[Congressional Record (Bound Edition), Volume 149 (2003), Part 12]
[Senate]
[Pages 16927-16949]
[From the U.S. Government Publishing Office, www.gpo.gov]




             PATIENTS FIRST ACT OF 2003--MOTION TO PROCEED

  Mr. FRIST. Mr. President, I ask unanimous consent that the Senate now 
proceed to the consideration of Calendar No. 186, S. 11, the Patients 
First Act of 2003.
  The PRESIDING OFFICER. Is there objection?
  Mr. DURBIN. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. FRIST. Mr. President, with that objection, I now move to proceed 
to S. 11. I understand that Members on the other side of the aisle are 
prepared to debate the motion itself. The majority whip, Senator 
McConnell, is prepared to open our debate on this issue as well.
  It would be my intent later today to file a cloture motion on the 
motion to proceed to this medical liabilities reform bill. This vote 
would then occur on Wednesday of this week. I look forward to the very 
important debate on this truly national crisis, and I encourage Members 
who want to speak to come to the floor today. We will be debating this 
legislation today as well as tomorrow. We encourage Members to come to 
the floor today.
  I yield the floor.
  The PRESIDING OFFICER. The distinguished Senator from Kentucky is 
recognized.
  Mr. McCONNELL. Mr. President, there is perhaps no more vexing 
challenge confronting this Congress than improving the quality and 
affordability of health care for all our citizens.
  Just a few weeks ago, this Senate took historic action to strengthen 
and modernize Medicare by providing seniors new choices and adding a 
prescription drug benefit. During the past year, this Senate passed 
legislation to provide new resources to the scientists at the National 
Institutes of Health and to strengthen our Nation's defenses against 
the threat of bioterrorism.
  While we shouldn't minimize the importance of these initiatives, the 
Senate has not addressed one of the most fundamental problems limiting 
American access to quality health care; that is, reforming our Nation's 
flawed medical liability system.
  Our current medical liability system encourages excessive litigation, 
drives up costs, and is literally scaring doctors out of the medical 
profession. All too often, these lawsuits result in exorbitant 
judgments that benefit personal injury lawyers more than they 
compensate injured patients. I am pleased that the Senate will soon 
consider legislation, the Patients First Act, authored by Senator 
Ensign, to address many of these shortcomings.
  As we debate this legislation over the next several days, Members 
will use some complex actuarial terms such as ``combined loss ratios,'' 
``asset allocation,'' and ``the McCarran-Ferguson Act'' to illustrate 
their points. While they may be important, I believe it is more 
important that we recognize this is a real crisis facing real families.
  Let's look first at this photo of Tony and Leanne Dyess with their 
family. This picture was taken prior to July 5 of last year. On that 
evening, Tony was critically injured in a car accident while on his way 
home from work in Gulfport, MS. Immediately after the crash, Tony was 
rushed to Garden Park Hospital, right there in Gulfport, suffering from 
serious brain injuries that required immediate medical attention.
  Tragically, nearly all of the specialists capable of treating this 
type of head injury had left Gulfport because of the medical liability 
crisis and none was available to treat Tony Dyess.
  Tony had to be airlifted to University Medical Center in Jackson, MS. 
Six excruciating hours passed before he received the surgery he needed 
to relieve the swelling in his brain. As Dr. Frist can explain to us, 
every minute is critical when treating patients who have experienced 
serious brain trauma.

[[Page 16928]]

  While the doctors in Jackson saved Tony's life, they were unable--
unable--to prevent him from suffering permanent brain damage. As a 
result, Tony will require constant care and medical attention for the 
rest of his life.
  The Senate was fortunate to hear from Leanne Dyess when she testified 
before a joint HELP-Judiciary Committee hearing on the medical 
liability crisis earlier this year. I thank her for her willingness to 
share her story with the American people and ask unanimous consent that 
her testimony be printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. McCONNELL. Mr. President, let's consider the case of Melinda 
Sallard. This is a picture of Melinda Sallard and her daughter. They 
live in Arizona.
  In 2002, the administrators at Copper Queen Community Hospital in 
Bisbee, AZ, were forced to close their maternity ward because their 
doctors' insurance premiums had risen by 500 percent.
  A few months later, Melinda awoke at 2 o'clock in the morning with 
sharp labor pains. Since her local hospital stopped delivering babies 
because of the medical liability crisis, Melinda and her husband were 
faced with a 45-mile drive to Sierra Vista in order to reach the 
nearest hospital with a maternity ward. As many of us who are parents 
know, babies do not always wait for the hospital, particularly when 
that hospital is almost an hour away.
  Melinda gave birth to her daughter in a car on a desert highway 
heading to Sierra Vista. When the newborn was not breathing, her 
levelheaded mother cleared the child's mouth and performed CPR. After 
resuscitating the infant, Melinda wrapped her in a sweater, and the new 
family completed the journey to Sierra Vista. Thankfully, both mother 
and daughter survived. However, it is unacceptable that expectant 
mothers should be forced to drive past a perfectly good hospital and 
drive 45 miles through the desert to deliver a child.
  Unfortunately, these are not isolated anecdotes but just a few 
examples of the impact runaway litigation is having on patients in 
every corner of our country. Patients across America--from the Pacific 
Northwest to the Southeast, from New England to the desert Southwest--
are facing a medical liability crisis.
  As many of our colleagues will recall, I offered an amendment to the 
generic drug legislation just last year that included some very modest 
medical liability reforms. During that debate, I called our colleagues' 
attention to this map produced by the American Medical Association. At 
that time, the AMA had identified 12 States, those States that are 
depicted on the map in red--this was a little over a year ago--as 
experiencing a medical liability crisis. The States shown on the map in 
yellow were ones at that time with significant problems which were 
nearing a crisis.
  As I am about to illustrate, the situation has grown worse in the 
past year. The AMA reports there are now 19 States experiencing a 
medical liability crisis, with the addition of Wyoming just today.
  Unfortunately, my own State of Kentucky is one of those States now 
facing a medical liability crisis. Knox County Hospital in 
Barbourville, KY, which is in the eastern part of our State, recently 
announced it would no longer deliver babies because its doctors could 
no longer handle the malpractice premiums. The hospital averaged about 
200 deliveries per year. These mothers-to-be will now be forced to 
travel an additional one-half hour through Kentucky's mountain roads to 
the next closest hospital.
  Not surprisingly, these expectant mothers are upset. One mother-to-be 
told the Lexington Herald Leader: ``To have to see someone new at the 
last moment is just horrible. You develop a close bond with your 
doctor, almost like family. You don't want a stranger.''
  In another part of our State, Dr. Susan Coleman, up in Danville, was 
forced to give up delivering babies after her premiums doubled from 
$44,000 a year to $105,000 a year--even though she has never lost a 
jury verdict or paid an out-of-court settlement. More than two-thirds--
84 of 120--of Kentucky's counties have either one or no obstetricians 
who will deliver babies.
  This crisis has hit Kentucky's teaching hospitals as well. These 
valuable institutions not only train our future doctors, they also 
tackle many of the most difficult medical procedures. Earlier this 
year, the University of Louisville Obstetrics Department was just days 
away from closure because it could not find insurance for its doctors.
  As I travel through Kentucky, I am approached frequently by doctors 
who plead for reforms we are proposing today. Some have already packed 
up their practices and moved across the river to Indiana, which has 
medical liability reforms. Many more doctors are thinking about 
following them.
  Kentucky is now one of these States facing a medical liability 
crisis. So, Mr. President, Kentucky now goes from yellow to red.
  Let's talk about Connecticut. This year, 28 OB/GYNs in Connecticut 
announced they could no longer afford to deliver babies because of 
rising medical liability premiums. According to the Connecticut State 
Medical Society, each doctor would deliver approximately 100 babies a 
year. This means that 2,800 Connecticut patients must now find new 
doctors because of the medical liability crisis.
  Dr. Sally Crawford of Norwich, CT, provides a compelling example. She 
retired from medicine this year at age 55 because she could no longer 
afford her medical liability premiums. She had never been sued, but her 
liability insurance premiums became so expensive, they cost her 
$124,000 a year.
  Dr. Jose Pecheco's insurer stopped offering medical liability 
insurance, so he shopped around for a new policy. When he learned that 
a new policy with ``tail'' coverage would cost him $150,000 a year, he 
did what Dr. Crawford did; he retired.
  Why are insurance premiums for doctors rising? They are rising 
because the size of jury verdicts and settlements is rising at an 
alarming rate. According to the Hartford Courant, the average payment 
made of one of the State's major insurers to resolve claims increased 
from $271,000 in 1995 to $536,000 in 2001. When so many experienced 
physicians such as these take early retirement or curtail services, it 
is not surprising that the AMA has now designated Connecticut a crisis 
State. So Connecticut goes from yellow to red. Connecticut is now a 
State in crisis.
  Let's take a look at North Carolina. Time magazine recently featured 
the story of Dr. Mary-Emma Beres, a family practitioner in Sparta, NC, 
who had always loved delivering babies. However, when she learned her 
malpractice premiums were about to triple, she was forced to give up 
her calling. Now Sparta is left with one obstetrician for difficult 
cases, and some women who need C-sections must now take a 40-minute 
ambulance ride to the next nearest facility.
  We have heard several examples about escalating premiums that cause 
some doctors to retire early, but what impact is the medical liability 
crisis having on doctors at the beginning of their careers? The same 
article in Time features the story of Martin Palmeri, a medical student 
at East Carolina University. He had his heart set on a career in 
obstetrics, but after witnessing a medical liability trial in North 
Carolina, he decided ``the risks of the specialty were greater than the 
rewards.'' He is now considering a less risky specialty.
  The crisis has hit North Carolina hospitals particularly hard. 
According to McNeary Healthcare Services, small rural hospitals in 
North Carolina experienced an average increase in liability premiums of 
180 percent in 2002 alone.
  The crisis is impacting patient access to emergency care in Cabarrus 
County. The county's Level III trauma center was facing possible 
closure this year when its 17-member emergency medical group was faced 
with an 88-percent increase in premiums for reduced coverage. It is no 
wonder that North Carolina is facing a medical liability crisis,

[[Page 16929]]

and North Carolina now moves from a yellow State to a red State, a 
State in crisis.
  Like Kentucky and North Carolina, the AMA has recently added Arkansas 
to its list of States facing a medical liability crisis. In Ashdown, 
AK, the emergency room at the Little River Memorial Hospital was in 
danger of closing when it could not find an insurance carrier. It was 
only able to stay open after obtaining new insurance coverage at a 300-
percent increase in premiums. According to a recent survey by the 
Arkansas Medical Society, 90 percent of doctors have practiced 
expensive and often unnecessary defensive medicine; 80 percent of 
doctors are less willing to perform high-risk procedures; 71 percent of 
physicians surveyed in Arkansas stated they were considering early 
retirement; and one-third of Arkansas physicians are considering moving 
their practices.
  Doctors in Arkansas who want to care for the State's frailest 
patients are in a particularly difficult bind. There are currently no 
insurers writing new policies for doctors who treat nursing home 
patients, and those doctors who have coverage report a whopping 1,000-
percent increase. Let me say that again: There are currently no 
insurers, none, in Arkansas writing new policies for doctors who treat 
nursing home patients, and those doctors who have coverage report a 
whopping 1,000-percent increase.
  Why? Jury awards and settlements are rising faster than insurers can 
raise their premiums to meet these increased costs. From 1992 to 2000, 
the amount that doctors and insurers paid out in jury verdicts and 
settlements tripled, but then it doubled again in 2001. In that year, 
for every $1 an Arkansas medical liability insurer received in 
premiums, it had to pay out $1.61 in jury awards and settlements. 
Arkansas, as you can imagine, is now confronting a medical liability 
crisis. So Arkansas moves from a yellow State, which indicates a State 
with problems, to red, indicating a State in crisis.
  Next we turn north to Missouri. This April, St. Joseph Health Center 
in Kansas City was forced to close its trauma center when its 
neurosurgeons decided to leave. Last April, Overland Park Regional 
Medical Center in suburban Kansas City closed the only trauma center 
ever in suburban Johnson County, KS. This means residents of southern 
Kansas City and the millions of motorists who pass through on I-35 or 
I-70 have limited access to a trauma center in an emergency. Now 
critically injured patients in Kansas City must be transported to 
either the University of Kansas Medical Center or the Medical Center of 
Independence, but even that may not be for long. Because of exorbitant 
medical liability premiums, the two neurosurgeons who service the 
Independence Medical Center are packing up their practice and moving on 
November 1.
  But this crisis isn't limited to just Missouri's major cities. In 
May, Dr. Julie Wood was forced to close her rural family practice in 
Macon because she could no longer afford her $71,000 malpractice 
premium while treating Medicare and Medicaid patients. Macon's other 
two family doctors recently stopped delivering babies in order to 
reduce their insurance premiums, making the nearest point of care for 
expectant mothers nearly an hour away.
  All of that explains why Missouri unfortunately is now facing a 
medical liability crisis and moves from a State with problems to a 
State in crisis.
  Let's look across the Mississippi River to Missouri's neighbor, the 
great State of Illinois.
  Time magazine recently ran a cover story entitled ``The Doctor is 
Out,'' highlighting the plight of Dr. Alexander Sosenko of Joliet, IL, 
and his patients.
  Dr. Sosenko's insurance carrier recently dropped him and his 
cardiology partners, even though the practice had never lost or settled 
a single malpractice case. The one offer of insurance the practice 
received would have raised their annual premiums from $14,000 per 
doctor to nearly $100,000 per doctor.
  Dr. Sosenko and his colleagues are trying to determine their next 
step, but he is clearly worried about his practice's 6,000 patients. He 
told Time: ``We doctors can move, but our patients can't.''
  Dr. Sosenko's cardiology practice is not the only one in Joliet 
coping with a medical liability crisis. The town is quickly losing all 
of its neurosurgeons.
  In February, two Joliet neurosurgeons gave up performing brain 
surgery, leaving the city's two hospitals without full-time coverage 
for head trauma cases. The situation may soon get worse for Joliet's 
patients. The town's last remaining neurosurgeon must now pay $468,000 
a year for insurance and is considering leaving the State. If seriously 
injured patients need the trauma services of a neurosurgeon, then they 
will have to travel another 45 minutes to the next nearest trauma 
center.
  These problems are not confined to Joliet. The Chicago Tribune 
reports that for specialties such as neurosurgery and obstetrics, 
medical liability rates have increased by more than 100 percent and 
could climb even higher later this year. So it is no wonder the AMA has 
now observed that Illinois is experiencing a medical liability crisis.
  Mr. President, I am sorry to say that this week the AMA added a 19th 
State to its list of States facing a medical liability crisis. Dr. 
Willard Woods of Wheatland, WY, was forced to give up delivering babies 
earlier this year. Throughout his career, he delivered 2,500 babies, 
which is most of the young people within Wheatland and the surrounding 
communities.
  Dr. Woods described his situation in the Washington Post. He said:

       I love delivering babies. I really love delivering the 
     babies of women I delivered a couple of decades ago. And I 
     know this community needs an obstetrician. But you can't 
     practice without insurance. And I can't get coverage for 
     deliveries anymore.

  Since Dr. Woods stopped delivering babies, mothers with complicated 
pregnancies must now make the 3-hour round trip to Cheyenne. Sadly, 
Wyoming, too, is now facing a medical liability crisis.
  So why are premiums rising so quickly that good physicians such as 
Dr. Coleman, Dr. Crawford, and Dr. Woods are forced to give up their 
practices? The primary reason is rapidly increasing jury awards.
  As this chart clearly shows, the Jury Verdict Research Service 
reports that the median award made by a jury has more than doubled 
between 1996 and 2000. As you can see, between 1996 and 2000 the median 
jury awards have gone up dramatically, actually more than doubling. In 
fact, the median liability award jumped 43 percent in just 1 year--from 
$700,000 in 1999 to $1 million in 2000.
  This chart depicts growth in liability claim payments. Not 
surprisingly, the increase in jury awards has led to similar increases 
in the dollar value of settlements reached out of court.
  As this chart shows, the average claim--including both jury awards 
and out-of-court settlements--has risen sharply in the past 6 years, 
rising from $176,000 in 1995 to approximately $325,000 in 2001.
  The crisis will continue to grow worse until Congress acts. If we 
miss yet another opportunity to pass meaningful liability reforms, I 
have no doubt that more of these yellow States will turn red next year 
as they find themselves facing a medical liability crisis.
  Thankfully, President Bush has outlined several commonsense legal 
reforms that Congress can adopt to address this crisis. The President's 
proposal is based on the Medical Injury Compensation Reform Act, 
commonly called MICRA, which California adopted back in 1975.
  As this chart shows, California MICRA reforms have kept medical 
liability premiums affordable for California's physicians. Since the 
reforms were adopted back in 1975, California's total premiums have 
risen 182 percent, while the rest of the Nation's have risen 573 
percent--three times the California increase.
  In short, while medical liability premiums across the country have 
taken off over the last 25 years, California's have remained relatively 
stable.

