[Congressional Record (Bound Edition), Volume 149 (2003), Part 13]
[Senate]
[Pages 17065-17073]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           PATIENTS FIRST ACT

  Mr. DURBIN. Mr. President, I would like to speak in morning business 
on the issue that is pending before the Senate, which is the motion to 
proceed on S. 11. This is a bill relative to an important issue that 
really we have to grapple with in this country, and that is the 
question of medical malpractice. It is an issue which has come at us in 
so many different ways. Unfortunately, the bill that is before us, S. 
11, which we are now considering under a motion to proceed, looks at 
the issue of medical malpractice from only one narrow perspective, and 
from my point of view a very ineffective perspective.
  What the bill before us would suggest is if you or a member of your 
family or one of your children is a victim of medical malpractice, 
there would be a

[[Page 17066]]

strict limitation in this bill of how much you could recover in court 
for what is known as noneconomic losses, pain and suffering. That 
strict limitation would be $250,000.
  To many people, $250,000 seems to be a very substantial sum of money, 
and it is until it is put in the perspective of the injuries we are 
discussing. Yesterday, in the course of the debate, I told the story of 
a 6-year-old boy in my home State of Illinois who went to a downstate 
clinic with a high fever. Unfortunately, he did not receive appropriate 
medical care and a jury decided he had been a victim of medical 
negligence. The doctors who had treated him did not perform the type of 
medical procedures necessary to monitor his serious condition. As a 
result of that, this poor little boy at the age of 6 became 
quadriplegic and uncommunicative. It is now 11 years later. He is 17 
years old. He needs care around the clock. He cannot respond to 
stimulus that ordinary people do. He certainly cannot communicate. His 
situation for the past 11 years is, frankly, what he will face as long 
as he is alive.
  That is a harrowing prospect for his family and it means they are 
going to have to dedicate the rest of their lives, as mother and 
father, to try to make his life on Earth as bearable as possible. So 
$250,000 in that context has to be taken from a different perspective. 
It goes beyond his medical bills, of which he will receive 
compensation, to the question of pain and suffering for him and 
certainly for his family.
  If this young man, now at the age of 17, is going to live 20, 30, or 
40 years, what is $250,000 worth? That $250,000 turns out to be a very 
small amount when we consider that the injuries he suffered and the 
problems he has endured are going to be there for a lifetime. So for us 
to say we will decide in the Senate in S. 11, the bill that is before 
us, that this little boy and his family will never receive more than 
$250,000 regardless of the circumstances facing him for the rest of his 
life, I think is totally unfair.
  In fact, it is a dramatic departure from where we have been in the 
United States for so long. We have said, first, that this is an issue 
to be decided by each State. Each State should decide if there is going 
to be a limitation on how much money someone can receive if they are a 
victim of a certain injury or malpractice.
  Secondly, we have said historically this is an issue not to be 
decided by 100 Senators, men and women sitting in Washington, but 
literally by 12 of this family's neighbors and friends who live in the 
community, who will try to reach a fair amount of compensation when in 
fact they find fault on the part of the doctor and the hospital. That 
is the jury system. It is a system we have believed in in America from 
the start of this Nation. It really is a system which parallels free 
elections in America where we say we entrust our Government to the 
people of this country.
  In the courtroom, we entrust these decisions to the people of 
America, 12 of them chosen at random to come to a fair conclusion. 
Those who are pushing this bill today say we can no longer trust the 
jury system in America; we cannot trust 12 of this little boy's 
neighbors and friends and people in the community to come forward and 
reach a fair verdict.
  I think that is a terrible condemnation of a system of justice which 
has really been the bedrock of American principles and American values.
  It is curious to me that many of the same people who decide today 
that the jury system consists of people who cannot be trusted will 
readily trust the jury system when it comes to questions of criminal 
penalties, penalties as severe as the death penalty. If we trust a jury 
of 12 to decide the life or death of a criminal defendant, is it not 
also fair to say we would trust them to decide a fair amount of 
damages, a fair amount of compensation, for this child and his family?
  Well, no. S. 11, offered on the Republican side of the aisle, says 
the opposite. It says, we will make the decision here. We are smarter. 
We know what is fair, and $250,000 is adequate compensation for this 
little boy who will face a lifetime now of care on a daily basis, 
minute by minute, whose mother has had to quit her job so she can stay 
home and tend to this 17-year-old boy who was a victim of medical 
malpractice.
  Let me also add that equally unfair and unjust in S. 11 is the 
treatment of people who are senior citizens, who have been the victims 
of medical malpractice, because what this bill compensates are medical 
bills and lost wages, and limits any other recovery to $250,000. So if 
one happens to be a senior citizen who has no active income, perhaps a 
little retirement and the money they derive from their savings, and 
they are a victim of medical malpractice, they are limited to $250,000 
compensation.
