
treating hospitals. That means reducing the liability for health care 
professionals who issue faulty diagnoses, leave an instrument in during 
surgery, or inject the wrong medicine. Indeed, virtually any medical 
error would be shielded from a state cause of action where employers or 
the plan seek recovery or contribution.
  The Department of Justice (DOJ), Congressional Budget Office (CBO) 
and Congressional Research Service (CRS) all confirm this 
interpretation. A DOJ memorandum dated July 25, 2001 states: ``. . . 
This provision is broadly drafted to apply to claims arising out of 
`any care provided' or `any treatment decision made' . . . as such, it 
would appear to foreclose, for example, a contribution or indemnity 
claim by a group health plan or health insurance issuer for negligent 
treatment by a physican or hospital which was the sole cause of a 
patient's injury. . .'' (emphasis added)
  The Congressional Budget Office Cost Estimate of H.R. 2563 states ``. 
. . It would prevent any recovery by plans from doctors or hospitals 
resulting from medical malpractice. . . '' (emphasis added). A 
memorandum from the Congressional Research Service further confirms 
this point. It says: ``. . . This language appears to supersede all 
causes of action under state law, arising from state statutory or 
common law . . .  Presumably, causes of action for recovery, indemnity 
or contribution arising from a contract between the health plan and the 
physician would also be superseded . . . '' (emphasis added)
  The CRS memorandum continues: ``. . . Based on this preemption, 
health plans or health insurance issuers providing health insurance 
coverage would not be able to seek contribution from a treating 
physician or hospital for damages incurred as a result of [a] cause of 
action brought against the plans pursuant to the provisions of this 
legislation or under common law based upon the quality of care 
received. Nor would they be able to recover costs incurred in the form 
of benefits paid due to the negligence of a treating health care 
professional or hospital. . .  (emphasis added)
  It is for these and other policy reasons that I support the Norwood 
Amendment as a better liability proposal.

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