[[Page 16930]]

  So what do the California MICRA reforms mean for the average doctor 
and his patients? Quite a bit, as this chart shows.
  This chart lists the going market rate for an insurance policy with 
the largest insurer in each of the following cities. It should be noted 
that Colorado has passed meaningful liability reforms that are very 
similar to California's reforms. These take a look at Los Angeles, 
Denver, New York, Las Vegas, Chicago, and Miami. Doctors in Los Angeles 
and Denver, where States have enacted reforms, pay less than those in 
States that have not enacted comprehensive reforms.
  For example, an obstetrician in Los Angeles, with the State's MICRA 
reforms, can expect to pay $54,000, while his colleague in Miami is 
looking at a bill of more than $200,000. As you can see, Florida is 
certainly a medical liability crisis State.
  Similarly, a surgeon in Los Angeles or Denver can expect to pay about 
one-half as much as a colleague in Las Vegas or Chicago. These same 
surgeons would face an enormous liability bill--about $175,000--if they 
moved their practices to Miami.
  Senator Ensign has shown a great deal of leadership on this issue 
dating back to his days in the House of Representatives. He has 
incorporated the best parts of the President's proposal and MICRA, the 
California law, into the legislation before the Senate, S. 11, the 
Patients First Act of 2003.
  While I would allow the author of this legislation to explain it in 
detail, I will briefly describe some of the important reforms included 
in the Patients First Act.
  First and foremost, the Patients First Act allows patients to recover 
100 percent of their economic damages. This can include hospital bills, 
lost wages, therapy, and rehabilitation costs and a wide variety of 
additional expenses a victim might incur. So all of the economic losses 
would be recovered.
  In addition to recovering every dime of economic damages, patients 
can receive additional sums up to $250,000 to compensate for ``pain and 
suffering.'' The $250,000 is a substantial amount of money, identical 
to California's MICRA limit. But it still places at least some limit on 
unquantifiable noneconomic damages in order to prevent doctors from 
being driven out of business.
  Let's look at punitive damages. In those rare instances where a 
medical professional acts in a malicious or particularly egregious 
manner, the Patients First Act also allows victims to recover punitive 
damages the greater of $250,000 or twice the economic damages. This is 
in addition to recovering full economic damages and up to $250,000 in 
noneconomic damages.
  The legislation establishes a standard of ``fair share'' liability. 
What this simply means is doctors and hospitals will not be held liable 
for harm they did not cause. Simple justice. Doctors and hospitals 
won't be held liable for harm they didn't cause which is possible today 
and would not be possible after the passage of this act.
  The Patients First Act also protects the injured by ensuring that a 
majority of any jury award or settlement goes to the patient who is 
actually hurt and not their personal injury lawyer.
  Finally, this legislation preserves State flexibility on damages by 
including what is commonly referred to as a flexicap. Recognizing that 
different States have adopted different approaches to address this 
crisis, the Patients First Act allows States to establish their own 
limits on damages. Under the flexicap provision, in any State that has 
adopted limits on economic, noneconomic, or punitive damages, those 
State limits, not the Federal limits, will apply.
  The flexicap also applies prospectively. If any State legislature 
believes the monetary limits established in this bill are too generous 
or not generous enough, it can simply enact a statute to change the 
limits within that State.
  Mr. LOTT. Mr. President, will the distinguished Senator from Kentucky 
yield for a couple questions on these issues?
  Mr. McCONNELL. I will be happy to yield.
  Mr. LOTT. Mr. President, I know the Senator from Kentucky is 
presenting his prepared statement, and it really has been quite 
interesting, and I share his concern. My State is one of those first 
States to be in red. We have a crisis in health care delivery. We are 
losing doctors to retirement, leaving the State, or leaving part of 
their practice, like OB/GYNs getting out of the OB part of their 
practice. The Senator made a particular point. I think the bill is a 
good solution, and it is based, as Senator McConnell said, on the 
California plan that has been successful that does have some limits on 
punitive damages.
  The Senator from Kentucky just made a point about the abilities of 
the States to act differently if they so choose. Will the Senator 
explain that? I did not understand that was in the bill. I am very 
interested because one of the complaints I have heard is that we are 
imposing our will on the States and the State legislatures cannot act, 
if they want to or if they will, although not many of them have. Will 
the Senator from Kentucky expand on that point?
  Mr. McCONNELL. Mr. President, I say to my friend from Mississippi, 
the argument typically made for this type of legislation is that we are 
interfering with the rights of the States. What we have done in this 
measure is to give the States an opportunity to act, to, in effect, 
supercede what we have done to make it less generous or more generous, 
depending on what they may conclude. A State is given an option to 
address this crisis in a way that is different from the way we 
addressed it within certain guidelines. By doing that, we do make an 
effort to respect the State's right to act.
  Mr. LOTT. Mr. President, if the Senator will yield further, I say to 
the Senator, just coming back from my State, I had occasion to meet 
with doctors, hospital administrators, and civilians who are having 
problems, like some of those the Senator pointed out earlier. I also 
met with some of the attorneys who raise the point that the States 
should be allowed to act.
  My own State legislature tried to deal with this issue and made a 
little progress, but it is still very weak. Our crisis is getting 
worse, and we are losing particularly those critical services that we 
need in our trauma systems, for instance.
  The point I wish to make or ask the Senator to further expand on is, 
they say: What is the Federal role in this situation? Why is it 
necessary for the Federal Government to become involved? My response 
has been, clearly, there is a Federal application for medical liability 
that may not exist in other areas because of the impact it is having on 
Medicare. The additional threat of these lawsuits, the defensive 
medicine, the additional costs of medical liability insurance are 
causing all kinds of additional costs to be added to our Medicare 
system. I have heard billions of dollars, and I am going to find out in 
the next day or so what is the approximate amount that is being added 
each year to the cost of Medicare.
  We are trying to improve Medicare and trying to add prescription 
drugs, but there are other costs that are being heaped on to the system 
that are very destructive.
  I think the answer is, more than in any other area where we tried to 
get some legal reform, there is a Federal application in medical 
liability because of the impact it is having on the Medicare system.
  Does the Senator from Kentucky care to respond?
  Mr. McCONNELL. Mr. President, I say to my friend from Mississippi, I 
do not know the exact figure--maybe my staff does--but clearly it has 
had an impact on the cost to the Federal Government. In addition, these 
doctors are moving back and forth across State lines seeking a place 
where they can practice their profession without basically giving away 
their services.
  Kentucky happens to be next to Indiana which adopted standards 
similar to California some two decades ago. I have met a number of 
doctors in Louisville and Henderson who are contemplating simply moving 
across the river to even afford to continue to practice their 
profession.

[[Page 16931]]

  At least in two ways it impacts at the Federal level, with interstate 
movement of doctors seeking a place to go where they can practice their 
profession, and the direct costs to the Federal Government under 
Medicare.
  Mr. LOTT. A similar situation exists in my State. We are right next 
to Louisiana and not a State one would think would have the type of 
reforms they have in place. It is very easy to move from Mississippi to 
Louisiana. They serve different patients in a different State and 
medical liability costs are probably half of what they are right across 
the border.
  What worries me more is we have doctors leaving tremendously 
underserved areas such as the Delta. One doctor in particular I know 
moved up to South Dakota and started practicing medicine. Others are 
retiring when they would not have retired if they believed they could 
make a decent living.
  Even worse than that, doctors are getting out of certain practices. 
It has become a serious problem for health care delivery in my State. 
We have to act in this area, and soon, because the bleeding is growing 
in terms of losing doctors in these critical areas.
  Mr. McCONNELL. Mr. President, I say to my friend from Mississippi, he 
is absolutely right. Not only does it affect decisionmaking at the end 
of one's career but at the beginning. The younger doctors taking a look 
at which speciality to choose are shying away from obstetrics because 
they believe they cannot afford to go into that specialty, thus 
creating a shortage at that end as well as on the other end where 
doctors who have been in the field a number of years are no longer able 
to afford it. This is truly a national problem that cries out for a 
national solution.
  One modest estimate from CBO, in response to Senator Lott's earlier 
question--this is from my staff--this bill would probably save the 
Federal Government at least $11 billion. Our suspicion is it is higher 
than that.
  In conclusion, as this map shows, most of America is either nearing 
or facing a medical liability crisis. There are not many white States 
on this map. The white States are the ones that are currently OK. There 
are six of them. The rest are either in yellow, States showing problem 
signs, or red, States now in crisis, to which we have added a 
reasonable number just since this debate last year.
  During the last 8 years, the House of Representatives has recognized 
this brewing storm and has passed meaningful medical liability reforms 
on multiple occasions. Unfortunately, during this same period, the 
Senate has served as a graveyard for meaningful legal reforms.
  However, I believe the tide has begun to turn. The American people 
are beginning to understand this is not a battle about doctors, 
personal injuries, lawyers, and insurance companies; it is about 
ensuring their access, the patients of America, to needed medical care. 
Expectant mothers are worried that their obstetricians will have to 
discontinue practice before their baby is born. Parents are concerned 
that their local trauma center might not have a neurosurgeon on staff 
to treat a child injured in a car accident. Seniors worry that the 
double whammy of rising malpractice premiums and reduced Medicare 
payments will drive their doctors out of business.
  I believe the Patients First Act encompasses the key reforms needed 
to address this crisis. This legislation allows patients to be fairly 
compensated--fairly compensated--while placing badly needed limits on 
often out-of-control damage awards. I believe it is time for the Senate 
to address this crisis, and I urge my colleagues to support the 
Patients First Act.
  Mr. President, I yield the floor.

                               Exhibit 1


  Testimony--United States Senate Committee on the Judiciary: Patient 
    Access Crisis: The Role of Medical Litigation--February 11, 2003

       Ms. Leanne Dyess. Chairman Hatch, Chairman Gregg, Senators 
     Leahy and Kennedy, distinguished members of the Senate 
     Judiciary and HELP committees, it's an honor for me to sit 
     before you this afternoon--to open up my life, and the life 
     of my family, in an attempt to demonstrate how medical 
     liability costs are hurting people all across America. While 
     others may talk in terms of economics and policy, I want to 
     speak from the heart.
       I want to share with you the life of my two children and I 
     are now forced to live because of a crisis in health care 
     that I believe can be fixed. And when I leave and the lights 
     turn off and the television cameras go away, I want you--and 
     all America--to know one thing, and that is that this crisis 
     is not about insurance. It's not about doctors, or hospitals, 
     or even personal injury lawyers. It's a crisis about 
     individuals and their access to what I believe is, otherwise, 
     the greatest health care in the world.
       Our story began on July 5th of last year, when my husband 
     Tony was returning from work in Gulfport, Mississippi. We had 
     started a new business. Tony was working hard, as was I. We 
     were doing our best to build a life for our children, and 
     their futures were filled with promise. Everything looked 
     bright. Then, in an instant, it changed. Tony was involved in 
     a single car accident. They suspect he may have fallen 
     asleep, though we'll never know.
       What we do know is that after removing him from the car, 
     they rushed Tony to Garden Park hospital in Gulfport. He had 
     head injuries and required immediate attention. Shortly 
     thereafter, I received the telephone call that I pray no 
     other wife will ever have to receive. I was informed of the 
     accident and told that the injuries were serious. But I 
     cannot describe to you the panic that gave way to 
     hopelessness when they somberly said, ``We don't have the 
     specialist necessary to take care of him. We need to airlift 
     him to another hospital.''
       I couldn't understand this. Gulfport is one of the fastest 
     growing and most prosperous regions of Mississippi. Garden 
     Park is a good hospital. Where, I wondered, was the 
     specialist--the specialist who could have taken care of my 
     husband? Almost six hours passed before Tony was airlifted to 
     the University Medical Center--six hours for the damage to 
     his brain to continue before they had a specialist capable of 
     putting a shunt into his brain to drain the swelling--six 
     unforgettable hours that changed our life.
       Today Tony is permanently brain damaged. He is mentally 
     incompetent, unable to care for himself--unable to provide 
     for his children--unable to live the vibrant, active and 
     loving life he was living only moments before his accident.
       I could share with you the panic of a woman suddenly forced 
     into the role of both mother and father to her teenage 
     children--of a woman whose life is suddenly caught in limbo, 
     unable to move forward or backward. I could tell you about a 
     woman who now had to worry about the constant care of her 
     husband, who had to make concessions she thought she'd never 
     have to make to be able to pay for his therapy and care. But 
     to describe this would be to take us away from the most 
     important point and the value of what I learned. Senator 
     Hatch, I learned that there was no specialist on staff that 
     night in Gulfport because rising medical liability costs had 
     forced physicians in that community to abandon their 
     practices. In that area, at that time, there was only one 
     doctor who had the expertise to care for Tony and he was 
     forced to cover multiple hospitals--stretched thin and unable 
     to care for everyone. Another doctor had recently quit his 
     practice because his insurance company terminated all of the 
     medical liability policies nationwide. That doctor could not 
     obtain affordable coverage. He could not practice. And on 
     that hot night in July, my husband and our family drew the 
     short straw.
       I have also learned that Mississippi is not unique, that 
     this crisis rages in states all across America. It rages in 
     Nevada, where young expectant mothers cannot find ob/gyns. It 
     rages in Florida, where children cannot find pediatric 
     neurosurgeons. And it rages in Pennsylvania, where the 
     elderly who have come to depend on their orthopedic surgeons 
     are being told that those trusted doctors are moving to 
     states where practicing medicine is affordable and less 
     risky.
       The real danger of this crisis is that it is not readily 
     seen. It's insidious, like termites in the structure of a 
     home. They get into the woodwork, but you cannot see the 
     damage. The walls of the house remain beautiful. You don't 
     know what's going on just beneath the surface. At least not 
     for a season. Then, one day you go to hang a shelf and the 
     whole wall comes down; everything is destroyed. Before July 
     5th, I was like most Americans, completely unaware that just 
     below the surface of our nation's health care delivery 
     system, serious damage was being done by excessive and 
     frivolous litigation--litigation that was forcing liability 
     costs beyond the ability of doctors to pay. I had heard about 
     some of the frivolous cases and, of course, the awards that 
     climbed into the hundreds of millions of dollars. And like 
     most Americans I shook my head and said, ``Someone hit the 
     lottery.''
       But I never asked, ``At what cost?'' I never asked, ``Who 
     has to pay for those incredible awards?'' It is a tragedy 
     when a medical mistake results in serious injury. But when 
     that injury--often an accident or oversight by an otherwise 
     skilled physician--is compounded by a lottery-like award, and 
     that award along with others make it too expensive to

[[Page 16932]]

     practice medicine, there is a cost. And believe me, it's a 
     terrible cost to pay. Like many Americans, I did not know the 
     cost. I did not know the damage. You see, Senator Hatch, it's 
     not until your spouse needs a specialist, or you're the 
     expectant mother who needs an ob/gyn, or it's your child who 
     needs a pediatric neurosurgeon, that you realize the damage 
     beneath the surface.
       From my perspective, sitting here today, this problem far 
     exceeds any other challenge facing America's health care--
     even the challenge of the uninsured. My family had insurance 
     when Tony was injured. We had good insurance. What we didn't 
     have was a doctor. And now, no amount of money can relieve 
     our pain and suffering. But knowing that others may not have 
     to go through what we've gone through, could go a long way 
     toward helping us heal.
       Senator Hatch, I know of your efforts to see America 
     through this crisis. I know this is important to you, and 
     that it's important to the President. I know of the priority 
     Congress and many in the Senate are placing upon doing 
     something . . . and doing it now. Today, I pledge to you my 
     complete support. It is my prayer that no woman--or anyone 
     else--anywhere will ever have to go through what I've gone 
     through, and what I continue to go through every day with my 
     two beautiful children and a husband I dearly love.

  The PRESIDING OFFICER. The distinguished Senator from Illinois is 
recognized.
  Mr. DURBIN. Mr. President, let me first commend my colleague, Senator 
McConnell of Kentucky, for his presentation and his leadership on this 
issue. Though we disagree on some very fundamental parts of this issue, 
I have the highest regard and respect for his ability and I look 
forward to working with him.
  What occurred about 45 minutes ago was that Senator Frist, the 
majority leader, came to the Chamber and filed a motion to proceed, and 
I objected. What Senator Frist was asking was that the Senate stop its 
business and move directly to S. 11 relative to the issue of medical 
malpractice. Because I have filed an objection, Senator Frist indicated 
he would file a cloture motion. After collecting the necessary 
signatures from our colleagues, this will lead to a vote on cloture 
come Wednesday.
  If Senator Frist can gather some 60 votes, he will be in a position 
to then move to this bill and begin the debate and the amendment 
process. That is the ordinary course of the procedure.
  An obvious question is why I objected. An issue clearly as important 
as medical malpractice should be considered by the Senate. There is no 
doubt in my mind. But I would object to the fact that this bill comes 
to the floor without any hearing before a Senate committee. Consider 
that. The most revolutionary and dramatic reform of tort law in 
America, in modern memory, will come to the floor without the normal 
hearings, witnesses, opportunities to amend, opportunity to work out 
compromises and negotiate, all part of the legislative process. So why 
then does a bill of this gravity and importance only come to us in this 
circumstance where there is no chance for us to work out ways to 
resolve our differences? Why, I cannot explain that to my colleagues. 
For a person like myself who served for some time in the House and the 
Senate, it seems to me that the Republican leadership in control of the 
committee structure would not object to taking this bill to one of 
their committees, having hearings, bringing in the doctors, the 
lawyers, the victims, the insurance companies, the pharmaceutical 
companies, and the companies that make medical devices. Let's hear 
about this problem in its entirety. But, no, they object to that. They 
do not want hearings. They do not want the people of this country to 
hear both sides of the story. They would rather come to the floor and 
present their side with a take-it-or-leave-it approach. I do not think 
that is fair. I think we can and we should do better.
  Let me say at the outset that though I have objected and though most 
major medical associations, like the American Medical Association, 
support this bill, I want to make clear my high regard for the medical 
profession. Time and time again, in my life and the life of my family, 
I have turned to some of the best and most talented medical 
professionals in America. I have entrusted them with the most important 
things I have on Earth--my wife, my children, and the people whom I 
love.
  Time and again I have found them to be selfless, extraordinarily 
talented, compassionate men and women who give the medical profession a 
good name every single day. Thank God they are there, and I want them 
to continue to be there. So I do not come to this Chamber as a doctor 
basher, as someone who thinks doctors are overpaid or frankly should be 
held to task for this, that, and the other. Not at all. Like most 
Americans, if I, my wife, or children are ever sick, I want to look up 
into the eyes of the best and brightest doctor in America helping a 
member of my family through a medical crisis. My family and I have been 
lucky in our lives. Many times I think we have had the best and the 
brightest, and I still continue to thank them as I take a position with 
which many of them will not agree.
  I believe there is a fundamental unfairness in the current situation 
with medical malpractice. I have seen that unfairness in my State. 
Senator McConnell has noted it in many other States. The largest 
medical malpractice insurance company in Illinois, the Illinois State 
Mutual Insurance Company, raised its rates last week 35 percent on 
doctors for medical malpractice insurance. Many lines of insurance are 
going up in cost, health insurance and other insurance, but this is an 
extraordinary increase.
  Two neurosurgeons in Joliet, IL, have given up the practice of brain 
surgery because of malpractice premium increases. They have left the 
city's only two hospitals without a full-time coverage for head trauma 
cases. Senator McConnell is right; Victims of automobile accidents and 
trauma need immediate help and immediate care.
  Memorial Hospital in Belleville, IL, near the area where I grew up, 
has lost three OB/GYN physicians in the past 6 months due to increases 
in rising malpractice premiums. I met one of them. I met one during the 
course of the campaign last year. She came to me and said: Senator, I 
just cannot continue to pay these premiums and deliver babies. And I 
believe her.
  Eduardo Barriuso of Humboldt Park, an obstetrician in my State of 
Illinois, pays $104,000 a year for malpractice insurance. He says he 
earns $175,000 a year treating mostly poor people, Medicaid patients. 
He pays $104,000 in malpractice, and has $175,000 in income. Like other 
doctors who treat patients who depend on Medicare or Medicaid or 
insurance through an HMO, Dr. Barriuso cannot pass on his higher 
insurance rates to his patients.
  The Family Health Partnership Clinic in McHenry, IL, was almost 
forced to close after its insurer left my home State. They found new 
insurance at four times the cost. The clinic serves the uninsured and 
operates off the volunteer services of physicians. It now pays $28,000 
a year for malpractice insurance, up from $7,000 last year, for a 
clinic serving poor people.
  A Chicago area OB/GYN is studying to obtain his pharmacist license. 
He has decided he cannot continue as a doctor. He thinks he can make a 
better life as a pharmacist. He is now paying $115,000 for his 
liability insurance. I would readily concede the point made over and 
over by Senator McConnell that these malpractice premiums are not fair. 
They are unfair particularly to certain specialties--neurosurgery, 
trauma care physicians, OB/GYN, and several others who have been hit 
hard by these increases. That is just not fair.
  I suggest there is another unfairness involved in this discussion, an 
unfairness which my colleague from Kentucky never conceded. Frankly, 
there is an unfairness in this bill when it comes to the victims of 
medical malpractice. Of all the comments made by my colleague from 
Kentucky, little was said about whether it is fair to cap the recovery 
for a victim of medical malpractice at medical bills, lost wages, and 
pain and suffering of no more than $250,000.
  Now, I do not come as an expert on anything. Some 20 years ago, in my 
legal practice in Springfield, IL, I handled medical malpractice cases. 
For a number of years I defended doctors through their insurance 
company. I