  I will come back later today and talk about a couple who were 
victimized frankly because a blood bank gave them blood that was 
tainted with the HIV virus, which resulted in this 70-year-old couple 
contracting that HIV infection, ultimately dying of AIDS. It was a sad 
situation and one that was graphic in terms of the malpractice 
involved. But because they were not wage earners, their compensation 
under this bill would be virtually nothing.
  The medical care which they would receive, of course, would be 
compensated, but it would only be $250,000 for pain and suffering.
  Let's go to the root cause of this debate. Why are we even talking 
about medical malpractice on the Senate floor? It is because we do have 
a serious national challenge. In many States, including my own, for 
many specialities of medical practice we have seen medical malpractice 
insurance premiums increasing at an alarming rate. When we have asked 
the General Accounting Office and private firms to analyze why this has 
happened, they have said there is a variety of reasons that have led up 
to it. Yes, in fact, there are more settlements in cases involving 
medical malpractice than there have been in the past, and in some 
marginal cases more verdicts. It is an indication of the fact there is 
more medical negligence being discovered, and even the Department of 
Health and Human Services gave us testimony a few weeks ago that we are 
facing medical negligence and medical errors across America, in their 
words, of epidemic proportion. So now we have this huge wave of 
exposure and liability coming at the medical profession, and naturally 
there are more lawsuits that are being filed to reflect this wave, this 
epidemic, of medical negligence.
  What has happened on the insurance side to protect the doctors? 
Sadly, this has been, frankly, a casino mentality among many of the 
medical malpractice insurers. Back in the Clinton administration, when 
we had a strong, vibrant, growing economy, when the Dow Jones index was 
going up regularly and people saw their retirement incomes growing and 
their savings growing, many people were investing in the stock market 
and doing well and many insurance companies did as well, too.
  In the case of medical malpractice insurers, they would collect the 
premiums from the doctors, invest them in the stock market or in bonds 
and do very well.
  Now what has happened? In the last 2\1/2\ years under this 
administration, we have seen the economy in recession; we have lost 
jobs; we have lost businesses; we have seen people lose their life 
savings; they have made new decisions on whether they have to continue 
to work.
  Business investment, as well, has not been as profitable. These 
insurance companies that thought they had a winning formula are 
starting to lose. The premiums collected from doctors, invested in 
bonds and the stock market, have not been as profitable. Because of 
this, many of these companies have gone out of business or raised their 
premiums because of anticipated exposure for medical errors. Those 
raised premiums have caused real hardship among doctors in America.
  Senator Daschle came to the Senate floor yesterday--and I tried to 
make the point, also--to say we understand this issue is serious. On 
the Democratic side of the aisle, we have offered to the Republican 
side of the aisle to come together on a bipartisan basis to deal

[[Page 17067]]

with the malpractice insurance crisis and the malpractice crisis in 
America. But we cannot resolve this issue by introducing a bill, S. 11, 
that only goes after one discrete part of it--limiting the recovery of 
medical malpractice to victims.
  This drastic response is not going to solve the underlying problem. 
We need to come together on a bipartisan basis as we did on terrorism 
insurance after September 11. We found a way to do it. But we can only 
do it if we engage the three elements that can lead to success. Those 
elements are: First, the medical profession itself. We have to bring 
together those doctors of good will across America who want to work 
with us to reduce medical errors, to bring more safety to the practice 
of medicine, to take away from the practice of medicine those doctors 
and practitioners who are largely responsible for medical malpractice. 
Fifty percent of the medical malpractice claims in America can be 
attributed to 5 percent of the doctors. We need to make certain the 
medical profession is more vigilant in taking these doctors out of the 
practice of medicine, are changing the way they practice medicine so 
fewer innocent victims emerge from this experience.
  Second, we need to bring in the insurance industry. I know this is a 
sacred cow in the Senate, to talk about insurance companies and holding 
them accountable for the way they are treating doctors across America. 
But you cannot have an honest conversation about dealing with medical 
malpractice premiums without talking about the insurance industry. We 
could cap recoveries across America in every courtroom for every victim 
of medical malpractice with no guarantee that medical malpractice 
premiums are going to decrease for doctors across America.
  Here is what I think we should do. First, we should eliminate the 
antitrust exemption for insurance companies across America. To think we 
allow these companies to collude, to come together and share pricing 
information to the detriment of their customers--in this case, their 
doctors--is indefensible. The McCarran-Ferguson Act should be repealed 
so the antitrust exemption is removed from the U.S. industry.