[[Page 16933]]

had about 7 years with that experience. Another 2\1/2\ years I was a 
plaintiffs' attorney suing some doctors and hospitals for malpractice. 
So I have seen it from both sides of the table in a courtroom. I do 
understand the dynamics of a medical malpractice case, at least as they 
applied 20 years ago. I do not know how many others in this Chamber 
have had that experience. Some have but very few.
  So we come to this discussion, frankly, listening to others who are 
experts in the subject asking them for advice. What is the right thing 
to do to deal with this medical malpractice insurance crisis? I think, 
frankly, that this bill, which limits the compensation to be paid to an 
individual under a medical malpractice case to $250,000, is 
fundamentally unfair. It is as unfair to victims as the malpractice 
insurance rates are to doctors.
  Is that the best the Senate can do, that we take the unfairness to 
doctors and then visit it on unsuspecting people who go to a doctor or 
to a hospital expecting professional care and come home with their 
lives changed or ruined?
  I recall one case in Chicago. Let me give an illustration of what S. 
11 would mean in this case. This woman, about 50 years old, had two 
moles on the side of her face. She said to her doctor: I think I would 
like to have those removed, doctor. He said: I will send you to one of 
the very best hospitals for this surgical procedure, and he did.
  She went in for this surgical procedure to have two moles removed. 
She was given an anesthesia. They administered oxygen to her and they 
began to cauterize these moles. But there was a problem. Medical 
personnel were not supposed to use a cauterizing gun near oxygen.
  As a consequence, there was an explosion and a fire on her face, 
burning off her nose, completely disfiguring and scarring her face. She 
is in her early fifties now and has gone through extensive 
reconstructive surgery. She is lucky to be able to breathe through what 
was once her nose. Her life will never, ever be the same.
  She told the story herself in an article published in the newspaper 
in Chicago. Routine surgery went disastrously bad and her life was 
changed forever.
  According to those who have brought the bill to the Senate, they have 
decided how much it is worth to live 20 or 30 years with permanent 
disfigurement and scarring, what it is worth to go into the hospital 
for routine surgery and have something happen that completely changes 
your life. Do you know what it is worth under this bill? It is worth 
$250,000 for her pain and suffering. Not a penny more, not one penny 
more.
  The decision will be made in the Senate that in her case, and 
thousands of others across America, we will decide the maximum amount 
to which she is entitled. I don't think that is fair. I don't think it 
is fair to victims.
  Malpractice premiums are too high and that is unfair to doctors. But 
a $250,000 pain and suffering cap? That is unfair in many cases of 
which I am aware.
  Let me talk about another case from my home State of Illinois, in the 
city of Urbana. David was born prematurely with a lot of problems. By 
the time he was 6 years old many of the problems were behind him, 
though he still had some problems with his lungs and asthma. When he 
was 6 he had a respiratory infection and started running a fever. The 
doctor who usually cared for him was out of town so his parents took 
him to a clinic for nighttime care. At the clinic, he was given an 
antibiotic and sent home. He got worse. His parents took him to an 
emergency room that same night where he remained overnight with a 
fever. The next day, concerned about David's continuing fever, David 
and his parents returned. The doctor admitted him to the hospital at 5 
p.m. At the hospital, they took his temperature and admitted him to a 
regular hospital room. They did not refer him to the ICU, nor did they 
place a temperature monitor on him.
  His mother was dozing in the chair in his room when a nurse observed 
he appeared to be lapsing into a seizure condition. The nurse did an 
emergency code. By the time the emergency team arrived, he was in full 
seizure. His temperature spiked to 107.7 degrees. He remained in a 
state of seizure for quite some time and eventually went into cardiac 
arrest.
  As a result of this ordeal, this 6-year-old boy was rendered a 
quadriplegic and lost all expressive ability. Professionals believe he 
has what is called receptive language. He can understand spoken 
language at an age-appropriate level but he is unable to communicate. 
He breathes through a tracheotomy stoma and is fed through a 
gastrointestinal tube.
  That was 11 years ago. He is now 17. David can never be left alone, 
not for 1 minute of 1 day. His mother says she can tell he is 
interested in girls by the way he perks up when a girl his age enters 
the room. But he cannot express himself. He cannot say a word. There is 
no chance of recovery and, of course, in his condition he is at a 
heightened risk prone to infection.
  The very issue that brought David to the hospital in the first place 
was his elevated temperature. Despite that fact, no temperature monitor 
was ever placed on him. In light of his history and his delicate 
medical condition he should have been admitted to the ICU rather than 
simply sent to the regular hospital room and given periodic attention. 
His family reached a settlement with the doctors and the hospital for 
the negligence in the treatment of David.
  It is not likely with all of the liability protections and extreme 
cap on damages under this bill that defendants would have felt 
compelled to reach a settlement with that family if the bill before the 
Senate would have been the law of the land.
  The tragic malpractice of which David was a victim literally took 
away from him all that every one of us take for granted. He will never 
walk again. He will never have a normal relationship with other people. 
Though he remains alert and is apparently not intellectually impaired, 
he cannot express himself and he never will be able to. He requires 
constant care. His mother gave up her job at a local college to care 
for him full time.
  For all of these losses with their child, for being denied a normal 
life, those who bring S. 11 today say they know what it is worth. They 
know what the pain and suffering of David is worth for the rest of his 
life. It is worth $250,000. Not a penny more. Is that fair? Is that 
fair to David, his mother, his father? I don't think it is.
  What we have here is a response to a medical insurance crisis which I 
don't believe gets to the root cause of a problem.
  What I am about to say now is not a statement made by trial lawyers 
or those friendly to them. I quote from Dr. Carolyn Clancy, director 
for the Agency for Health Care Research and Quality at the U.S. 
Department of Health and Human Services. What I am stating she said, 
under oath, before a committee I attended several weeks ago. This is 
what she said:

       As we all know, medical errors and patient safety issues 
     represent a national problem of epidemic proportion.

  This is a spokesman for the Department of Health and Human Services, 
a medical doctor herself.
  When listening to the explanation of this bill, at any point in time 
did you hear any reference to the fact that we are facing an epidemic 
of medical errors on patient safety issues in America? No. What we 
heard was we have lawyers who want to make too much money in court and 
they are taking these cases to the courtroom.
  Do you know, according to Harvard, what percentage of medical 
malpractice actually ends up in a lawsuit being filed? Two percent. One 
case out of 50 ends up with a lawsuit being filed. Think of that. In 
the universe of medical errors and patient safety, think of it in terms 
of this statement by Dr. Clancy that we have a national problem of 
epidemic proportions.
  The response of S. 11 to this epidemic of malpractice and medical 
negligence is to do what? It is to say that David, who is now 17, who 
is now a quadriplegic, unable to respond or express

[[Page 16934]]

himself, is going to pay the price. David and children like him in the 
future will never, ever be able to recover more than $250,000 
regardless of medical malpractice that brings them to the court.
  I understand my colleague from Oregon is here and I yield to him for 
the purpose of a question.
  Mr. WYDEN. I thank my colleague. I had a couple of questions, having 
listened to the statement.
  First, my sense is that many physicians in our country--I am seeing 
this across Oregon and rural Oregon--are having a real problem out 
there paying their malpractice premiums. We are seeing physicians leave 
the profession. This has resulted in patients not having the access to 
care they deserve.
  My understanding is that the distinguished Senator from Illinois 
agrees with that and that the Senator has already discussed that a bit 
this afternoon; is that correct?
  Mr. DURBIN. That is correct. I say to my friend and colleague from 
Oregon, I think it is a disservice to the medical profession of America 
not to concede there is a medical malpractice insurance crisis 
affecting some specialties in some States. I do not argue that point. I 
have seen those doctors face to face. Maybe my colleague from Oregon 
has, too.
  It is interesting, I might say to my friend from Oregon, as I 
listened carefully to the explanation on the other side as to how to 
deal with this crisis, I waited in vain to hear any suggestion that 
insurance companies should be brought in as part of this conversation. 
To the other side of the aisle it appears the only thing we need to do 
is to make sure the victims of medical malpractice have a limitation on 
what they can recover in court, no matter whether we are dealing with 
children or elderly people, no matter how serious the injuries. I do 
not think that is a complete and honest approach to an extremely 
complicated problem.
  Mr. WYDEN. If my colleague will yield further, my understanding is 
you have already indicated you are open to working with others in the 
Senate, colleagues on the other side of the aisle, to try to find a 
bipartisan solution. I am particularly interested. Senator Hatch and I 
were able to do this a number of years ago for the community health 
centers that were being priced out of their malpractice coverage. We 
were able to come up with a solution that has made it possible for 
thousands and thousands of poor people across the country to get their 
care and have these clinics covered without extra cost to the 
taxpayers, simply by working in a bipartisan way. My sense is to get 
out beyond the blame game, saying it is this interest group's fault or 
that interest group's fault, and to try to find some common ground here 
between Democrats and Republicans so we can really deal with a problem 
that is affecting many of our physicians and affecting our vulnerable 
patients. My understanding is my colleague from Illinois is open to 
that kind of bipartisan approach and may even have some ideas he will 
offer this week.
  I wanted to come to the floor because I think this is a real problem. 
I so often go to meetings and one group says it is the insurance 
companies' fault and the other group says it is the trial lawyers' 
fault. I have heard the distinguished Senator from Illinois say he 
wants to get beyond that and find a solution to a real problem. Perhaps 
he could address that in whatever time is remaining.
  Mr. DURBIN. I thank the Senator. I did not have a chance to speak to 
Senator McConnell, but I did speak to Senator Frist, who was here 
earlier and made that same offer. I said to him, instead of bringing 
this bill to the floor, take it or leave it, with no committee hearings 
and no effort to try to work out our differences, wouldn't it be better 
for us to sit down at some point and try to engage all the elements 
that are necessary for success if we are going to deal with this true 
crisis in America?
  He is open. I hope, if opportunity presents itself, we have that 
chance. I think we need to bring to the table, not only the legal 
profession but also the medical profession and the insurance companies. 
If you do not have all three of them at the table, as I will make clear 
in my statement, you are not going to get to the root cause of the 
problem.
  The answer from the other side is strictly to limit for malpractice 
victims the amount they can recover in court. I am going to show in 
charts I will present that that has not worked. Caps really do not 
guarantee that malpractice premiums come down, for a variety of very 
complicated reasons.
  I hope we can do that. I hope on a bipartisan basis we can stop this 
high-noon standoff and reach a point where we have real conversation 
and dialog.
  Mr. WYDEN. If my colleague will yield for one last question----
  The PRESIDING OFFICER (Mr. Sununu). Will the Senator suspend so the 
Presiding Officer may remind all Senators that yielding is only for 
purposes of asking a question in order for the Senator from Illinois to 
retain his recognition on the floor.
  Mr. DURBIN. I yield for the purpose of a question.
  Mr. WYDEN. I ask, is there any reason why we couldn't begin such a 
bipartisan effort immediately? That is something I would like to do. I 
cited a specific example with Senator Hatch where we were able to make 
a real difference by working in a bipartisan way. It is making a 
difference in community health centers for their liability coverage. Is 
there any reason why efforts to come up with creative solutions that 
are bipartisan could not begin right now, rather than going this route 
that is going to polarize the Senate once again?
  Mr. DURBIN. I would say through the Presiding Officer, there is no 
reason why it should not start this evening and I hope it will. But it 
will require people of good will on both sides. It will require some of 
the special interest groups that have not even been brought into this 
conversation to be brought in and to accept their share of 
responsibility.
  I think we can work this out. We must work this out so we do not have 
the denial of basic medical services that are needed across the State 
of Oregon and Illinois and New Hampshire and Kentucky and so many other 
States. But we have to do it in a bipartisan, constructive way.
  Mr. WYDEN. I thank my colleague.
  Mr. DURBIN. I thank the Senator from Oregon for coming to the floor.
  The point I wanted to make with Dr. Clancy's quote is that medical 
malpractice in this country is a very serious problem. It is not just a 
matter of how many lawsuits are filed. As I indicated, only one out of 
50 malpractice cases actually ends up in court, and fewer than half of 
them end up going to verdict or settlement. It is a serious problem. 
The source of my statement is none other than the Institute of 
Medicine, a well respected organization here in Washington. They say 
this epidemic of medical malpractice has caused more American deaths 
this year than breast cancer, AIDS, and car accidents combined. It is 
an equivalent of a jumbo jet liner crashing every 24 hours for a year.
  More than 70 studies in the past decade have documented serious 
quality problems in medical treatment. One of the most well known 
studies published in 1991 by a team of Harvard researchers found 
adverse events occur in 3.7 percent of all hospital admissions and 58 
percent of those events are due to error.
  The Institute of Medicine later took that study and another similar 
study done in Colorado and Utah and extrapolated the results to all 
U.S. hospital admissions. The Institute of Medicine found that there 
are at least 44,000 adverse events every year and as many as 98,000.
  They also found that each year drugs kill 14,000 hospital patients 
and injure another 750,000.
  The group of Harvard researchers that published the 1991 study found 
only 47 malpractice claims in the 31,429 cases they discovered. Of the 
280 identified patients who experienced adverse events as a result of 
medical negligence, only eight filed malpractice lawsuits. That is only 
2 percent of the people who had a justifiable reason to

[[Page 16935]]

file a claim. Those researchers concluded that we do not now have a 
problem of too many claims. If anything, they said they were surprised 
there were so few.
  A similar study published in The Lancet found that although 17.7 
percent of patients experienced an adverse event that led to longer 
hospital stays, only 1.2 percent filed a claim. Thirty patients filed a 
malpractice claim out of 1,047 who could have, under this study.
  There are profound problems with the current system. Doctors are not 
being disciplined and errors are not being reported. How can we expect 
fewer errors in the future if we do not address the system as a whole? 
Despite the alarming incidence of malpractice, only about 2,000 
doctors, one-third of 1 percent of the doctors in the United States, 
are disciplined each year by State medical boards. Let me repeat, one-
third of 1 percent of all doctors are disciplined each year by State 
medical boards.
  I was on a trip recently and picked up a book in a book store which I 
recommend to people on both sides of this issue because I think it is 
the best and most balanced story of what we are facing and debating. It 
is entitled ``Complications.'' It is by a surgical resident from 
Boston, Atul Gawande, a National Book Award finalist for this book. It 
is subtitled ``A Surgeon's Notes On An Imperfect Science.''
  If you read this book--some people won't want to because there are 
some parts that may make you squeamish. I think Dr. Gawande really 
talks to you about the difficulty of being a medical doctor. The first 
chapter talks about placing a central line. It was tough for me to read 
this chapter, let alone what it was like for him as a surgical resident 
after having seen this central line implanted in a person's chest to do 
it for the first time himself. He had to. Trial and error was the only 
way he would learn. Of course, some mistakes were made. In his case 
they were not fatal or serious. But it was part of the learning 
process.
  I think we have to concede that medical practice is not perfect. But 
we also know some serious mistakes can be made with terrible 
consequences on an innocent patient.
  Dr. Gawande refers in one part to this whole question of what to do 
or how to deal with the fact that many doctors practice with other 
doctors who they really are worried about.
  Let me give you an example of what he refers to in a chapter entitled 
``When Good Doctors Go Bad.'' He says:

       But the problem of bad doctors isn't the problem of these 
     frightening aberrations. . . . In medicine, we all come to 
     know such physicians: the illustrious cardiologist who has 
     slowly gone senile and won't retire; the long-respected 
     obstetrician with a drinking habit; the surgeon who has 
     somehow lost his touch. On the one hand, strong evidence 
     indicates that mistakes are not made primarily by this 
     minority of doctors. Errors are too common and widespread to 
     be explained so simply. On the other hand, problem doctors do 
     exist. Even good doctors can go bad, and when they do, 
     colleagues tend to be almost entirely unequipped to do 
     anything about them.

  He talks about situations that he has faced where doctors are taking 
drugs. Doctors continue to practice and make errors every day. Because 
of the tight-knit community of physicians, other doctors are even 
afraid to speak to them, let alone to governing boards. Those doctors 
continue to make serious mistakes.
  Quoting again, he says:

       When a skilled, decent, ordinarily conscientious colleague, 
     whom you've known and worked with for years, starts popping 
     Percodans, or become preoccupied with personal problems and 
     neglects the proper care of patients, you want to help, not 
     destroy the doctor's career.

  There is no easy way to help, though. In private practice, there are 
no sabbaticals to offer, no leaves of absence, only disciplinary 
proceedings of public reports and misdeeds. As a consequence, when 
people try to help, they do it quietly, privately. Their intentions are 
good; the result usually isn't.
  This is a serious problem. If we are talking about malpractice 
claims, don't we owe it to the American people to be talking about 
medical errors and negligence and what we can responsibly do to make 
certain that the small minority of physicians who are guilty of 
malpractice are changed or removed from the practice?
  It is estimated that 50 percent of the malpractice cases in America 
are filed against 5 percent of the doctors. Yet all of the doctors end 
up seeing their malpractice premiums increase.
  When Congress set up a national practitioner database in 1986 to 
collect data on adverse medical practice, it was expected that at most 
it would report about 1,000 disciplinary actions a month. However, 
fewer than 1,000 a year are reported across the United States.
  Let me address another issue. It is interesting, when I speak to 
groups of doctors, this is the focus of their attention, as it should 
be, because malpractice premiums have gone up so high. But 2 years ago, 
this wasn't what doctors were talking about. Malpractice premiums were 
lower. They weren't raising this issue as often.
  They were raising another issue which is related. They were raising 
the issue of HMOs and managed care. Doctors across America told me that 
for years they were having difficulty being good doctors because 
insurance companies were telling them whether or not they could have 
tests performed, how long they could leave a patient in the hospital, 
and whether or not a surgery was indicated. They were beside themselves 
saying we were trained as medical professionals. We are being overruled 
by insurance companies.
  Is it a great leap for us to take that concern of doctors over these 
many years and understand that perhaps one of the reasons why 
malpractice has increased is that HMOs and managed care companies are 
squeezing doctors away from the professional standards that they were 
taught to follow? That is part of the reality.
  Another part of the reality is that not very long ago increased 
malpractice premiums were passed on to patients. Patients paid more in 
fees. Hospitals, of course, charged more for their services. Now, with 
HMOs and managed care and strict accounting and restrictions in 
compensation, the malpractice premiums can't be passed on. The doctor 
pays more of it personally.
  That is why this has become a dominant issue. But it also relates to 
insurance companies.
  A special interest group that is so heavily favored here in the U.S. 
Senate, which was hardly mentioned in the opening statement about S. 
11, is the insurance companies. We just do not talk about insurance 
companies in polite Senate company. It is considered inappropriate to 
think that perhaps they have gone too far.
  Do you know what this bill does? I think this is a classic. When you 
get to section 13 of this bill, the sense of Congress--this is like 
sending a note to your sister, but it is a sense of Congress, not a 
law--that a health insurer should be liable for damages for harm caused 
when it makes a decision as to what care is medically necessary and 
appropriate.
  We debated for months as to whether the HMO and managed care company 
would be held accountable for making the decision on what is medically 
necessary and appropriate. Those on the other side of the aisle stood 
with the insurance companies and said: No, we don't want to hold those 
insurance companies liable. If they say that somebody has to leave a 
hospital too soon or that surgery is not indicated, the best we can do 
in this bill on malpractice is a sense of Congress--note to your 
sister--that says we really think a health insurer should be liable for 
damages performed. No law, just that is what we think; that is what we 
sense.
  Is that any way to address this serious problem that is part of the 
medical malpractice crisis facing our country? Doctors and nurses many 
times know who the problem doctors are, and they know the problems with 
insurance companies. But the culture we are creating in the medical 
profession and the political culture which we created on the floor of 
the Senate has led us to the point where we can't honestly speak to the 
American people about remedying this problem.

[[Page 16936]]

  I think there is a better way to deal with this. We should enact 
legislation following the lead of Senator Kennedy, who introduced a 
bill last year. It would establish a voluntary system to share medical 
error information among providers' and patients' safety organizations 
through the National Patients' Safety Database. Information shared in 
this manner would be privileged and not subject to legal discovery. But 
it would allow health care professionals to report accidents without 
fear that that information will put anyone in legal jeopardy. It would 
take a bad doctor out of the operating room when he should be out.
  Health professionals who submit reports would also be protected from 
discrimination in the workplace for participating in reporting systems.
  Also, consistent with the Institute of Medicine recommendation, this 
bill creates a new Center for Quality Improvement and Patient Safety 
and the Agency for Health Care Research and Quality. The center would 
conduct and support research on medical errors--something we need to 
face and face honestly.
  We also have to concede another point. When the doctors from Illinois 
came in and said they favored this bill, I asked them: If we imposed a 
strict limitation of $250,000 on David and his family, a child who went 
to the doctor and hospital but unfortunately did not have his 
temperature monitored and became quadriplegic, if we said that child, 
no matter how long he lives, can never get more than $250,000 for pain 
and suffering, no matter what the circumstances, if we did that, would 
it bring down your malpractice premiums? The doctors said: No, not 
right away, but maybe in 3 or 4 years we would start to see that turn 
around. In 3 or 4 years?
  I listened to the Senator from Kentucky come before us and talk about 
an immediate national crisis. If his bill passes, it doesn't respond to 
this immediate national crisis. There is a better way to do this.
  Over the past 2\1/2\ years with the Bush administration, we have been 
rather liberal--I guess I could use that word--in relation to their 
particular subject, tax cuts. We decided to use the tax cuts to reward 
and help certain people in our society. I believe we should construct 
legislation that allows a tax credit for those medical professionals 
and doctors who see their malpractice premiums going through the roof. 
To do that gives them immediate assistance, not something that may or 
may not help them 3 or 4 years from now.
  The same could be true for hospitals and certainly for high-risk 
specialties. We need to allow doctors and hospitals to claim a tax 
credit for the percentage of malpractice premiums they are paying or 
will pay in the next number of years.
  I also want to talk to you about the whole question of insurers and 
why we are in this dilemma. This has been analyzed by many groups, 
including the Government Accounting Office, the Wall Street Journal, 
and USA Today. How did we reach this point of a malpractice insurance 
crisis today? Why is it so much worse today than it was?
  According to the Senator from Kentucky, one of the sponsors of S. 11, 
it is all about lawyers filing claims. That is not the whole story.
  Insurance works in this fashion. If I am going to insure you for a 
loss, I collect the premium from you. The only way that I make a profit 
is if I collect more premiums from you than I have to pay back or I 
take those premiums and invest them in a way where I make money, and, 
coupling that together with excess premiums, make my profit.
  It turned out that a few years ago, with the booming stock market and 
during the period of economic expansion in this country, a malpractice 
insurance company--a leading company in St. Paul, which is now out of 
business--had collected so much money in reserves and was making so 
much money in investments that they decided to declare a $1 billion 
dividend. Other companies saw this and said we need to get in the 
malpractice business; this is lucrative. So they did. They went in and 
made their investments. As the stock market started to crumble, they 
had no choice but to cut off their malpractice insurance or raise their 
premiums dramatically.
  Did you hear any part of that explanation in the introduction of S. 
11? You didn't. It was all about lawyers filing claims.
  But there is another part of the story. The insurance companies are a 
part of the story. We are not supposed to talk about that on the floor 
of the U.S. Senate. Perhaps someone is entertaining a rule to prohibit 
reference to insurance companies. We just don't do that around here. 
That is not considered polite. But it is part of the problem, and it is 
also part of the solution. We need to deal with making certain that 
insurance companies treat doctors fairly--and reinsurance companies.
  Now, this gets into the complexity of insurance policy, which I may 
not understand as well as I should, but I do know this part: There are 
five reinsurance companies in the world that reinsure for medical 
malpractice. Only one of them, the Hartford, is regulated in the United 
States and subject to State regulation; the other four are not. We have 
no idea whether the rates they are charging are fair. So before we say 
to David and his family, $250,000 and not a penny more, no matter how 
long you live, the obvious questions is, Are the insurance companies 
dealing with this challenge and dealing with it fairly?
  Incidentally, the insurance companies are exempt from antitrust law. 
They can gather information and share that information without any 
penalty, through the Department of Justice, for violations of 
antitrust.
  I think we understand what we are dealing with, but let me give you 
an idea of actual cases in States. The Senator from Kentucky talked 
about various States facing a malpractice insurance crisis, with which 
I do not quarrel. He suggested caps on recovery was the way to bring 
down malpractice insurance premiums.
  The Weiss Ratings analysis took a look at the percentage increase in 
median medical malpractice premiums in the period between 1991 and 
2002. They took a look at the States with caps, with limitations on how 
much a victim can recover, and those without caps.
  You would assume, by the opening argument, that if the State has caps 
on how much a victim and his family can recover, the malpractice 
premiums must be low. But look at these States as examples of what 
happened during that 10- or 11-year period of time. The States without 
caps on recovery for malpractice victims such as this child David: 
Arizona had a 3 percent increase in median premiums for medical 
malpractice; New York, 6 percent; Georgia, 8 percent; the State of 
Washington, 27 percent.
  When you go to the States with caps on recovery, let's see how their 
premiums reacted in the same period of time: California, up 50 percent; 
Kansas, up 60 percent; Utah, up 82 percent; and Louisiana, up 84 
percent. So there is no direct correlation, no linear relation between 
caps and the premiums charged to doctors--exactly the opposite of what 
has been argued on the floor of the Senate on the motion to proceed to 
the bill.
  In fact, if you look at it on a national basis--this, again, from the 
Weiss Ratings, Incorporated--the percentage increase in median medical 
malpractice premiums from 1991 to 2002: States with caps, with 
limitations on how much victims can recover, if they are the victims of 
medical negligence, a 48 percent increase in that period time; States 
without caps, 36 percent. So it is counterintuitive to argue that we 
are dealing with a linear relationship, direct relationship between 
caps and the premiums that are charged.
  I would like to also add that I think we have to be honest about how 
we bring the groups together to deal with this. I think we also have to 
look to the legal profession. I do believe that if attorneys are guilty 
of filing frivolous medical malpractice lawsuits, we should put into 
law penalties to not only penalize them for costs and attorney's fees 
but ultimately to prohibit them from filing this kind of lawsuit if it 
is done with any repetition.
  I do not believe doctors should be harassed. I want them to be 
doctors first and not sitting around in depositions and courtrooms for 
lawsuits that

[[Page 16937]]

never should have been filed. But let me add very quickly, I have been 
there. I, as an attorney, had people walk into my office where they had 
husbands who had died, children who had died, and asked me to file 
medical malpractice lawsuits. I had to listen to those facts and make a 
decision. I will tell you, I thought long and hard before I considered 
taking on any of those cases.
  Filing a medical malpractice case is not easy. It is not cheap. It is 
complicated and extremely expensive. If you do not start off with an 
understanding that you have a good chance of recovery, then, frankly, 
most attorneys will turn down those cases. That is why so few cases are 
filed relative to the number of malpractice claims that could be filed. 
Attorneys know that getting involved in those lawsuits in my State, 
now, requires an affidavit from a doctor which says, before you can 
file the complaint, that you do have a legitimate claim for medical 
malpractice.
  We know the depositions will require expert witnesses, who are 
extremely expensive, in preparing your case to take it to the jury. All 
of these things are understood. We also know, at the end of the day, 
most plaintiffs lose their cases filed for medical malpractice, and 
that is after they have cleared all these hurdles. So to suggest that 
attorneys are just filing these cases frivolously, believing they are 
going to receive money for just filing a complaint, is certainly not my 
experience.
  Let me say before I yield the floor--I notice my colleagues are in 
the Chamber and would like to speak--there is an element of this bill 
which the Senator from Kentucky made no mention of and no reference to 
whatsoever. He told us very good and important stories about doctors 
who could not practice because of malpractice premiums. I think he 
should have also included the fact that this bill does not just provide 
a limitation on recovery for lawsuits brought against doctors; this 
bill provides a limitation on recovery for lawsuits brought against 
pharmaceutical companies and medical device manufacturers.
  I did not read anywhere about a malpractice crisis involving 
pharmaceutical companies, but we learned 2 weeks ago, when we debated 
the prescription drug bill--and we have learned time and again--that 
hardly any major bill could go through the Senate unless it figured out 
a way to help drug companies. This bill is no exception. This bill has 
been designed to make certain there is a limitation on the amount of 
money that can be recovered from drug companies and medical device 
companies when they may be guilty of product liability, when they may 
have sold a product which injured someone.
  I can recall a specific situation: heart catheters. I am a little bit 
familiar with this issue, and maybe some of those who have followed the 
debate are as well. These are tiny little lines which are passed 
through a vein of a person to their heart, and they actually film what 
is going on in the person's heart. It is an amazing diagnostic device.
  The medical device itself had been cleared by the Food and Drug 
Administration, but it turned out that the manufacturer was guilty of 
shoddy practices in Massachusetts. This manufacturer was creating and 
producing catheters which, when inserted into a patient and sent up to 
the heart, would break, leaving portions within the heart, leading to 
the necessity for surgery to retrieve those pieces that were left 
behind.
  Now, I ask you, is that truly what this debate is all about, that 
medical device manufacturers which negligently make a product that can 
endanger the lives of individuals should also be limited in terms of 
their liability? These are not individual doctors; these are medical 
device companies. The same thing can be said of pharmaceutical 
companies.
  So I would just ask the sponsor of this legislation, the next time he 
comes to the floor to explain this bill--and does it in compassionate 
terms about doctors--why he does not tell us the rest of the story. I 
want to hear the rationale about drug companies and medical device 
companies, why they, too, need this protection when their products 
cause extremely excessive damage to individuals.
  It is my understanding that tomorrow we are going to return to the 
motion to proceed to this bill, and I am sure many of my colleagues 
will be coming to the floor. But I will say this, as I did at the 
outset: It is unfair the way doctors are being treated with medical 
malpractice premiums. Something needs to be done in a responsible 
fashion, and involving doctors and lawyers as well as insurance 
companies. If we do it, and do it right, it will be a service to every 
family in America and every community in America.
  But this bill, S. 11, is equally unfair to the victims of medical 
negligence. To put a limitation on the amount a person can recover--
regardless of the permanent disfigurement, the incontinence, the 
blindness, the quadriplegia that these people will suffer for a 
lifetime--is fundamentally unfair and, as we have demonstrated, will 
not lead to lower premiums. There are better, more reasonable ways to 
approach this problem.
  As I said before on the floor, and I repeat at this point, I stand 
ready to work with the majority and other Members of the Senate. Let's 
roll up our sleeves and do this the right way. Let's do it in a way 
that we can be proud of, and not do it in a take-it-or-leave-it 
fashion, as this bill has been brought to the floor.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. THOMAS. Mr. President, we are on this subject now. We are out of 
morning business; is that correct?
  The PRESIDING OFFICER. The pending business is the motion to proceed 
on this bill.
  Mr. THOMAS. I thank the Chairman.
  I am very pleased to come to the floor this afternoon and join my 
colleagues to address an issue that has a crippling effect on the 
health care system. It has helped take out of control Medicare costs, 
malpractice costs. I guess specifically I am interested in it for my 
own State, of course, as well as everyone else's. Some providers have 
seen premiums jump as much as 81 percent in 2 years. Rural areas are 
disproportionately impacted. Often there is no other provider to fill 
in when a doctor is forced to close shop. That has been the case in my 
State.
  Recent studies by HHS show that in States where they have enacted 
limits on noneconomic damages in lawsuits, there are about 12 percent 
more physicians per capita than there are where there is no such cap.
  So we are beginning to not only test the costs but whether we have 
providers. That is a very important one. OB/GYN services have been 
especially impacted in my State, where 9 out of 54 recently surveyed 
have either stopped delivering babies or plan to do so because of 
rising liability costs.
  I have listened to my friend from Illinois talk about this issue. 
Obviously it is going to be a controversial issue. There are different 
views, very different views, but it is not a new solution. It is one 
that has been in place and has proven to work in many of the States. It 
also is interesting that we have talked a lot--I happen to be involved 
with the rural health caucus. We have spent 2 weeks previous to this 
talking about Medicare. And we talk about, frankly, who is going to 
pay, but we seldom ever talk about what the costs are and what we could 
do about reducing some of the costs that put people out of touch with 
their own physician. This is one that is proven. This is one that does 
work. It is here to be acted upon.
  As to the discussion on the other side of the aisle that maybe we are 
in too much of a hurry, this has been on our minds and on our floor and 
in our States for a very long time. This is not a new idea as a matter 
of fact.
  I just wanted to show one little chart I think is interesting. That 
is to show that reforms do work as a matter of fact. This says, ``2003 
Premium Survey Data Selected by Specialties, $1 million to $3 million 
limits.'' Here are the specialties. Los Angeles, CA; Denver which has 
the limitation versus similar to what is here; New York, Nevada, 
Illinois, Florida do not. Then take a look

[[Page 16938]]