  Second, we need to look at the whole question of reinsurance. Most of 
these malpractice insurance companies only protect doctors up to a 
certain amount--perhaps $1 million or $2 million--in terms of their 
exposure to liability. Then they sell off the additional exposure--$2 
million to $10 million, $2 million to $20 million--and buy insurance to 
cover it. There are five major companies selling reinsurance in the 
medical malpractice area. Four are offshore and not regulated by any 
State or Federal regulation in the United States. We have no oversight 
of the way they are treating malpractice insurers in America. That is a 
guarantee that, no matter what we do in the Senate, there will still be 
ultimate vulnerability by the medical profession to unreasonable and 
excessive malpractice premiums.
  The solution involves: Bringing together the medical profession to 
reduce medical errors, to reduce medical injuries; bringing the 
insurance industry in to make certain that we have some accountability 
and fairness in the premium charges; and, finally, bringing in those in 
the legal profession to make certain that any lawyer filing a frivolous 
malpractice lawsuit is going to be held accountable for the costs and 
attorney fees, initially, and ultimately, if he or she continues doing 
so, banned from filing future lawsuits; also making certain that 
punitive damages would be eliminated in virtually all medical 
malpractice cases. All of these factors will move us toward a solution 
to this problem.
  This week, we are going to be visited by many doctors from across the 
United States. They will come and tell us of their legitimate concerns 
about malpractice premiums that are hurting their profession and 
limiting the availability of good medicine and good doctors across 
America. I do not quarrel with their premise that they have a problem 
that needs to be resolved, that we need to face squarely and honestly.
  But this morning, at 11 o'clock, I will hold a press conference in 
which we will have five victims of medical malpractice. They will tell 
their heartbreaking stories, how they went to the doctor, they went to 
the hospital, and came home so injured and so changed that their lives 
were never the same. The $250,000 being offered by the sponsors of S. 
11 is totally inadequate to the injuries they suffered. The limitation 
of $250,000 would make them wards of the state and dependent on 
government and charity for the rest of their life. That is what is 
being offered on the Republican side of the aisle.
  The last point I make is this: When you read S. 11 closely, you will 
find it is not only about doctors and hospitals, it is also about 
protecting from liability HMO insurance companies and health care 
organizations, the makers of medical devices, and those pharmaceutical 
companies that are found to have been negligent in the sale of their 
products.
  I cannot understand how the medical profession can allow itself to be 
used by the sponsors of this bill so that those who are coming in to 
represent these special interest groups--the HMOs and managed care 
organizations, the pharmaceutical companies, and the medical device 
companies--get protection, using as their argument the sympathy that is 
being generated on behalf of doctors who are struggling with 
malpractice premiums. That is unfair to the doctors; it is unfair to 
the hospitals; it is unfair to the Senate, that we would include in S. 
11 that type of limitation.
  Finally, this bill, S. 11, allows for punitive damages in the most 
limited circumstances. It requires that there be a deliberate act on 
the part of a doctor for punitive damages to apply, as well as 
malicious intent being another option under punitive damages.
  When I made an inquiry yesterday as to what it would mean if a doctor 
were intoxicated or an addict to drugs and, because of that 
intoxication or addiction, performed some medical procedure which 
harmed a person for life, I was told that punitive damage section would 
apply. I have to say quite honestly it does not because the language of 
the section is only about deliberate and intentional conduct, not about 
the kind of gross negligence involved in addiction and intoxication.
  As we look at S. 11, we owe the medical profession as well as the 
people of America more than is being offered. To bring this bill on a 
take-it-or-leave-it basis, to say we will have no committee hearings, 
no amendment process in committee, no opportunity for an exchange of 
information, is not fair to the people of America. I hope we can do 
better--I think we can--that when the vote takes place tomorrow on the 
cloture motion, we will see a number of Senators are going to come 
forward and ask that we try to resolve this difference in a fair way, 
in a balanced way, rather than this unbalanced and unfair way being 
offered.
  Mr. REID. Will the Senator yield?
  Mr. DURBIN. I am happy to yield.
  Mr. REID. As I listen to the Senator today--and I am aware of what 
the Senator talked about yesterday--is the Senator saying he is not 
opposed to our doing something regarding medical malpractice?
  Mr. DURBIN. That is exactly true. The Senator's home State, the State 
of Nevada, was a classic example of serious problems that were 
ultimately addressed last year by legislative action when the State of 
Nevada accepted its responsibility.
  We need to deal with this through each State, and we need to find 
ways on the Federal level to try to make certain we do not have States 
in crisis, as mentioned yesterday, because of malpractice premiums.
  Mr. REID. The Senator is absolutely right. In Nevada, the Governor, 
Republican Gov. Kenny Guinn, called a special session of the Nevada 
Legislature to address this problem which was created by one insurance 
company that decided to take a powder when the stock market fell, as 
the Senator aptly described.
  The Senator, who previously served in the House of Representatives, 
also said during his statements in the Senate that if we are going to 
move important legislation such as this, there

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should be committee hearings discussing the legislation. It is true, is 
it not, that we have had no hearings on this legislation?
  Mr. DURBIN. I would say to the Senator from Nevada, that is accurate. 
In fact, we had a limited hearing last February on the issue but not on 
this bill. Senator Coleman of Minnesota had a hearing in the 
Governmental Affairs Committee to talk about the general issue of 
medical malpractice, where the administration testified we are facing 
an epidemic of medical malpractice in America. But no one has sat down 
to measure whether this bill will actually reduce malpractice premiums. 
The only studies that have been done by the General Accounting Office, 
as well as by a group known as the Weiss Institute, have come to the 
conclusion that limiting the recovery of victims in medical malpractice 
lawsuits is no guarantee of malpractice premiums coming down. In fact, 
in many cases of States with caps on the recovery, limitations on 
recovery for malpractice victims, the malpractice premiums for doctors 
have gone up.
  There is no linear connection or guarantee that limiting the recovery 
for victims is going to help the doctors, yet that is the only solution 
that is before us on the floor today.
  Mr. REID. It is also true, is it not, I say to the Senator from 
Illinois, that the two studies of the Weiss and the General Accounting 
Office are not studies that have been paid for, were involved with or 
directed by attorneys? Is that a fair statement?
  Mr. DURBIN. That is exactly right. I would say to the Senator from 
Nevada, it is true the medical profession feels very strongly on one 
side and the trial bar on the other. But what I have tried to do is 
gather information from those who have no axe to grind, people who are 
trying to analyze this problem honestly. The conclusions they have 
reached suggest to me this is a much more complex problem than what we 
see today.
  Unfortunately, S. 11 I think is a political answer to a much more 
serious problem. If this is a question about whether the White House is 
going to take on the trial bar in some sort of confrontation for the 
next election, that is one thing. It is an interesting political 
battle. It is not going to solve the problem, not in my State or any 
other State. We have to deal with it honestly by saying the medical 
profession, the insurance industry, as well as the legal profession 
have to come to the table. We need to have not only committee hearings 
so we can see publicly what this issue is all about, but we need to 
have a good-faith effort. We can do it.
  I think the Senator from Nevada recalls after 9/11 we had a problem 
with terrorism, of course, and the threat of terrorism. That had an 
impact on the construction industry and on investment. So people came 
to us and said: We can't get people to invest in building new buildings 
unless we do something about terrorism insurance.
  We sat down on a bipartisan basis and worked it out. Senator Daschle 
came to the floor yesterday and said: Use the same model on 
malpractice. Bring us together, Republican and Democrat alike, and try 
to find common ground and a solution. If it is not through a committee 
process, let it be through an honest to goodness, good-faith 
negotiation, but we can achieve that goal.
  Mr. REID. The Senator is aware, is he not, the reason terrorism 
insurance was held up for so long is that Republicans wanted absolute 
tort reform, everything involving medical malpractice, slips and falls, 
rear-end automobile accidents--everything. We said: Why don't we just 
deal with terrorism insurance? We finally prevailed, and we have done a 
good job. There is construction going on all over America today, and 
they are able to go forward because they can get terrorism insurance 
based upon the legislation we passed.
  The Senator, as I understand it--I want to make sure I am correct in 
this--believes reform is needed?
  Mr. DURBIN. Yes.
  Mr. REID. No. 2, you believe we should do it through the ordinary 
process, have committee hearings.
  Finally, you believe the insurance industry should be involved in 
this because the McCarran-Ferguson Act, named after Senator Pat 
McCarran of Nevada, was passed to give a few years of relief to the 
insurance industry so they could gather together during the Depression 
and not be involved with the Sherman Antitrust Act, and now, some 70 
years later, they are the only business other than major league 
baseball that is not subject to the Sherman Antitrust Act. So the 
Senator believes they should be like other businesses in America, 
subject to the Antitrust Act.
  If we did some reform here and we involved the committee structure 
and we involved the insurance industry, I think we could move the bill 
pretty quickly. Does the Senator agree?
  Mr. DURBIN. I agree with the Senator.
  One other thing that needs to be part of the record: Even if we 
enacted S. 11, which is the cap on recovery for medical malpractice 
victims--children, elderly people and families alike--there is no 
guarantee medical malpractice insurance premiums will come down. In 
Nevada, significant reform legislation was passed but, as I understand 
it, the premiums did not start coming down for some period of time, if 
at all.