here at internal medicine. Here is an $11,000 premium, $9,000 premium. 
Over here where there is no control--$16,000, $19,000, $26,000, 
$56,000. Down here is the OB/GYN. In these cases where there is some 
limitation, $54,000, which is obviously too much anywhere, and $30,000. 
But look over here where there are none, none of the controls we are 
talking about here, $89,000, $107,000, $102,000, $200,000. It does 
work. It does work. Medical Liability Monitor is the source of these 
numbers.
  It isn't as if we are talking about something that is untested, 
something that we don't know about. It is not as if we are talking 
about a new problem of which we were not aware. The fact is, we have 
physicians living in Cheyenne, WY, who drive to Colorado for this 
reason. Can you imagine Wyoming being one of the highest places to pay. 
You wouldn't think that, would you? I think this is something that has 
a good deal of merit, something that we need to talk about.
  We have cited some of the things that are peculiar to our own States. 
We have a doctor in Wheatland, WY, who over the last several years has 
delivered more than 2,000 babies in about four different counties. He 
has been the major provider of services there. He has quit operating. 
He has quit delivering babies.
  Sheridan, a little larger town, has one of two OB/GYNs in the area. 
His medical malpractice insurance costs over $60,000 a year. So we are 
in the position, then, when providers drop out of communities like 
this, where people are forced to drive 2 to 3 hours before they can get 
services. We have talked a lot, and we have a lot of concerns about 
rural health care. And it is difficult to keep providers in those 
areas. When you have one or two who leave, you have none. And so it is 
really quite different to be in our area.
  The Wyoming physician population ranks 47th out of 50 States. So 
every physician is very valuable to us. Forty percent of our family 
physicians are over the age of 50, and we are going to see more 
retirements. We are going to see more movement, particularly if there 
are disincentives to serve such as this cost of malpractice insurance. 
So we need to deal with this.
  As I said, this idea that is being promoted has been in place. We 
know that it works. Is it going to solve all the problems of cost? Of 
course not. But we know this one will solve some of the problems of 
cost, and we can move forward to find some other ones.
  As I said, we talk all the time about health care and who is going to 
pay. But as all health care costs keep going up 12 or 13, 14 percent a 
year, we have to begin sometime to take a look at how we can contain 
some of the costs so that somebody will be able to pay for it.
  One of our orthopedic surgeons in Teton County, Jackson Hole, WY, has 
seen a 300-percent increase in liability premiums in the last 12 
months. Without trauma care in Jackson, these people have to go to Salt 
Lake City. This is the kind of additional difficulty we have.
  We all pay for medical liability costs. All patients pay the 
escalating costs generated by the Nation's dysfunctional medical 
liability system. And these increased premiums are the result. It also 
reduces the access to care, especially specialty care. So every 
taxpayer pays the price.
  We think we can reduce Federal spending in Medicare, Medicaid, the 
Federal Employees Benefits Plan. It is suggested we can reduce this by 
$14 billion in 10 years. This would be a savings to everyone. Local and 
State governments could save over $8 billion over that period of time. 
So it isn't just a focus on a few people. This is the kind of thing 
that would save us all money and I think would make our lives much 
better.
  What we are doing--and I think there needs to be a little explanation 
of it, to talk about it--doesn't limit damages to $250,000. It limits 
noneconomic damages to $250,000. So if someone needs care, if somebody 
needs various things that are economic costs, those things are not 
there. We want to make sure we listen carefully to what is being said 
here.
  So what we are seeking to do, of course--it seems to me reasonable--
is to set reasonable limits on noneconomic damages, provide for a 
quicker review of liability claims, assure claims are filed within a 
reasonable limit of time, and educate folks that frivolous suits only 
add to the overall cost of care for everyone. We spend a lot of time 
talking about who should pay. I have already discussed that but rarely 
do we talk about the costs. They are becoming increasingly important to 
us.
  This bill is modeled after California's liability reform bill. 
California's law stabilized the State's medical liability insurance 
market, increasing patient access to care, saving more than $1 billion 
a year in liability premiums. As I said, specifically it allows 
unlimited economic damages. Past and future medical expense, loss of 
past and future earnings, cost of domestic services, these things are 
not limited. It establishes a reasonable limit on noneconomic damages 
which is exactly what we are seeking to do. States, however, would have 
the flexibility to establish or maintain their own laws on damage 
awards. It establishes a fair share rule that allocates damages 
properly and fairly in proportion to the party's degree of fault. There 
is a sliding scale for attorney's contingency fees; therefore, 
maximizing recovery for patients, which this is really all about.
  It authorizes periodic payments to injured parties rather than one 
lump payment.
  It is interesting to me, it does seem to present kind of strange 
politics. We argue on the other side of the aisle all the time about 
health care and that we ought to pay and make sure everybody has health 
care and so we will do it with taxes so that they are appealing to 
those people who need help in terms of costs. But when we come up with 
something that will impact the costs, suddenly the sympathy shifts over 
to the trial lawyers. It is sort of interesting to try to argue both 
sides, when there is a certain amount of conflict here.
  I think this is a real opportunity for us to do some things that will 
be helpful to everyone, whether they are taxpayers, patients, 
physicians, or whatever. We have a chance to do something with that. 
Now is our opportunity. It is not a new problem. I think it is time we 
act. I am pleased to be among the sponsors. I want to work to see that 
this moves forward.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. McCONNELL. Mr. President, briefly, I thank the Senator from 
Wyoming for his contribution to this debate. We were discussing off the 
floor the fact that Wyoming got added to the crisis list--today, 
actually. Talk about a State in which the distances are great and the 
problems are compounded by it; Wyoming has to be at the top of the 
list. I thank the Senator.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi is recognized.
  Mr. LOTT. Mr. President, I want to correct some of the perceptions 
that perhaps have been left about what this legislation would do, or 
what the situation is.
  First, it is very interesting to me that it appears there is an 
effort to blame the medical profession, the doctors. I ask this 
question now of most Americans: Who do you have more confidence in, 
your local doctors, the drugs you have been taking, the medical devices 
that are keeping many alive, the type of medical care you are getting 
in home towns, or your local trial lawyer?
  Well, that is an easy question to answer. I have had to deal with 
that myself on both sides of the issue. By the way, I do have a law 
degree and I do know a lot of lawyers on both sides of the issue for 
whom I have a great deal of respect. Nobody is saying you should not 
have an opportunity to bring a lawsuit when you have been wronged or 
damaged. That is clearly not the case. But the idea that we are going 
to say no, no, there is not a medical liability crisis, there is a 
medical malpractice crisis--in fact, when I go around and talk to 
people who have pacemakers and have drugs that make their lives 
somewhat acceptable, or they have had strokes but they are controlling 
their blood pressure, up or down, they feel

[[Page 16939]]

pretty good about health care in America.
  Health care in America is the goose that laid the golden egg. We are 
the most blessed people in the world when it comes to medical care. Is 
it perfect? No. Are mistakes made? Yes. Do we need better reporting or 
to keep records of this sort of thing? I will support that. The AMA may 
not like it that we keep closer track and deal with some of these 
mistakes that are made. But I am for that. I think we need to know 
where the problems are and we need to deal with them.
  But to say the problem here is the medical profession or the 
insurance industry--by the way, I don't want to just dismiss their 
involvement either. I want to make sure we understand why these medical 
liability insurance rates are going through the ceiling like they are. 
It is a variety of issues, I believe. I don't believe it is just the 
lawsuits but I think that is a big contributor. I think defensive 
medicine is a big part of it. I think that some of their investments 
went south on them and that is causing some insurance companies to 
raise rates.
  But to shift the burden over to the medical profession, when I know 
these men and women practicing medicine--the neurosurgeons, 
orthopedics, OB/GYNs--these general practitioners in the Mississippi 
Delta are already so terribly underserved and are just saying: We 
cannot continue. We are retiring or leaving and going to another State. 
This is the crisis. Maybe my State is worse than most but this is a 
huge problem, and it is all over the country now.
  One of the things I want to correct is this: Senator Durbin talked 
about David, referred to David's situation. The inference was that all 
he would get is $250,000. As a matter of fact, under this legislation, 
he would get all of his hospital bills paid for, all rehabilitation 
bills paid for, all physical therapy, all speech therapy, all 
occupational therapy; and if a home nurse is needed 24 hours a day, he 
could receive full compensation for that. He could get lost wages up to 
a lifetime of what he could have earned, which could be, obviously, 
millions of dollars. It could cover anything David's family would have 
to spend on his condition. Plus, the punitive damages in this 
legislation is not $250,000; it is the greater of $250,000 or two times 
economic damages. Quite often, economic damages could easily be $10 
million.
  Mr. DURBIN. Will the Senator yield?
  Mr. LOTT. Then it would be two times that--$20 million--that a victim 
could receive if the economic damages are $10 million.
  So let me give an example, and then I will yield. I want to make this 
point. Under the California situation, with the $250,000 limit, what 
has happened? I ask unanimous consent to have this printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

           [From Californians Allied for Patient Protection]

   Sample Recent Medical Malpractice Awards in California Under MICRA

       December 2002; $84,250,000 total award; Alameda County.
       5 year-old boy with cerebral palsy and quadriplegia because 
     of delayed treatment of jaundice after birth.
       The $750,000 award for non-economic damages was reduced to 
     $250,000 under MICRA.

       January 1999; $21,789,549 total award; Los Angeles County.
       Newborn girl with cerebral palsy and mental retardation 
     because of birth related injury.

       October 1997; $25,000,000 total award; San Diego County.
       Boy with severe brain damage, spastic quadriplegic and 
     mental retardation because too much anesthesia was 
     administered during a procedure.
       November 2000; $27,573,922 total award; San Bernardino 
     County.
       25 year-old woman with quadriplegia because of a failure to 
     diagnose a spinal injury.
       July 2002; $12,558,852 total award; Los Angeles County.
       30 year-old homemaker with brain damage because of a lack 
     of oxygen during recovery from surgery.
       The award included $250,000 in non-economic damages for the 
     plaintiff's husband and $676,921 for past and future 
     household services.
       July 1999; $30,900,000 total award; Los Angeles County.
       Newborn girl with cerebral palsy because of birth injuries.

       October 2002; $59,317,500 total award; Contra Costa County.
       3 year-old girl with cerebral palsy as a result of birth 
     injury.
       The award included $100,000 in non-economic damages for the 
     child, $200,000 in non-economic damages for the mother and 
     $200,000 in non-economic damages for the father.

       April 1999; $6,885,000 total award; Orange County.
       Premature newborn girl with permanent blindness because of 
     delay in treatment.

       February 2000; $1,384,685 total award; Riverside County.
       39 year-old pregnant homemaker and mother who died because 
     of misdiagnosis.
       The $300,000 award for non-economic damages was reduced to 
     $250,000 under MICRA.
       December 1999; $50,239,557 total award; San Francisco 
     County.
       10 year-old boy with brain damage because of undiagnosed 
     infection at birth.
       The $324,000 non-economic damage verdict was reduced to 
     $250,000 under MICRA.

  Mr. LOTT. This shows that in December of 2002 there was an 
$84,250,000 total award in a case under the current California law; a 
$21 million in January of 1999; a $25 million award in October of 1997 
for a boy with severe brain damage and mental retardation because of 
the anesthesia. It goes on. Here is one for a $59 million total award.
  So the inference that all you could get under this legislation would 
be $250,000 is absolutely not the case. It would depend on the economic 
damages, the totality of the costs, and the verdict rendered. So I just 
wanted to make sure people are aware that there is flexibility here and 
that, depending on the severity and how long it would last, it could be 
a multimillion-dollar recovery.
  I am glad to yield to Senator Durbin for a comment or question.
  Mr. DURBIN. I thank the Senator. I ask him this question: Is the 
Senator familiar with the provisions in this law relating to collateral 
sources? For example, health insurance?
  Mr. LOTT. That you would get health insurance and that would be 
deducted, in effect, from the damage? I was not familiar with that 
particular provision but I understand that does happen all the time. I 
am not a cosponsor of the legislation but I am planning on being one. 
That is why I have been here listening to the debate and reading the 
legislation. I want to know all of the ramifications of it. There may 
be the collateral insurance provision that would allow the amount of 
money received to be reduced by that.
  Mr. DURBIN. Is the Senator from Mississippi familiar with the fact 
that in all 50 States across the United States, including his State and 
mine, there is no similar provision about the deduction of collateral 
sources? There is only one other instance where we have passed a law 
where collateral sources would be credited, and that was for the 
victims of 9/11.
  Mr. LOTT. I wasn't aware it doesn't apply to any other States. I 
would think the States would want to take that into consideration. I 
don't have a problem with that. You need to look at the totality of a 
situation--and you have judges and juries who will do that--to see what 
recovery they might be getting through their insurance, as you decide 
what the award may be in terms of what their economic needs are.
  Mr. DURBIN. If the Senator will further yield, is he aware of the 
fact that in most States, if you go into a civil lawsuit and raise the 
issue of insurance coverage, it is an automatic mistrial?
  Mr. LOTT. Absolutely. I have seen it happen. I was involved in a case 
one time and one of the lawyers accidentally mentioned insurance, and 
there was a mistrial on the spot. I always thought that was kind of 
ridiculous. But I also know that some juries, when they think an 
insurance company is involved and that actually the doctor might not 
himself be paying, that might affect the amount of the verdict they 
would give. So that is why that law is on the books.
  Mr. DURBIN. If the Senator will further yield, this bill says that in 
any health care lawsuit any party may introduce evidence of collateral 
source benefits. I ask the Senator, does he consider it fair that if 
David's family had health insurance that paid for

[[Page 16940]]

some or all of his medical bills, that those who were guilty of 
malpractice, in his case, should somehow be absolved from paying 
because his family had the foresight to have insurance?
  Mr. LOTT. Are these lawsuits about punishment, or are they about 
helping the people who have been damaged? Sometimes both. By the way, 
there could be, I guess, under certain circumstances, a criminal act 
involved. While I am not an expert in this area--it has been a long 
time since I practiced law and defended anybody--I have always thought 
the admission of evidence about where the money would come from or how 
much should be admissible in court. I have to defer to others who have 
more experience and more expertise in this area than I do.
  Mr. President, does Senator McConnell wish to comment? I yield for a 
question.
  Mr. McCONNELL. Mr. President, I say to my friend, my understanding of 
the way this provision would work is the collateral rule would allow 
the jury to know but does not reduce the award and does not allow the 
insurer to subrogate. That is the way this provision is crafted in this 
legislation. It would allow a jury to know, but it would not reduce the 
award and would not allow the insurer to subrogate. That is my 
understanding of the way it is crafted in the underlying legislation.
  Mr. DURBIN. Mr. President, I assume the Senator from Mississippi has 
the floor.
  Mr. LOTT. I yield to Senator Durbin for a further question or answer 
to the comments from Senator McConnell.
  Mr. DURBIN. I will do it in the nature of a question. Is it not true 
if the jury knows that the plaintiff's family, in David's case, has 
health insurance which is going to pay for some of his medical costs, 
which are obviously going to be extensive, that this is likely to 
diminish the amount that will have to be paid by the party responsible 
for David's condition?
  I ask the Senator, he suggested earlier that this should not be about 
punishment. Is there not a question of accountability? If the doctor in 
this case did not monitor his temperature leading to quadriplegia and a 
lifetime of pain and suffering, is there not a question of holding that 
doctor accountable rather than his parents for having the foresight of 
buying insurance?
  Mr. LOTT. To answer the question, I see no problem in a jury being 
able to consider the totality of the situation. I do not think we 
should ignore the fact a doctor--first of all, they are human beings. 
They do make mistakes. There are lawsuits based on very good cases and 
recoveries of a significant nature because of the extent of the damage 
or the longtime life impact on that person.
  When a doctor goes through this, don't you think it has an effect on 
his practice in that community? Do you think he is not adversely 
affected by it? I remember a case in my home area where a doctor left a 
sponge in a patient and it affected his career the rest of his life. He 
was punished. He was punished by the verdict, his insurance company had 
to pay, obviously--the patient got significant damages, both economic 
and punitive damages, and he suffered mightily.
  The point is, I have watched this issue for pretty close to 34 years, 
both as a lawyer and then as a Member of Congress, and it has gotten 
worse and worse. It is leading to a serious problem. It is about the 
patients, and it is about the doctors' insurance companies. But what 
about the people now who are losing access to medical care, to expert 
doctors, to especially the trauma doctors we are about to lose in my 
own State, the women who have to drive literally hundreds of miles to 
get to an obstetrician when they are going to have a baby, what about 
their risks? Maybe they should be able to file a lawsuit against 
somebody because they do not get sufficient health care.
  This is something we are going to talk about over the next 24 to 48 
hours. I do think something has to be done.
  I want to make this point, too, in terms of working something out: We 
saw last year prescription drug legislation was brought directly to the 
Senate floor. It did not go through the Finance Committee. Because of 
that, we were required to get 60 votes, and that is why we did not get 
prescription drug legislation last year. A couple of the alternatives 
that were voted on got over 50 votes, but we had to have 60. So there 
is nothing extraordinary about taking up a bill that comes over from 
the House or taking a bill directly to the floor for consideration.
  I would prefer we have hearings. I think hearings would be a lot of 
fun. I would like to see the doctors, the nurses, and patients who are 
being denied care have a chance to say what this is doing to them. 
Maybe we could work out some of the disagreements.
  I wish to make this point: That effort has been made this year. 
Senator Frist has been working with Senator Feinstein to come up with a 
bipartisan bill basically along the lines of what is in this bill with 
the $250,000 limit on punitive damages or two times economic damages, 
whichever is greater. Senator McConnell probably was involved in those 
negotiations, but it fell apart when there was pressure to raise it 
from $250,000 to $500,000, and they just basically quit working on it, 
I guess, because they could not get an agreement.
  I would hope a committee would act--have hearings, report a bill, and 
let's make sure it is a good bill, but let's make sure it is not one 
written by just the plaintiffs' lawyers.
  Mr. President, does Senator McConnell wish to comment?
  Mr. McCONNELL. Mr. President, I want to make sure my friend from 
Mississippi is aware that, in fact, there was a joint hearing on 
February 11 between the Judiciary Committee and the Labor Committee on 
this subject. There has been a recent hearing. Of course, in previous 
Congresses, there have been numerous hearings on this subject for as 
long as the Senator from Mississippi and I have been Members of the 
Senate.
  Mr. LOTT. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, to make sure we all understand what the 
provision is in the bill we have been discussing, let's put it this 
way, Mr. President: This provision only allows a jury to know the 
victim has received benefits from a third party, such as a health 
insurer. It allows the jury to know that, I say to my friend from 
Mississippi, but the jury is free to ignore that evidence if they like. 
It would allow them to know there was insurance coverage, but the jury 
is free to ignore that evidence if they like. The provision also 
prevents health insurers, a third party, from recovering payments it 
made to the victim. That is what this bill actually does.
  I think it is important just to set the record straight on what is, 
in fact, contained in this legislation on that point.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I thank my colleagues for joining us in 
this floor debate, and I hope others will tomorrow, and I am sure they 
will. It is worth noting that the State of Mississippi, faced with the 
circumstances described by my colleague and friend, Senator Lott, 
decided to do what each State has the right to do, and that is 
establish its own standards of recovering for noneconomic losses.
  It is my understanding they have established a schedule that starts 
at half a million dollars and, over a period of 10 or 15 years, goes up 
as high as $1 million or $1.2 million. That has been done by the State 
of Mississippi, as it could be done by any other State. What we are 
considering here is what we will do on a national basis.
  I was wondering if the Senator from Kentucky would help me understand 
the portion of the bill relative to what he described as flexibility in 
terms of States rights.
  Would the Senator be kind enough to yield, without me yielding the 
floor, to engage him in a dialog about this State flexibility? Is that 
permissible under the rules of the Senate? I direct that request 
through the Chair.
  The PRESIDING OFFICER. If the Senator from Illinois will make a 
unanimous consent request for the purpose of engaging in a colloquy, 
that will be acceptable.

[[Page 16941]]


  Mr. DURBIN. If the Senator from Kentucky is kind enough to yield to 
this procedure, I ask unanimous consent--I do not yield the floor--that 
we be allowed to engage in a dialog about some aspects of this bill so 
there is a clear understanding on the record of his intention.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I thank the Senator from Kentucky. As I 
have said before, we get dangerously close to Senate debate on this 
floor from time to time. This just happens to be one of those moments. 
I am happy to be here to witness it.
  I ask the Senator from Kentucky, what is the Senator's intention in 
the portion of the bill relative to State flexibility? I want to make 
certain I understand. If my State has any law relative to medical 
malpractice, relative to discovery or expert witnesses or, in my case, 
we do not have a limitation on noneconomic losses, what part of State 
laws would this new S. 11 preempt, and which portion would it not 
preempt?
  Mr. McCONNELL. Mr. President, I say to my friend from Illinois, 
reading from the bill, of which I hope he has a copy, section 11 says:

     SEC. 11. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.

       (a) Health Care Lawsuits.--The provisions governing health 
     care lawsuits set forth in this Act preempt, subject to 
     subsections (b) and (c)--

  Which I will go through in a minute--

       State law to the extent that State law prevents the 
     application of any provisions of law established by or under 
     this Act. The provisions governing health care lawsuits set 
     forth in this Act supersede chapter 171 of title 28, United 
     States Code, to the extent that such chapter--
       (1) provides for a greater amount of damages or contingent 
     fees, a longer period in which a health care lawsuit may be 
     commenced, or a reduced applicability or scope of periodic 
     payment future damages,
       (2) prohibits the introduction of evidence regarding 
     collateral source benefits, or mandates or permits 
     subrogation or a lien on collateral source benefits.
       Subsection (b) any issue that is not governed by any 
     provision of law established by or under this Act . . . shall 
     be governed by otherwise applicable State or Federal law.