  Mr. REID. It is absolutely true. The fact is, if you look around the 
country, insurance rates have not gone down where these medical 
malpractice reforms have been initiated.
  But another thing it doesn't take into consideration is the 
tremendous harm done to people who have no ability to move forward when 
a doctor does something wrong to them.
  I think the Senator indicated there are about 100,000 people killed 
because of medical malpractice in America every year. But that doesn't 
take into consideration the people who are paralyzed, people who are 
injured and damaged in many other ways. With this cap, these cases 
simply do not go forward.
  So it is really not fair to analyze what goes on in those States 
because you don't take into consideration the damage, the harm, the 
pain and suffering of these people who have no way to recover their 
expenses as a result of a direct negligent act by a physician.
  Mr. DURBIN. I agree. I say to the Senator from Nevada, I do not 
profess to be an expert, but I did, in my private practice as an 
attorney before I came to the Congress, have several malpractice cases. 
In some I defended doctors and in some I sued doctors for what I 
believed to be malpractice. Those are heartbreaking cases and should 
not be dismissed easily by the Members of the Senate until they sit 
down and talk to families.
  I can recall a family who brought in an infant girl to my office. She 
had gone to the doctor for her ordinary baby shots, which I am sure the 
Senator from Nevada and my family have done; we have brought our 
children in for them without any real concern. This poor little girl, 
because she had a condition known as roseola, a form of measles that 
was undetected before the administration of the baby shot, ended up 
with a serious reaction to the pertussis vaccine for whooping cough and 
literally became a quadriplegic. This little girl was going to live the 
rest of her life in a virtual coma-like state and need constant care.
  What we hear from the other side of the aisle is that that is not 
worth more than $250,000.
  I would say, if I were the parent of that little girl, I would view 
this a lot differently. I would want to have a jury of my peers to 
decide what it is worth, what is the value.
  But S. 11 takes away the authority of the jury to make that decision 
and decides we will make the decision here for every case in America--
no matter how serious the injury to the infant or the person who is the 
victim of malpractice, no matter what the circumstances--to strictly 
limit it to a $250,000 recovery.
  I think that is unfair. I think the Senator from Nevada has made the 
point.
  The last point I will make on this issue is that I think we need to 
give the doctors immediate relief on malpractice premiums. I am going 
to introduce legislation with Senator

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Graham of South Carolina that will provide an immediate tax credit, in 
addition to the deductibility, an immediate tax credit of up to 20 
percent for relief to the specialties that are hardest hit by these 
increases in premiums for malpractice insurance--neurosurgery, OB/GYN, 
trauma surgeons. I really believe we need to do something quickly.
  S. 11 does nothing but change a law which may or may not, in 3 or 4 
years, result in premiums going down. It is far better for us to do 
something on an immediate basis, an emergency basis. I hope the medical 
association and societies across America will take a hard look at this 
bill--it is being offered in good faith to deal with the immediate 
crisis--rather than penalize the victims of medical malpractice.
  Mr. President, I yield the floor.
  Mr. REID. Mr. President, if I could say one thing--I know the 
Democratic leader is in the Chamber--I have the highest respect and 
admiration for my colleague from the State of Nevada, Senator John 
Ensign, who has introduced this legislation. He is passionately 
involved with doing something to solve this medical malpractice crisis. 
As I have indicated, I have supported his efforts to do something about 
it. He and I tend to disagree on how to do it. But I want the record to 
be spread with the fact that I have great respect and admiration for 
his moving forward on this problem.
  I only wish there had been full committee hearings on his 
legislation. I think it would have improved it before it reached the 
floor. I think he has been shortchanged by not having his legislation 
brought before the appropriate committee, had hearings, and then 
brought here. I think with some changes in this legislation it is 
something we could all support.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, I compliment again, as I did yesterday, 
the distinguished Senator from Illinois for his great work on this 
issue and for beginning this educational process that I think has to be 
a part of the debate at this time.
  I also want to thank, as is always the case, the distinguished 
assistant Democratic leader for his involvement in these discussions as 
well.
  I have concerns about where we are with regard to this issue on at 
least two counts.
  First of all, the procedural count: I wish I had $1 for every 
occasion when Republicans would lament the fact that the committee 
process was bypassed. Yet here we are. There has been no hearing. There 
has been no markup. There has been no committee consideration at all of 
what is one of the most complex and extremely controversial issues to 
face the Senate and the country. To bypass the entire committee process 
and bring the bill straight to the floor does an injustice to the 
issue.
  As Senator Reid has noted, a bill of this magnitude deserves careful 
consideration, deserves the opportunity to be heard, and deserves the 
chance to have some debate in the committee among the experts who know 
this issue. I think it would be very helpful.
  It is interesting that the president of the Tort Reform Association 
said don't count on insurance premiums going down if this legislation 
passes. I think Senators need to know that. If the president of the 
Tort Association of America says, look, don't expect any relief, what 
is it we are doing? This isn't from some trial. This is a person who 
advocates tort reform, but he is in the name of real honesty saying: 
Look, this is not the reason we are arguing for tort reform today. It 
is not going to bring down insurance premiums.
  I think procedurally we have a real concern about the reason we are 
here today. I think that is something that ought to be considered very 
carefully. This is an important bill. It deserves the kind of careful, 
substantive attention that only committees can bring.
  Second, of course, is the issue itself. As the distinguished Senator 
from Illinois has said so ably, we understand how important it is to 
address the seriousness of insurance premiums. We have two approaches 
before us: The one offered by the Senator from Illinois, and the one 
offered by the Senator from South Carolina which will give immediate 
relief. We are talking within the next couple of weeks, if this went to 
the President's desk, immediate relief for meaningful insurance cost 
reduction.
  When I go home that is the issue about which doctors tell me they are 
concerned. They can't afford to pay the premiums. There is no better 
way to reduce the premiums than to give them the immediate relief 
offered in the Graham-Durbin bill. But I must say this is also a 
recognition of the concern.
  There has to be a way to address the problems created when mistakes 
are made. Tommy Thompson himself--certainly no advocate of the status 
quo--has recognized that last year, the year before that, and the year 
before that 100,000 people died as a result of mistakes made in 
operating rooms, in clinics, and hospitals across the country. That is 
not my figure. That is not some special interest figure. That is the 
Secretary of Health and Human Services--100,000 people died.
  I oftentimes find myself equating numbers with Vietnam and Vietnam-
era veterans. We lost 58,000 people in Vietnam. We are losing almost 
twice that number every year due to mistakes made in operating rooms 
and in hospitals.
  What I find perplexing--interesting--is that our Republican 
colleagues, who say the States know best how to govern, are saying: 
Well, in this case we don't think that is the case. In this case what 
we think is we know better. Washington is going to dictate to the 
States what the laws with regard to tort will be. Not only are we going 
to set the cap at $250,000, but we are actually, under the legislation 
before us today, going to preempt every single State law except the 
cap.
  We are going to tell the States we know better and we are going to 
dictate to the States what it is they are going to have to abide by 
from here on out--total Federal preemption of State law. It is amazing 
that is coming from our Republican colleagues.
  I would also say I am concerned because I can probably even consider 
looking at caps if there was any conclusive evidence that caps work. 
There is a very respected analytical group that made, with some 
fanfare, a decision a couple of years ago to examine this whole 
relationship between caps and premiums. They announced when they 
started the study that they did not know how it is was going to turn 
out. It could be pro-cap or it could be anti-cap. They didn't know. But 
they believed an objective review of the available information ought to 
be considered. They studied it. They looked at every single State. They 
released their findings about 3 weeks ago.
  Do you know what they found? They found that there is no 
relationship. In fact, what they found is, in those States where there 
are caps, insurance premiums went up more than in those States that 
didn't have caps.
  They are not arguing that caps had anything to do with it. But it is 
an interesting fact. Those States today with caps have actually seen 
higher insurance premiums than those without caps, according to this 
very respected independent study just released.
  Both on the substantive as well as on the procedural issue, we have 
great concern with the fact that we are here today. We have a solution. 
I would argue to anyone on the other side who really wants to resolve 
this issue that we go back to what we did last year with terrorism 
insurance. That, too, was a tort reform question. Member after Member 
came to the floor and said unless we deal with tort reform we will 
never solve the terrorism insurance question. We sat together in a 
bipartisan fashion--Republicans and Democrats--worked out a reinsurance 
concept and passed it on the Senate floor, finally, after a great deal 
of tribulation and negotiation, with a large margin.
  If you go to New York or to Chicago or to the hometown of the Senator 
from Illinois or a lot of other places, you will find that the 
terrorism insurance bill worked. I would argue it worked in part 
because procedurally we decided to come together and resolve it

[[Page 17070]]

and solve it. I think it worked in partly because we addressed the 
issue with real solutions. We didn't get hung up on all of this tort 
reform because that wasn't the issue there either.
  Today, we still celebrate a success story. We celebrate a success 
story here, too. We have a bipartisan Graham-Durbin bill. It might not 
be everything. Maybe we can figure out a way to make it an even better 
bill. I think we have to deal with reinsurance. I think we have to find 
a way to deal with reinsurance reform. We have to provide immediate 
relief and the tax credit relief proposed by the Senator from Illinois. 