  Now, what the flexicaps are designed to do, as I understand it, is to 
allow a State to, in effect, opt out, consistent with the provisions 
that I read to my colleague from Illinois, within those parameters.
  Mr. DURBIN. If I could ask my colleague from Kentucky, that paragraph 
(b) goes on to say:

       This Act does not preempt or supersede any law that imposes 
     greater protections (such as a shorter statute of 
     limitations) for health care providers and health care 
     organizations from liability, loss, or damages than those 
     provided by this Act.

  As I read that, though, I understand that if one's State law is more 
generous to doctors, hospitals, drug companies, medical device 
providers, HMO insurance companies, then that State provision would be 
the applicable provision. Is that correct?
  Mr. McCONNELL. It is correct that this legislation allows states to 
provide greater protections to health care providers than are contained 
in this legislation.
  Mr. DURBIN. So it is not a balanced playing field completely. We are 
not leaving it to the States to decide, for example, that wrongdoers of 
medical malpractice cases would be treated more strictly, more 
severely? If there is a stricter provision in the treatment of those 
individuals, it would be preempted by this act? Is that the way we have 
explained it?
  Mr. McCONNELL. Again, to ensure the availability of health care 
services, the states are allowed to provide greater or additional 
protections to health care providers than are contained in this bill.
  Mr. DURBIN. Then if I might ask, the next section (c)--I am trying to 
get to the point of let's use an example of the State of Mississippi 
which has just decided on a cap of $500,000 on noneconomic losses 
effective January 1 of this year. Now, the underlying bill, S. 11, says 
that the cap on noneconomic losses will be $250,000. So in that 
instance, is it the position of the Senator that this bill would not 
preempt Mississippi law; that Mississippi's number would apply even 
though it is larger than S. 11?
  Mr. McCONNELL. Yes. This legislation does not preempt existing or 
future state laws on noneconomic damages.
  Mr. DURBIN. May I ask the Senator to explain subsection 2(c)(2) in 
terms of defenses available to a party in a health care lawsuit under 
any other provision of State or Federal law that does not preempt it? I 
do not understand that particular section. If I have caught the Senator 
off guard on that particular section, we can return to it at a later 
time, but perhaps he could explain what that particular section means.
  We can come back. I do not mean to catch the Senator off guard.
  Mr. McCONNELL. Let's come back to that.
  Mr. DURBIN. We can come back to that at some point. I thank the 
Senator for yielding and providing that additional information.
  As my colleagues can tell, during the course of this exchange we are 
doing what usually happens in a committee hearing where sections of the 
bill are explained and members of the committee have a chance to ask 
questions such as I have asked of one of the sponsors, Senator 
McConnell. Then perhaps members of the committee say, perhaps, we need 
to change that language and we offer amendments. That is the committee 
process.
  For this bill on medical malpractice, we have not done that. We are 
bringing it directly to the floor. As my colleagues can see, despite 
the fact that my colleague, the Senator from Kentucky, is certainly an 
able attorney, there are some complicated elements.
  It is important, if we are going to consider a bill of this gravity, 
that we do take the time to do it and do it right.
  I also note that a case which I mentioned earlier is a clear 
illustration of why this bill is fundamentally unfair to victims. I 
mentioned this case earlier because it involves a woman who lives in 
the city of Chicago. As I said in my opening statement, this lady, who 
has written an article in a leading newspaper in our town, says that 
she is literally the face of tort reform.
  Three years ago, she went to a prestigious hospital in Chicago for a 
routine surgery to have two moles removed from the side of her head. 
During the surgery, the oxygen which was being administered to her 
ignited. In her words, it set her face on fire. It ended with her face 
in flames.
  In her words:

       My entire upper lip was burned off and much of my nose is 
     gone. For two years, I couldn't breathe on my own, and I now 
     wear a face mask with nasal tubes in what's left of my nose, 
     23 hours a day. I have endured eight surgeries, with more to 
     follow. The doctors who are trying to reconstruct my face and 
     teeth say the whole process could take up to seven years.

  That is 10 years of surgery from that tragic accident.

       Even then, the scars and burn marks will still be visible 
     and the emotional cost will be with me forever.

  She says:

       I'm 50 years old, and the mistakes made at the hospital 
     have damaged every part of my life--from my career to my 
     personal life to my sense of self. . . .
       But today's proponents of medical malpractice reform don't 
     want to consider each case individually. They want to put a 
     cap on damages--regardless of how old a person was when they 
     were injured, how serious the injury, how an individual's 
     life has been affected by the negligence of others.

  Let me interject for a moment. What is at stake in this debate is not 
just this important issue of medical malpractice but several other 
important issues. We are now talking about changing, at least in some 
respects, the right of States to make individual decisions about the 
lawsuits filed in their States.
  As the Senator from Kentucky said earlier, there are some parts where 
the States will still have the last word but in other parts they will 
not. So we will preempt a State's right to establish standards for 
lawsuits in its State. Now that is an important issue which we consider 
from time to time, and depending on one's prejudice on the issue before 
them, they either ignore or honor States' rights. In this case, we

[[Page 16942]]

clearly do not honor States' rights. The sponsors of S. 11 have decided 
that on a national basis we will preempt States' rights.
  The other thing that S. 11 preempts that is critically important is 
the jury system. It is interesting that the men and women in the Senate 
who came here because of the votes of the people they represent, who 
trust the decision of the people they represent, would say that when 12 
of them are gathered together in a jury box we cannot trust them; they 
are just not reasonable. They get carried away. And because they get 
carried away, according to those supporting S. 11, we have to restrain 
them. The only way to restrain them is to put limits in the law, say to 
them no matter how much they think this poor lady's case is worth they 
cannot give her more than $250,000. This bill says we just do not trust 
that jury.
  Put the good lawyers in the room representing the doctor and the 
hospital, as well as those representing her, and the fear is, from 
those who bring S. 11 to the floor today, that they are just going to 
see this situation and say this is not fair, it is not right, and this 
poor lady deserves more than $250,000. Because of that fear that the 
jury may go too far, this bill says: We will stop them. We will stop 
them in every State in the Union.
  Is it not interesting that when it comes to juries in medical 
malpractice cases we have so little regard for their ability to find 
the truth and do what is fair? And yet when it comes to so many other 
areas of the law, such as criminal justice and the imposition of the 
death penalty, the jury is sacrosanct; the jury has the final word. 
When it comes to deciding what this is worth for this lady, we do not 
trust them.
  She goes on to say:

       Some claim that $250,000 compensates people who are 
     injured.

  I refer to this photograph of this poor lady and what she has been 
through, and she asks: ``Would any healthy person allow their face to 
be set on fire, or worse, to receive that sum of money?''
  She says:

       Not in the worst type of reality television show.
       Some claim that caps are necessary to protect insurance 
     companies and HMOs. With documented medical mistakes soaring, 
     it is astonishing that federally proposed legislation would 
     first target the victims of medical error, before addressing 
     the errors themselves.

  Now the Senator from Mississippi earlier suggested that I went too 
far in suggesting we ought to look at the whole issue of medical 
malpractice. Well, I do not think that is an issue foreign to this 
debate. I think it is an issue central to this debate. If we are going 
to reduce exposure to lawsuits, if we are going to reduce the size of 
premiums, then we certainly have to look to the root cause of the 
problem. If we do not deal with medical malpractice and the fact that 
only 1 out of every 50 cases of malpractice ends up in a lawsuit being 
filed, then frankly no matter how much we lower the noneconomic losses 
per case, there is still a universe of liability, a universe of 
exposure, for doctors and hospitals which goes untouched.
  If this is going to be an honest discussion about reducing 
malpractice insurance premiums and the crisis that they have created 
among some specialities in some States, then I think frankly, as is 
said by this poor lady who was a victim, what is wrong with asking how 
we make our hospitals safer? How do we get our doctors to reach a point 
where they are making better informed decisions? That is a reasonable 
inquiry. It is one from which we should not shy away. It is certainly 
one that applies directly to what we are discussing.
  She goes on to say:

       Some claim that juries are the problem. I trust a jury of 
     my peers to competently determine a fair judgment in cases 
     like mine.
       The proponents of this legislation want to rein in juries 
     in medical malpractice cases, but never question the 
     legitimacy of the jury in cases of the death penalty or other 
     cases of wrongdoing. It appears that their concerns focus 
     more on satisfying specific constituencies than protecting 
     citizens from harm.
       Like many people, I have been injured by poor care at a 
     hospital. More than anything in my life, I wish I could take 
     that day back, to make myself the way I was before the fire 
     exploded all around me. But I can't have that day back. All I 
     can have now is the right to be treated as an individual, to 
     have others understand how this event has changed my life.
       Caps on damages seek to treat all injured people in the 
     same way. No victim is exactly like any other. Devastating 
     injuries affect each life differently and deserve to be 
     treated individually.
       In short, my injuries are personal--though part of a 
     national epidemic of negligence in hospitals. A recent study 
     showed that 98,000 people were killed in hospitals, through 
     neglect, in a single year.
       I'm hoping that Congress and the public will see that each 
     victim of medical malpractice is worth considering on his own 
     and not put arbitrary caps on the personal suffering of so 
     many people.

  That is what it comes down to, a question of individual worth. The 
question is whether or not we have reached such a point in our society 
where we have to step away from the rights of this individual who was 
clearly a victim--as much a victim as someone who would be shot by a 
gun on the street or hit by a drunk driver on the road--whether we have 
to say in her circumstance we cannot trust a jury of her neighbors and 
people in her community to decide what that injury was worth.
  Have we reached that point? I hope we have not. I hope, instead, we 
will do something which would be a breakthrough in the Senate--that we 
will bring together the parties who are clearly responsible for where 
we are today. Those include insurance companies.
  The Senator from Mississippi conceded the point. He said: I will 
concede that the investments of insurance companies have something to 
do with the premiums, of how high they are.
  Well, though the Senator from Mississippi conceded the point, this 
bill doesn't have anything to do with it. It does not bring to task the 
insurance companies for the premiums they are charging or hold them 
accountable for premiums they will charge in the future.
  We can keep noneconomic losses, limit the amount of money the victims 
like this can recover, find premiums still rising through the roof as 
they have in many States that already have these caps, and be powerless 
to respond. Our friends in the medical profession who are rightly 
asking us to do something should be enraged at that point, as well. 
Having been promised this so-called tort reform--though I don't believe 
it is real reform--that this limitation on the amount that can be 
recovered on individuals is going to be the answer to their prayers, it 
may fail. That is not fair to them.
  Bringing together in one place the medical profession to deal with 
lessening medical malpractice, which according to the Bush 
administration spokesman, Dr. Clancy, has reached epidemic proportions, 
bringing together the insurance companies, which because of bad 
investments have seen their premiums skyrocket to try to make up the 
difference, bringing together the attorneys to make sure frivolous 
lawsuits are not filed, can bring a solution. If that solution is to be 
immediate--and it should be--it should necessarily involve some help in 
the Tax Code for doctors who are currently facing these problems, as 
well as hospitals.
  I would like to know if the Senator from Kentucky would engage me, if 
he would explain why he has included in this medical malpractice bill, 
that was originally designed for doctors and hospitals, protection 
against lawsuits relative to medical device manufacturers and drug 
manufacturers. Why were these two additional groups included in S. 11 
to limit their exposure to lawsuits? I don't recall any reports of a 
crisis when it comes to insurance for pharmaceutical companies.
  I ask unanimous consent that the Senator from Kentucky be allowed to 
respond and I still retain the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. I want to respond to some of the other suggestions my 
friend from Illinois has made, so if he completes his comments, I will 
be happy to respond.
  Mr. DURBIN. Fair enough. I yield the floor.

[[Page 16943]]

  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, with regard to medical errors, were we 
not debating a motion to proceed, and if we were on the bill, I am sure 
my friend from Illinois or other Members of the Senate would offer 
amendments with regard to medical errors. A medical errors bill has 
passed the House of Representatives.
  I don't think anyone is suggesting--certainly not I--that the 
underlying bill which we are seeking consent to get before the Senate 
should not be amended or improved in a variety of different ways. 
However, it is pretty hard to offer an amendment when we are on a 
motion to proceed.
  With regard to the lady who was horribly disfigured--this picture 
displayed by my friend from Illinois--it is important to remember that 
her damages would not be capped at $250,000. She would get all of her 
economic damages--all of them--plus $250,000 noneconomic damages, plus, 
in all likelihood, punitive damages on top of that equal to twice 
economic damages or a quarter of a million, whichever is greater.
  So the notion that there is simply no other compensation, that there 
is a $250,000 cap, is not accurate, I say with all due respect to my 
friend from Illinois.
  Senator Lott read off a few moments ago a list of awards under the 
California system--which is the underlying bill, the one we are seeking 
to get before the Senate, which this bill mirrors--of multimillions of 
dollars for compensatory damages; and punitive damages in a case of 
truly egregious events could be twice the economic damages. Then there 
is a pain and suffering award potential of $250,000 on top of that.
  The people who do not get a penny are the ones who cannot find a 
doctor because the doctor is no longer there. One of the examples I 
used in my remarks earlier, Leanne Dyess from Mississippi, did not get 
a penny. Nor did the women who give birth by the side of the road. They 
don't get any money when their doctors have been driven out of 
business.
  So the point I make in response to my friend from Illinois: This is 
not nearly as draconian as he suggests. On the economic side, there are 
no limits at all. Under punitive damages, there could be twice what 
compensatory damages are, and there is a $250,000 possibility on pain 
and suffering already. We think that clearly the victims are not denied 
adequate compensation.
  As we have already pointed out with several speeches, the States that 
have tried this kind of approach have lower malpractice insurance 
premiums and do not have the crisis that we have in most of America 
today without that kind of legislation.
  Mr. DURBIN. Will the Senator yield?
  Mr. McCONNELL. I will not yield at the moment.
  With regard to an earlier reference to the FDA, if a product is found 
to be appropriate by the FDA, the companies should not have punitive 
damages assessed when they follow the FDA approval process. Punitive 
damages are for illegal conduct, and if the Federal Government blesses 
that conduct, it can't be illegal. However, there is no cap on economic 
or noneconomic damages against the drug companies in that situation.
  The other part of the FDA section prevents doctors from being sued on 
product liability cases just because they prescribed a drug that the 
FDA has approved.
  That is the answer to the question the Senator asked earlier.
  Mr. DURBIN. Will the Senator yield?
  Mr. McCONNELL. I yield the floor.
  Mr. DURBIN. Let me go on to say that in this case the question I was 
going to ask the Senator from Kentucky is this: This poor lady was a 
victim in my home State of Illinois which does not allow punitive 
damages in medical malpractice cases. My question for him, which I will 
save for a time when he has a chance to answer--whether or not, under 
those circumstances, this victim of medical malpractice has been 
allowed to recover punitive damages under his bill.
  The reason I ask that question is I think that the section relative 
to State flexibility and protection of State rights is not altogether 
clear. If he is saying that this lady who was a victim of this 
explosion in her face, which led to multiple surgeries over a projected 
10-year period of time, might have recovered punitive damages under S. 
11, then in my home State you cannot turn to punitive damages. Your 
recourse, in her case, is for noneconomic losses, which are limited.
  I might also add the Senator should note his punitive damage section 
includes a phrase which is a very restrictive phrase. In my home State, 
when punitive damages were allowed they were allowed for reckless 
misconduct or willful and wanton misconduct, which is a higher level of 
negligence.
  Under the specific language of S. 11, in order to recover for 
punitive damages, you must show a malicious intent to injure. So to 
have cases of gross negligence is not enough. There must be ``malicious 
intent to injure.''
  Another question which I am going to ask the Senator from Kentucky to 
consider, and perhaps respond to at another time, is whether or not a 
situation where a doctor is either on drugs, addicted to drugs, or 
intoxicated, is a case of malicious intent as opposed to gross 
negligence or willful and wanton misconduct. Because if the doctor is 
clearly addicted or intoxicated and as a consequence someone is 
severely injured, the question in my mind is, Is that plaintiff, that 
victim, then strictly limited to $250,000? Is that a question of 
negligence or is that a malicious intentional act?
  The reason I raise that is because though we come to the floor and 
have these phrases go back and forth in debate, in a courtroom it makes 
all the difference in the world, as in this case or similar cases where 
States allow punitive damages.
  From my point of view, I think this bill is certainly deserving of a 
committee hearing where many of these questions could be asked and 
answered before taken up on the floor. We should have an amendment 
process. At the end of that process, we should decide whether or not 
this is the only way to deal with the malpractice insurance premium 
crisis, which we are facing in this country.
  I will also add at this point, the Senator made reference earlier to 
some of the challenges facing my home State of Illinois as part of the 
crisis which he has referred to in his opening remarks. I might also 
note it was just a couple of weeks ago in his home State of Kentucky 
that a report that became very controversial was put together by the 
Program Review and Investigations Committee on the cost of medical 
malpractice insurance and its effect on health care. It turned out when 
this report was filed there were those who tried to suppress it so it 
would not be made public because it addressed the question of why 
malpractice insurance premiums were high in the State of Kentucky. They 
raised, I think, some important points that deserve being part of our 
debate, since the Senator from Kentucky has been kind enough to bring 
in my home State of Illinois.
  This report talked about the impact of medical malpractice costs and 
access in Kentucky, and I quote:

       The total number of physicians in Kentucky has increased in 
     every year for which data was available--1981 through 2000--
     suggesting that the cost of medical malpractice has not 
     reduced the overall availability of physicians for the State.

  It goes on to say:

       The difference of premiums in states with joint and several 
     liability [another provision in S. 11] and other states was 
     generally not statistically significant.

  Then it went on to say:

       Premiums in states with caps on non-economic damages were 
     not statistically different than in other states.

  This is a report from the State of Kentucky written as it considered 
capping its own noneconomic losses. They concluded:

       Premiums in States with caps on non-economic damages were 
     not significantly different than in other states.

  It said:

       Premiums for internists and general surgeons were higher in 
     States that capped the amount of punitive damages that may be 
     awarded than in other states.

[[Page 16944]]


       . . . There was no evidence that limiting the amount that 
     attorneys may charge for fees resulted in lower premiums.