We can do that. I think it is important that we do it. I think it is 
important that we recognize unless we do it that way we are not going 
to solve this issue.
  Cloture will not be invoked tomorrow--not because we don't want to 
solve this problem but because we don't want to have a bill that is 
poorly conceived and will not solve the problem and which will be 
rammed down the throats of the country. We can find a better way to do 
this.
  I would just implore my colleagues on the other side to work with us 
to make that happen.
  Let me again thank the distinguished Senator from Illinois for his 
work.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I thank the Democratic leader for his 
comments and for his leadership on this issue. I think he has shown a 
good-faith effort in the past to deal with issues and with the 
complexity of terrorism insurance. And that opportunity is still here 
today.
  This week in Washington, many representatives of the medical 
profession will come to visit us and talk about the seriousness of this 
issue. They don't need to convince me; I am convinced.
  The question is, How do we resolve it fairly and not just for doctors 
but for the victims of medical malpractice. We can do this. But I don't 
believe S. 11 is the way to approach it.
  If we are going to allow this to disintegrate into a political face-
off between the White House and the trial lawyers of America, perhaps 
when it is all over someone will have bragging rights for a 30-second 
ad. It will not help the doctor with whom I met who is serving 
Primbrook Township, south of the city of Chicago about an hour-and-a-
half drive. You will find some of the poorest rural towns in America in 
Primbrook Township. This doctor is literally giving his life to the 
poor who need medical care. He said to me 2 weeks ago in Washington: 
Senator, I am here to receive this Jefferson Award, and I am proud of 
it, but I need help with malpractice insurance. I want to help him.
  Limiting the recovery by malpractice victims may ultimately give 
someone some satisfaction that they have scored a political victory 
over the trial bar, or perhaps their limitation of victims' recovery 
will give them some satisfaction, but it is not going to help that 
doctor. It is not going to reduce his premiums. It is not going to give 
him an opportunity to continue his practice.
  So I say to my friends in the medical profession--and this doctor is 
a good example--we honor and respect what you do. We need you. We need 
to work with you. Do not get so caught up in a political agenda 
involving the White House and the trial lawyers that you overlook the 
fact there are many people of good faith and good will who want to sit 
down and help.
  We believe this can be done. It can be done in a way that is not 
going to deny the parents and the family of the small child, who, as I 
mentioned earlier, is going to live a lifetime of medical dependency 
because of medical malpractice. It is not going to be done in a way 
that is going to deny a woman who went in for simple cosmetic surgery 
and ended up with horrific burns on her face that required a dozen 
operations and years and years of suffering. That is not the way to 
resolve this.
  Do this in a fair way for doctors; do it in a fair way for medical 
malpractice victims. Do not be afraid to call in the special interest 
group, the insurance companies, and tell them they have to be part of 
this conversation. We have the power in Congress to bring them in. We 
have the power to change the laws to make sure they treat doctors and 
hospitals fairly and to make certain the medical profession comes 
forward.
  It is interesting to me that as I have discussed the issue of medical 
malpractice with doctors in my State and across the Nation, they have 
been of one mind and one voice and they have agreed: We need to do more 
to make certain we reduce the incidence of medical errors.
  A doctor, who is a friend of mine, in Decatur, IL, also works on the 
board of a local hospital. He said he went to the hospital pharmacy 
where they literally write thousands of prescriptions each year for the 
patients who come through that hospital and they wanted to find out how 
many errors had been made in the prescriptions that had been written. 
They came up with a handful of examples. The doctor said to me: 
Senator, I know better, and you know better. We're not doing a good 
enough job here to make certain that mistakes are not made in the drugs 
that are prescribed and the prescriptions that are written.
  We can do a better job--and we should--to have medical safety. 
Doctors want the best results. They do not want bad results. Certainly, 
the families and patients do not, either. We can work together to try 
to improve medical care in America in a professional way.
  The bill I am going to introduce is going to allow for the transfer 
of information, data on medical safety, and the transfer of information 
without legal liability, so a doctor who would report an incident at a 
hospital that may lead to a change in a procedure or perhaps to a 
disciplining of a doctor is not going to be held legally responsible 
for having come forward with this information.
  I think that is the only fair and honest way to deal with this issue. 
But if we are going to deal with it, let us look at each of those 
components: the medical profession, the insurance industry, as well as 
the legal profession.
  What I do not want to see occur is what S. 11 really mandates; that 
is, instead of a jury of 12 in communities across America taking a look 
at each individual case to decide what a fair, reasonable verdict and 
outcome might be, we would have a jury of 100, 100 Senators, men and 
women elected here, who would sit in judgment of every single case in 
America involving medical malpractice.