  That is from the State of Kentucky, this controversial report, which 
many people did not want released to the public.
  I think it raises questions as to whether or not the premise of S. 11 
is a sound premise. Certainly in the State of Kentucky, people who 
looked at it came to the opposite conclusion.
  Let me say a word about attorneys' fees. There has been a lot said 
here about attorneys and contingency fees. The contingency fee is the 
way a poor person comes to court. Unless you are independently wealthy 
and can finance a lawsuit and pay a lawyer by the hour, your only 
recourse is to say to the lawyer, You recover your fee if I recover a 
settlement or a verdict. That is what a contingency fee is.
  In this bill, S. 11, the authors go to great lengths to limit the 
amount of fees that can be recovered by attorneys filing medical 
malpractice cases.
  I will tell you in my experience as a down-State Illinois attorney--I 
don't speak for any other part of the State or for current 
practitioners--it was not uncommon to say to someone coming in: I am 
going to charge you a 25 percent fee if we can settle this before 
court; a third if we have to go through a trial; and up to 40 percent 
if there is an appeal. You will also have to pay costs, but I will try 
to hold onto those in the hopes that ultimately you recover and we can 
take that out of the ultimate settlement.
  Many people would say, What is my recourse? I can't pay for this 
lawsuit. I know it is expensive to hire experts, it is expensive to 
have attorneys prepare the case--for this lady who was a victim of 
malpractice and many others.
  In this particular law that is before us today, we try to put, at 
least it is suggested that we put, limits on the amount attorneys can 
be paid. We take away from the individuals the right to make that 
decision with their own attorney.
  Undoubtedly there have been abuses on attorneys' fees. I am sure that 
is the case, as there have been abuses on medical fees and abuses on 
fees charged by hospitals. But to say we are going to have a one-size-
fits-all, one single approach nationwide as to the amount you can 
recover is in fact to work a disservice as to whether or not attorneys 
will be able to take these cases.
  I spoke to an attorney today who took an extremely complicated case 
in Chicago who said before he finally reached a settlement his firm had 
incurred $250,000 in costs alone and there was no way that a 70-year-
old plaintiff could pay them. So this attorney and his firm decided 
they would put the money on the table, believing the case was 
meritorious, hoping ultimately they could recover it if there were 
settlement or verdict. And there was in this case.
  But in this approach here, there is an attempt to try to limit the 
amount attorneys can receive. I think people like the woman I showed 
here, this lady here, who is a victim and certainly one deserving of 
any compensation coming back--but she may never have her day in court, 
may never have an attorney, may never get a chance to submit her case 
to a jury of her peers if some attorney doesn't offer a contingency fee 
arrangement. I have serious concerns about where this will take us in 
terms of limiting these contingency fee contracts. That, to me, is a 
concern which should be I think debated and debated openly here.
  I also want to raise a question--I hope if the Senator from Kentucky 
does not want to address the issue at this point; he will at a later 
point--as to his qualifications of experts in medical malpractice 
cases. I want to understand the limitations he is putting on the 
experts who come before the court.
  In each trial I have been involved in, it was a decision to be made 
by the judge initially, and ultimately by the jury, as to the 
credibility of an expert witness. The difficulty which a plaintiff has 
in a medical malpractice lawsuit, in any city--whether it's in Illinois 
or Kentucky or New Hampshire--is most doctors are not anxious to 
testify against their colleagues. So if you are a person who has been 
injured in a malpractice case, you have to look hard, far, and wide to 
find an expert who will come to the courtroom and say the doctor did 
something wrong.
  In this particular legislation there is a limitation on the types of 
doctors who can testify in medical malpractice cases. I hope tomorrow 
when we return to this bill the Senator from Kentucky will consider 
addressing that particular issue as well--what kind of limitations he 
puts in place. Usually it is a case for the judge to decide initially 
and the jury to weigh. If they take a look at the doctor who is brought 
in and say, This doctor doesn't even have a specialty that relates to 
this lawsuit, or has no experience or really no testimony, then they 
discount this and perhaps even reject it and maybe even use it against 
the party who called this doctor. But to establish standards of 
evidence in this law--I think at least during the course of debating 
this motion to proceed, we should have an opportunity to discuss the 
matter.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, the Senator from Illinois mentioned the 
Legislative Research Service's study in Kentucky, which has been quite 
controversial and discredited by some. I think a more interesting study 
was released today by HHS here in Washington which revealed that the 
States' that enacted limits on noneconomic damages and medical losses 
have been about 12 percent more for physicians per capita than States 
without such a cap.
  As was pointed out earlier by a number of speakers on this side of 
the issue, California and Colorado tend to prove the point. This 
legislation is modeled after the California legislation. They enjoy 
lower malpractice insurance premiums in California. Widely believed by 
everyone is that the reason for that is a sensible system of caps on 
noneconomic damages.
  With regard to the limitation of lawyer's fees, I would remind 
everyone that is for the benefit of the victim because every penny the 
lawyer doesn't get, the victim does. The notion that somehow there 
would not be lawyers available to pursue worthy litigation if there 
were some kind of reasonable cap on lawyer's fees, it seems to me, is 
not substantiated by the facts. Under the Federal Tort Claims Act, 
there has been a 25-percent cap for many years. I never heard of any 
crisis created by the absence of lawyers willing to bring litigation 
under the Federal Tort Claims Act. Certainly there should be a 
reasonable limitation on fees. We want to make it possible for lawyers 
to be adequately compensated. But to protect the victim from his own 
lawyer, it seems to me that some reasonable limitation is appropriate. 
This bill includes what we believe to be a reasonable limitation.
  The Senator from Illinois also suggested the bill only allows 
punitive damages in case of malicious intent. It is not just malicious 
intent; the bill also allows punitive damages when the doctor 
deliberately failed to avoid unnecessary injury that such person knew 
the claimant was substantially certain to suffer. Interpreted, that 
means that would apply to the situation of the drunk doctor Senator 
Durbin refers to, or a doctor who was on drugs or somehow incapacitated 
through this kind of behavior. This would clearly mean that punitive 
damages would be allowed in this case.
  We are making a careful list of all the questions which the Senator 
from Illinois asked. All of them are good questions. They deserve a 
response and further argument for getting past the motion to proceed 
and getting onto the bill. So if there are improvements that the 
Senator from Illinois and others think should be made to the bill, 
offer those amendments, debate them, vote on them. It could well be 
that by the time we get to the end of this bill it would be in such a 
form that the Senator from Illinois might applaud and want to clear the 
Senate. Who knows.
  But at the moment, what we are left with is a cloture motion which 
the leader will later file on the motion to proceed in order to even 
get into a position to do anything beyond having an

[[Page 16945]]

interesting back and forth conversation between the Senator from 
Illinois and myself and get beyond that and actually begin to offer 
amendments to the bill and have debate on them and see where the votes 
may lie.
  I think that pretty well covers my observations for today. We look 
forward to continuing the discussion tomorrow.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I thank the Senator from Kentucky for his 
invitation to improve the bill. I believe it would be a better exercise 
done in a committee setting with experts and witnesses and Senators 
having the opportunity to debate it openly and amend it and to include 
not just changes to the rights of malpractice victims to recover, but 
also the insurance industry and the medical profession. I think all of 
those would make for a very constructive and important and timely 
undertaking which, unfortunately, we are not doing here.
  This is a vote to bring this bill to the floor immediately, and to 
literally debate it and pass it in a span of 3 or 4 weeks that we have 
left before the August recess.
  I might also add that California is often referred to in this debate. 
It is true that in 1975 California passed a malpractice law which put 
caps on the amount that individuals could recover from malpractice 
lawsuits. They have not changed that $250,000 cap in the interim. The 
actual value has been calculated. Because there has been some 28 years 
since California put that in place, inflation has really taken its toll 
on $250,000. Its value today is about $38,877.
  Mr. McCONNELL. Mr. President, will the Senator yield for a question 
on that point?
  Mr. DURBIN. I am happy to yield.
  Mr. McCONNELL. If we indexed that amount under this bill, would the 
Senator then support the bill?
  Mr. DURBIN. I would be open to the Senator bringing that in as an 
option, as long as we are dealing with honest figures and fair 
compensation. But I would also say that in most States which have caps, 
there are exceptions. For instance, in the State of Mississippi, there 
were exceptions where judges could see extraordinary cases like the one 
I mentioned earlier and say that should not be subject to the caps. My 
problem with California is it is a blanket cap.
  Mr. McCONNELL. I agree with the Senator from Illinois that some kind 
of inflation adjustment is an appropriate suggestion.
  Mr. DURBIN. I hope the Senator also agrees with me that we ought to 
allow some exceptions to the cap. I don't want to put words in his 
mouth. But that is what I think. I think those exceptions should be 
allowed.
  I would also say it is important to remember if there has been any 
containment of malpractice premiums in California, they also followed 
Proposition 103 which is insurance reform. It is not just the 
limitation on malpractice law that California has, but they passed 
insurance reform. After that reform, we saw some changes in the amount 
that was charged to physicians.
  The last point I want to make is this: There has been talk that if we 
don't do something about malpractice insurance, some doctors are forced 
to leave the State in which they are practicing. I don't doubt that is 
a fact. I have spoken to doctors in Illinois in specialties in certain 
areas who are seriously considering leaving. I hope they don't have to. 
I hope we can do something here to avoid it.
  But the fact is, in California there are indicators of significant 
physician dissatisfaction with medical malpractice, and they have the 
caps. There appears to be widespread problems recruiting physicians. 
Only a third of California physicians would still choose to practice in 
California, if they had to do it over today.
  To suggest that this is all about malpractice premiums and whether 
you have a cap on how much victims of malpractice can recover, the 
California experience does not necessarily prove that.
  Let me also say I would take exception--and we can debate this, I am 
sure--to my colleague's interpretations of the punitive damage section. 
It is true there are two elements here for punitive damages. They are 
both possibilities.
  One is that the person who is being charged with malpractice has 
acted with ``malicious intent to injure the claimant.''
  So that is an intentional act.
  Then it goes on to say, ``or that such person deliberately failed to 
avoid unnecessary injury that such person knew the claimant was 
substantially certain to suffer.''
  I would say to my colleague from Kentucky and those who drafted this 
bill that is unusual wording, and wording I am not familiar with. I 
would have to study that. But I think to talk about the deliberate act 
rises to intentional conduct again. The example I used was not a 
deliberate act but the act of a doctor who was under the influence of 
alcohol or drugs who may have imbibed or taken drugs, and then in that 
state of mind did a careless thing which resulted in medical 
malpractice. Whether that is included in the phrase ``deliberately 
failed to avoid unnecessary injury,'' I think is arguable. It should be 
clarified.
  I also want to say in fairness to my friend from Kentucky, since 
Kentucky and Illinois have been part of this debate, that a report of 
Wednesday, August 9, 2000, in the Courier Journal noted that 329 
physicians had been disciplined in Kentucky for alcohol or drug abuse, 
incompetence, and other offenses from 1990-1999 according to a report 
issued on questionable doctors.
  I might also say, Kentucky was ranked as one of the 10 best States in 
1999 in responding to this problem. I only raise that because, as 
painful as it is to concede by anyone, including those on the Senate 
floor, and certainly those in the medical profession, there are, in 
fact, cases where individuals have been involved in alcohol and drug 
abuse and then involved in malpractice.
  What I am hoping we can do, if we seriously want to deal with the 
malpractice issue, is to go beyond limiting the amount that victims can 
recover and bringing this conversation to how we police the ranks, so 
doctors who are not doing the right thing are not going to continue to 
commit malpractice. That isn't fair to the patients, and it certainly 
isn't fair to other members of their profession who end up paying 
higher premiums as a result of it. I think that should be part of any 
legitimate discussion that deals with this malpractice crisis.
  Mr. President, I know my colleague from Kentucky has yielded the 
floor for the evening, and I am prepared now, for my side, to close the 
debate on this matter and perhaps return to it tomorrow. At this point, 
until the Senate business is clear, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DASCHLE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DASCHLE. Mr. President, I did not come to the floor to talk 
specifically about this debate but I commend the distinguished Senator 
from Illinois for his excellent presentation today and for the work he 
has already committed to with our colleague, Senator Graham, and others 
in an effort to try to resolve this matter and provide some meaningful 
direction and leadership.
  I am disappointed we find ourselves in the position we are in, both 
procedurally as well as substantively--procedurally because this bill, 
obviously, has not had the benefit of committee consideration. The 
majority leader, as is his right, brought it directly to the floor.
  We have a model we used last year to resolve issues of controversy of 
this nature, in particular the terrorism insurance bill. That bill was 
brought to the floor after a significant degree of consultation and 
cooperation and, ultimately, negotiation. As a result of that 
negotiation, even though the whole

[[Page 16946]]

question of jury awards and issues involving tort reform were brought 
up--because there were some who argued that was the only way to resolve 
this issue involving terrorism and the problems of insurance related to 
terrorism--we passed the legislation on a bipartisan basis.
  If you ask anybody today in the industry, they will tell you that 
insurance premiums have gone down dramatically. The terrorism insurance 
bill has worked. I would only hope that we could use a model such as 
that with this issue as well. We can find legitimate, bipartisan, 
constructive, substantive ways to deal with this issue.
  There is no question this is a problem. There is no question that 
unless we address the problem successfully, it will become even more of 
a problem, exacerbated by the month. So clearly we have to address it. 
The question is how to address it.
  If you look at independent analysis done over and over by studies--
the most recent, the Weiss study, issued about 3 weeks ago--those 
studies have shown conclusively, and I would say almost unanimously, 
that there is no connection between caps and reduced insurance 
premiums, none.
  So we know we have to find a way to deal with the very legitimate 
problem being faced today by physicians across the country. The 
question is how.
  I give great credit to the Senator from Illinois and the Senator from 
South Carolina and others who have tried to find a way to address this 
issue in a meaningful, effective, and, ultimately, bipartisan manner. I 
hope we can continue to work.
  There is a problem on the other side as well. We want to relieve the 
problem, financially, that doctors are facing but let us not forget 
that we had reported by Health and Human Services that there were 
approximately 100,000 deaths due to malpractice last year. Mr. 
President, 100,000 people died due to mistakes made in the operating 
room, in the hospital, in the clinic. I will talk more about this at a 
later date but there are cases in South Dakota that are troubling.
  So while we ought to be concerned with one side of this ledger, let 
us not forget the real problem that exists, as the Senator from 
Illinois has said so powerfully this afternoon, on the other side of 
the ledger. Let's find that balance. I hope we can do that.
  But the reason I oppose the motion to proceed is because we have not 
really allowed the same opportunity that worked with terrorism 
insurance to work here. If Senator Durbin and Senator Graham can work 
together to find some solution, you would think there could be other 
ways with which we could use that terrorism model and truly find a 
constructive, bipartisan solution to this issue.
  Jamming this in the Senate, overriding the committee, and filing 
cloture on the motion to proceed is not the way to achieve some 
bipartisan consensus on a very legitimate issue. So we will vote in 
opposition to the motion to proceed, not because we do not want to 
address the issue but because there is a better model if we are 
ultimately going to find a solution. That is what it is we are trying 
to do. Let's use the model we established last year. I would hope we 
could do that.
  But we are spinning our wheels. We have 4 weeks in July, 4 weeks in 
September, maybe a week or two in October--roughly 10 weeks to deal 
with all the appropriations bills, all of the other issues that have 
come before the Senate so far, a prescription drug bill, the child tax 
credit legislation that is still languishing here, and an education 
bill that falls far short of even what the President said he would 
commit with regard to resources.
  We have a homeland security situation now, we are told by a report by 
Senators Rudman and Hart, that falls $98 billion short of where we need 
to be. One of the most stunning comments in that most recent report is 
that there isn't a first responder in the country that will survive 
today a chemical, biological, or nuclear attack to respond in the first 
place. That is right out of the report. So if we are serious about 
dealing with the Nation's issues, I hope we will not look at the 
ideological agenda. I hope we will look at the real agenda.
  I understand the President is going to be spending some time 
traveling the country over the course of the next several days talking 
about jobs. I hope he does. When we look at all the administrations, 
from the very first time we started looking at whether jobs were 
created or lost in any administration, you cannot find one--you cannot 
find one--where in the first term of an administration that 
administration was actually responsible for the loss of jobs, not the 
gain of jobs. We gained them in the Eisenhower administration, the 
Kennedy administration, the Johnson administration, all through the 
1980s and 1990s. This will be the first administration since Herbert 
Hoover that has actually seen a net loss of jobs--so far 3 million of 
those jobs in the first 2\1/2\ years.
  So my point in raising these other issues is simply to say we have a 
lot of work to do. The more we spend time on ideological agendas and 
issues for which there has not been adequate committee consideration, 
much less an effort made by people on both sides of the aisle to 
address them in a substantive way rather than in a political way, we 
are going to lose time and lose an opportunity to address these issues.
  Mr. President, I know the majority leader came to the Senate floor 
earlier to talk about how unprecedented it is to consider the 
possibility of a filibuster on a judge. I go back to our record and I 
will say we have broken all records with regard to the speedy 
confirmation of judges. The New York Times again addressed it over the 
weekend.
  Out of 134 judges considered so far under this administration, 132 
have been confirmed; 132 confirmed and 2 have not so far. But for the 
record I want to make sure people understand. Michael Gerhardt is one 
of the most respected analysts and experts with regard to the 
constitutionality of advice and consent. I want to read one segment of 
a speech he gave a few weeks ago. He talks about the historical 
practices of the constitutional right of advice and consent, especially 
as it applies to the rules of the Senate.
  Obviously, we talk about rule XXII, and we are very cognizant of the 
importance of Senate rules in this regard. Senate historical practice, 
according to Mr. Gerhardt, goes back to the first recorded filibuster 
of a judge in 1881, to block President Hayes's nomination of Stanley 
Matthews to the Supreme Court. Numerous nominees before him were denied 
votes by delay--in other words, they didn't come to the floor--which 
has been a common practice for the 215 years the Senate has been 
meeting. But on the very first occasion of a recorded filibuster, in 
1881, President Hayes's nomination was defeated; that being of Stanley 
Matthews.
  From 1949 to the year 2002, 35 nominations were filibustered, 3 
fatally, including Abe Fortas's nomination as Chief Justice. Seventeen 
of those thirty-five filibusters were of judicial nominations. From 
1968 to 2002, Republicans filibustered against 19 Presidential 
nominations. So these historical practices weigh heavily in support, of 
course, of the constitutionality in addition to the language itself.
  That really doesn't tell the whole story: Thirty-five nominations, 
seventeen filibustered against judicial nominations by Republicans 
since 1968. But the other story is the 65 nominations filibustered by 1 
person in the committee, not on the floor. Sixty-five nominations 
failed to come out of the Judiciary Committee because of a hold 
respected by the majority leader at the time or by a committee 
chairman. Ten had hearings. Fifty-five did not. Sixty-five nominations 
died before they could even be considered by the Senate on the Senate 
floor.
  You have 35 nominations which came to the floor, 17 of which were 
judicial, all of which were filibustered, the 17 by Republicans, but 65 
didn't even have the opportunity to come to the Senate floor for even a 
vote on cloture.
  I want to make sure the record, as the majority leader discussed the 
issue earlier today, is complete with regard to judicial nominations as 
well.
  Again, I go back to my hope that we can look back on those occasions 
when we actually succeeded at addressing a real problem and how it was 
we did so.

[[Page 16947]]

We succeeded with terrorism insurance because people such as Dick 
Durbin and Mitch McConnell and others sat down and negotiated and 
ultimately came to a resolution that solved a problem, solved it 
almost, I would say today, by acclamation. Nobody would differ with 
that assertion that we have solved, at least for now, the issue on 
terrorism insurance, even though it had many of the same questions 
involving it that we are dealing with today regarding malpractice.
  We have a lot of work to do. I hope we can address education and jobs 
and prescription drugs and the child tax credit and homeland security, 
not to mention energy and a lot of other issues that have to be 
addressed in the month before we leave. We can spend our time more 
productively. I hope that realization will be one that will be accepted 
by our Republican colleagues sooner rather than later.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Fitzgerald). The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, let me make a few observations about 
the record of the Senate this year. This year, the Senate had to 
complete 11 of last year's appropriations bills. There were only 13 
that were supposed to pass the basic work of the Government. This 
Senate had to come back and approve last year's work that was never 
done, 11 of the 13 appropriation bills. Last year, for the first time 
since the Budget Act was enacted in the early 1970s, there was no 
budget. The Senate never passed a budget. This year, the Senate enacted 
a budget.
  It is important to note that this year's Senate has also enacted the 
President's growth package which included the third largest tax cut in 
American history. And just before the recently completed recess, the 
Senate completed a bill modernizing and preserving Medicare and adding 
a prescription drug benefit for our seniors, an issue that had 
languished over the last three or four Congresses with no action.
  This has been an extraordinarily productive first part of the first 
session of the 108th Congress, one of which we all have a right to be 
proud. We are moving forward to complete the agenda for the American 
people.
  The measure we are considering today, or hoping to consider in the 
course of the week, the medical liability crisis, is a major part of 
trying to do what we need to do to make life better for the American 
people.
  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. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FRIST. Mr. President, I rise to continue the discussion on the 
health care crisis that exists because of our medical liability system. 
It is an issue we began talking about 4 hours ago, and it is an issue 
that does affect every single American. I have been very pleased in 
listening to the debate with the wide range of issues that have been 
discussed. For those who have listened, I think the debate today 
provides a very effective beginning of a debate the American people 
deserve and the American people expect.
  Much of the discussion today has been about procedure and the fact 
that we are moving to proceed with a discussion of this bill on the 
Senate floor. Although we can argue procedure back and forth, what we 
are trying to do is respond to a health care crisis that is real. The 
crisis affects not just doctors and providers in health care today but 
does, in effect, have an impact on every American, whether it is 
through being beneficiaries of our Government program, Medicare, 
Medicaid, the Federal Employees Health Benefit Plan, or through the 
private sector, or even for those who have no insurance today.
  I will outline a little bit about how every American is affected and 
why it is a bill that is important to every State and every citizen in 
every State.
  Medical malpractice premiums, as we reviewed over the course of the 
day, have skyrocketed in recent years. So it is a problem we have been 
able to identify for a period of time. A lot of people will date the 
debate back to the mid-1970s when MICRA, or the health care medical 
liability refrom that was put forth in California, was first passed and 
then implemented. It is an issue that in States which have not 
addressed the problem that is growing and is growing rapidly. We see 
access to doctors being threatened, especially for women, and I will 
come back to that particular point. Especially in rural areas, we see 
this access to care being threatened, and this is why it is a crisis. 
Access to care is being totally taken away in certain regions of the 
country. The AMA has a chart to be brought out, I am sure, in the next 
day or so that depicts those States which are in crisis. Since we last 
talked about some of these issues on the Senate floor, the number of 
States in crisis, where access to health care is threatened, has grown 
and grown dramatically.
  Every American should participate in this debate. We hear the 
anecdotes. We see the trauma centers closing down. If one talks to 
their doctor or if my colleagues would talk to their doctors, or if the 
people who are listening talk to their doctors, they know it is a real 
problem and challenge that is increasing every day.
  The situation is grave now. The crisis is there. It is getting worse 
and thus we bring the bill to the floor of the Senate for open debate. 
Once we get to the bill, it will be open for amendment where we can 
discuss these issues before the American people.
  The horror stories are there. The headlines are there. Hospitals are 
closing labor wards, delivery units, obstetric units. We see the trauma 
centers that have either threatened to close or have actually closed. 
We hear the stories of the expectant mothers who are unable to find 
obstetricians. Doctors, especially orthopedic doctors, bone doctors, 
who often are in a high-risk specialty, are the ones who are involved 
most often in trauma centers. We see the specialties, neurosurgeons, as 
well as orthopedists and obstetricians, all high-risk specialities, 
treating the very sick in many cases, leaving their States. If they are 
in a high-risk State with skyrocketing premiums, they are often moving 
to a low-risk State. In the case of obstetricians, they are leaving the 
practice of specializing in the delivery of children and stopping the 
delivery of children totally. There are neurosurgeons who are no longer 
signing up to take trauma calls or work in trauma centers because of 
the risk of being sued. The headlines go on.
  What I really want to stress as a physician, because I talk to my 
colleagues on a regular basis about this issue, the problem is getting 
worse, and getting worse by the day.
  Time Magazine, June 9, the cover article--actually, I did not see 
Time when it came out but have gone back to look at that particular 
front page cover and then the articles behind it. They talk about this 
problem in very real terms.
  I do encourage people, if they are unfamiliar with the debate, to go 
back and read the stories, the anecdotes, about what is happening 
around the country.
  A year ago last July, when we talked about a particular amendment my 
distinguished colleague from Kentucky had offered and we debated the 
issue, there were 12 States that were in crisis according to criteria 
used by the American Medical Association. That number went from 12 
States to 13, to 14, to 16, and 19. Now it is 19 States. Seven 
additional States have reached that threshold of being in crisis level.
  Crisis level means that premiums are skyrocketing. There are 
increasing numbers of frivolous lawsuits, but that translates now to 
worse access, greater barriers to access, to everybody. All the 
citizens of that crisis State are harmed in the event there is a trauma 
accident, in the event somebody needs to see a neurosurgeon or somebody 
needs to see an orthopedic surgeon or somebody is going to have a baby 
delivered. That is really the simple reason why we need to bring this 
legislation to the floor now. We should not be blocking proceeding to 
this very important bill.

[[Page 16948]]

  As a physician, this crisis is something I am close to because I 
watch what it is doing to my colleagues. These colleagues have chosen 
to go into this profession which is very special. I have a bias, but it 
is very special because they can go in and can heal, prevent disease, 
and people can live a better quality of life, day in, day out. That is 
why people go into the profession of medicine.
  Yet as we talk to doctors today, many will say--and this is very 
different than 15 or 20 years ago--that the greatest threat to their 
being able to continue in this healing profession is this skyrocketing 
escalation of malpractice premiums. They are being forced to pay for 
what ends up being a lot of frivolous lawsuits. These lawsuits are 
engendered or occur because the current system, which needs to be 
reformed, gives incentives to those trial lawyers--not all trial 
lawyers--to go out and stir up business. I think that is what is most 
offensive to the American people, that a component of our liability 
system is unnecessarily driving up the numbers of lawsuits which in 
turn is diminishing access to health care. Driving up the cost of 
health care, which we all know, makes it more difficult for people to 
receive the care they deserve.
  The fact that highly qualified and committed health care providers 
are being literally driven from the field they entered so they would 
have that opportunity to heal and to make others' lives better, is 
tragic. These individuals do not want to drop these vital services. 
They do not want to leave the specialities they spent years to develop, 
whether it is obstetrics, neurosurgery, or trauma surgery. They do not 
want to have to walk away from these fields. They do not want to have 
to leave underserved areas where this problem can be particularly bad.
  Tomorrow or once we get on the bill, I will bring letters to the 
Senate from physicians writing if they worked in, say, the Appalachian 
Mountains. In underserved areas or rural areas, they are being hit 
particularly hard because they are having to pay these skyrocketing 
premiums, going from $20,000 to $40,000 to 60,000 to $80,000. They 
simply cannot stay in business. They cannot afford paying an $80,000 or 
$100,000 premium for malpractice insurance. Without the insurance, they 
cannot ``go bare'' because then if they do get sued, it destroys their 
livelihood and any chance of practicing medicine in the future.
  The crisis is made real by the victims themselves. I hope the 
opponents of the underlying reform measure, or even those people who 
are saying, now is not the time to be addressing this in the Senate--I 
hope they look at those anecdotes, those individual stories now which, 
when accumulated in the aggregate, have reached crisis proportion. I 
hope they will agree that there is a crisis and now is the time to 
respond.
  The medical liability system is the root cause of this crisis. It is 
the perverse incentives we need to address and that this underlying 
bill, when we are allowed to go to the bill, does address. The current 
system, with the inefficiencies, with the perverse incentives, hurts 
every American. In addition, it hurts the negligently injured patients 
it is supposed to help.
  The good news is there is something to be done about the problem to 
make the system more fair, more just, to get rid of the waste and 
frivolous lawsuits. That is what the underlying bill does.
  Our system encourages lawsuit abuse in lots of different ways, in 
part, by rewarding personal injury lawyers who file huge claims in 
friendly venues, looking for that big payday. These lawyers often keep 
up to 40 percent--I think the least is probably around 30 percent or 33 
percent. They keep up to 40 percent of many of the settlements or 
verdicts of those injured. If there is a million-dollar verdict, for 
example, in some States the personal injury lawyer, the trial lawyer, 
pockets 40 percent, or $400,000, and the injured patient gets only 
$600,000.
  At the same time, negligently injured patient many times don't 
receive any compensation at all. They are never addressed because the 
personal injury lawyers go after the big bucks, the big pockets, the 
large lawsuits. When one is negligently injured and should be 
appropriately compensated, the personal injury lawyers are not there to 
address their particular needs. Again, they are going after the big 
pockets, the big sum. We have a system that compensates the few all too 
often at the expense of the many.
  The effect of these suits is staggering. Between 1996 and 2002, the 
average jury award in medical liability cases jumped 83 percent. 
Between 1997 and 2002, over that 5-year period, the percentage of 
medical malpractice payments of more than $1 million more than doubled. 
Again, this illustrates that the problem we have in this system is 
getting worse by the day.
  The mere threat of these huge, multimillion-dollar awards forces many 
doctors and many insurance companies to settle cases for large amounts 
even if that individual physician is not guilty. The incentive is to 
settle, simply to avoid the exorbitant suit, even if there is no guilt 
involved.
  We will show charts in the Senate that most of the cases filed in the 
U.S. courts are without merit. The most recent statistics showed that 
two out of three, or 67 percent, of those cases filed in U.S. courts 
are being dismissed or being dropped--not being settled and not 
actually going to trial. In addition, only 7 percent of cases actually 
go to trial, and a staggering 85 percent of those cases are won by the 
defendant.
  So these numbers are clear evidence of the abuse of the current 
system, of the inefficiencies, of the number of lawsuits that are 
frivolous. It is that waste, those inefficiencies, those disincentives, 
those perverse incentives that this legislation addresses.
  Frivolous lawsuits are unnecessarily driving up the premiums to 
physicians. For the most part, for the physician to stay in business 
with those premiums, skyrocketing premiums, increasing 10, 15, 20, 30, 
40 percent a year, if that physician is to stay in business, those 
costs must be passed on to those patients directly.
  It should be no surprise that the excessive litigation and frivolous 
lawsuits are forcing these malpractice premiums up. In 2002, physicians 
in many States did see their rates rise by 30 percent or more. In some 
States, and in some specialties, malpractice insurance premiums are 
rising by as much as 300 percent a year.
  In New York and Florida, obstetricians, gynecologists, and surgeons 
pay more than $100,000 for every $1 million in coverage. Soon the 
annual premium these doctors pay could reach more than $200,000.
  I mentioned earlier that the sky-high premiums uniquely affect women. 
This will be heard again and again in the Chamber. One of the three 
high-risk specialties is obstetrics. Many obstetricians are leaving the 
practice, leaving obstetrics, and are involved just in the practice of 
gynecology or family practice because they cannot afford the premiums. 
Right now, nearly 1 out of 11 obstetricians no longer deliver babies. 
Who can blame them? If you ask why, again and again it comes back to 
this threat of these frivolous lawsuits.
  It is a tax that affects women in many ways disproportionately. If an 
obstetrician today pays $100,000 for premiums--and that is not 
unusual--say they deliver 100 babies. That is a $1,000 tax that has 
nothing to do with the health care that is actually delivered or the 
delivery itself, but it is a $1,000 tax that, in effect, is placed 
right on top of the delivery of that baby. Thus, if you are a woman and 
you have a family, you need to realize that the doctor is having to pay 
that $1,000 tax on each baby delivered. This cost is ultimately passed 
on to the patient.
  This is clearly unacceptable because it reflects the waste, the 
perverse incentives in the system, all of which, again, can be fixed.
  Again, women living in rural areas are disproportionately affected 
and are even more threatened by the current system.
  In a June 9 front-page issue of Time magazine, there is one tragic 
story of an expectant mother in rural Arizona having to drive more than 
2 hours on a desolate desert highway just to see a doctor. That is not 
the sort of story that should be happening in America,

[[Page 16949]]

especially when we have physicians who want to stay in obstetrics, who 
want to practice in rural areas. However, they are being discouraged 
from doing so by the current system of medical liability.
  If anything, the incentives should be just the opposite. We should be 
encouraging physicians to deliver this care to women. We ought to 
encourage them to go to these underserved areas which are being 
disproportionately affected.
  It should be no surprise that the American College of Obstetrics and 
Gynecology is one of the strongest supporters of meaningful medical 
liability reform. They are uniquely positioned to understand the threat 
that the current system places on women. They are demanding action by 
Congress. I do urge my colleagues to listen to their unique concerns.
  The broken liability system does more than just raise the liability 
premiums on individual physicians. It adds tremendous costs, both 
direct and indirect, throughout the health care system. We have all 
heard of what is called defensive medicine and the increase in 
defensive medicine that is, indeed, practiced because of the fear, the 
legitimate fear, of these outrageous and skyrocketing lawsuits. To 
avoid lawsuits or to make sure that they are protected as a physician 
if there happens to be one of these lawsuits, physicians will simply 
order more tests, establish more of a paper trail.
  You think of the case of a simple headache. With defensive medicine, 
for a headache coming into the emergency room, a physician might just 
order, instead of a good physical exam and maybe some medicine, simple 
diagnostic tests. With defensive medicine we might go to the extreme of 
a CAT scan that might cost $800 or magnetic resonance imaging, an MRI 
of the head, which might cost $1,000. Why? Because people are at risk 
if they are in emergency rooms, treating somebody who comes to the 
door, even for something as simple as a headache. You do that, not just 
once or twice but hundreds of times, indeed thousands of times all 
across the United States of America--again, driven by the incentive of 
frivolous lawsuits being directed against you--and all of a sudden you 
can understand why these defensive medicine costs tens of billions 
every year.
  Recent surveys show that 75 percent or more of doctors acknowledge 
practicing defensive medicine. The exact cost is hard to calculate, but 
we do know it is tens of billions of dollars per year. When we realize 
that three out of four doctors are practicing defensive medicine, those 
numbers seem to be very realistic.
  In an authoritative study out of Stanford, two researchers there 
estimated that reasonable liability reform could save the country 
anywhere from $70 billion a year to $126 billion a year in defensive 
medicine expenditures; that is overall defensive medicine. If you look 
just at what the Federal Government could save by comprehensive medical 
liability reform, the Congressional Budget Office estimates about $18 
billion a year could be saved over 10 years with such reform. They are 
looking at just the Medicare Program and the Medicaid Program and the 
Federal Employees Health Benefits Program.
  Often in the Chamber today, a lot of people have talked about this 
issue of medical errors and patient safety. I think a lot of good 
points have been brought up in the Chamber. It is absolutely critical 
that we do address the issue of reporting of medical errors.
  I will have to say, just listening to physicians and having been in 
the field of medicine myself, the current system where you know that 
anything you say, in terms of even a possible medical error or mistake 
could result in a lawsuit is unacceptable. If they are there, you need 
to shine a light on them, you need to elevate them, you need to talk 
among your peers and talk among others; that is the only way you are 
going to fix and reduce these medical errors.
  But when above your health care system you do have some predatory 
lawyers who are sitting there looking for the big bucks, recognizing 
they are going to take home 30 percent or 40 percent of a settlement it 
discourages that light that we all know is critically important to 
allow a discussion, to allow a self-examination so you can have a 
system of ongoing, continuous quality improvement in health care.
  In the Chamber, people have referred and will continue to refer to 
the report of 3 years ago by the Institute of Medicine, ``To Err Is 
Human.'' A lot of these issues are talked about there. That is why I am 
a strong supporter of the patient safety legislation that has been 
developed by Senators Gregg and Jeffords and many others in a 
bipartisan way, the Patient Safety and Quality Improvement Act. That 
needs to be done. That needs to be addressed. But at the same time, by 
improving in a comprehensive way our medical liability system, we will 
actually improve the system itself. That will allow light to shine 
openly with, I believe, a lot more discussion and self-reporting by the 
provider system in order to have that quality improvement.
  It is an inefficient system that we have today. It does waste tens of 
billions of dollars. It does drive underground, I believe, our ability 
to improve patient safety. Thus, comprehensive reform of our medical 
liability system is, I believe, demanded. This bill, the Patients First 
Act, is a commonsense measure. It does restore a balance to the system 
itself. It protects the right of the negligently injured patient to sue 
for just compensation while at the same time curtailing the abuses that 
we know currently exist in our system--today. It has a number of 
critical components. I will look forward, once we get on the bill 
itself, to talking about a number of those components.
  I am delighted with the debate thus far. I look forward to continued 
participation on this important bill. We have seen at the State level 
that liability reform can work. This particular bill we are trying to 
bring to the floor is a bill based on the MICRA system, Medical Injury 
and Compensation Reform Act that was passed in California in the mid-
1970s. We know that is a big State. It has a high cost of living. Yet 
the overall premiums paid by physicians there have been much more 
controlled than in other parts of the country. MICRA works. We have 
that track record. We have that to look back to. That is why I feel so 
good about the legislation we will hopefully bring to the floor.
  There will be lots of blame passed around in terms of why the system 
today is not working. Some people say it is the doctors. Some people 
say it is hospitals. Others will say it is the insurance companies. 
Some people say the stock market and the bond market. We will have this 
crisis blamed on lots of different things as we go forward. I would 
argue that at the heart of the crisis is the current liability system 
which promotes these excessive lawsuits, and that it can be fixed. It 
can be fixed. That is what I look forward to doing with my colleagues 
on the floor of the Senate.
  Passage of this measure will help on both the access issues in health 
care as well as the expense issues for all Americans. If we do it, and 
we do it right, it will improve health care for all Americans.

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