  We are not going to hear the story of the parents, who are going to 
come from that downstate community in Illinois, who took their little 
boy in with a high fever, who expected medical care--which each of us 
would expect as parents bringing in our baby with a fever to a clinic--
and did not receive it because no temperature monitor was in place and, 
as a consequence, that little boy's high fever led to complications, 
quadriplegia, and the fact that he now has a lifetime of medical 
dependence on his parents. He will never enjoy the simple things in 
life which each of us takes for granted.
  We are not going to hear that story in the Senate as a jury would 
hear in a courtroom. We will not hear the details of his life and what 
it means now: the pain and suffering he goes through every single day. 
No, we will not hear those facts. We will not make a decision based on 
the reality of the malpractice that this family and boy endured.
  Instead, we will make a decision, under S. 11, that says $250,000 is 
the maximum amount that boy and his family will ever receive for the 
injuries which they have suffered when it comes to pain and suffering. 
That isn't fair. We should not stand as a jury and make that decision. 
We ought to trust a jury system that has been part of American justice 
for a long time, a system that we rely on every single day in thousands 
of courtrooms across America.
  I think a sensible approach is to say that we do have a problem; we 
will work with the doctors; we will work with the insurance companies; 
and we will work with the legal profession to find a reasonable 
alternative to it. S. 11 is not that alternative.
  If, in fact, the cloture motion is defeated tomorrow, which means we 
do

[[Page 17071]]

not proceed to the bill, I make this offer, not only to the sponsors of 
that bill but to all who are interested in this issue, that I will 
personally engage myself in trying to find a reasonable, good-faith 
alternative that reduces malpractice rates, premium rates, particularly 
for those doctors who have no experience of wrongdoing--now, there are 
some doctors paying high rates who, frankly, have to pay them because 
they have been found guilty of malpractice--but for the innocent 
doctors, who have given their lives to medicine and who come forward 
every single day in a valiant effort to save and improve lives, I will 
stand on their side to make certain that they are treated reasonably 
and fairly.
  Please do not turn to S. 11 as your only recourse because S. 11, 
being offered on the floor today, is one bill which is as unfair to 
malpractice victims as the insurance premiums are unfair to doctors in 
many places in America today. Let us work together-- as we can; as we 
did under the terrorism insurance legislation--to find a reasonable 
alternative.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will please call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Enzi). Without objection, it is so 
ordered.
  Mr. SCHUMER. Mr. President, I ask unanimous consent to address the 
Senate for about 15 minutes on an upcoming judicial nomination.
  The PRESIDING OFFICER. All remaining time is on the majority side. Is 
there objection?
  Mr. ENSIGN. Mr. President, I was scheduled to make a statement on the 
medical liability bill, and I am prepared to do that at this time.
  Mr. SCHUMER. Mr. President, I ask the Senator how long he intends to 
speak.
  Mr. ENSIGN. Probably 10, 20 minutes.
  Mr. SCHUMER. I ask unanimous consent that after the Senator from 
Nevada finishes his remarks, I be recognized for 15 minutes on the 
nomination of Mr. Wolski on which we will vote at 11:45 a.m.
  The PRESIDING OFFICER. It was the Chair's understanding there would 
be a substitute in the chair so he could make a statement on the 
Republican time following Senator Ensign's speech and that the debate 
would begin at 11:30 a.m. on the judges.
  Mr. SCHUMER. Mr. President, are you saying there is no time between 
now and 11:30 a.m.?
  The PRESIDING OFFICER. All the time has been reserved on the 
Republican side.
  Mr. SCHUMER. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. ENSIGN. Mr. President, I have come to the Chamber to talk about 
the legislation we are going to be discussing for the next couple of 
days. It is very important legislation that affects people in virtually 
every State in the country.
  We have patients today being denied access to medical care in many 
States across the country, and we are going to explore why that is 
happening and what I believe the solution should be. Several States are 
losing medical professionals at an alarming rate, leaving thousands of 
patients without a health care provider to serve their needs.
  In Bisbee, AZ, the town's only maternity ward closed. Today expectant 
mothers must drive more than half an hour to have their babies 
delivered. In Mississippi, 11 out of 21 obstetricians terminated 
service in four rural counties. In my home State of Nevada, our only 
level 1 trauma center closed for 10 days, leaving every patient within 
10,000 square miles unserved by a trauma unit.
  The bottom line is patients cannot get care when they need it most. 
By definition, this is a crisis. This crisis boils down to two factors: 
affordability and availability of medical liability insurance for 
providers.
  The States in red are currently in crisis. A number are new States in 
crisis. We can see they have been added, including the Chair's State of 
Wyoming. My State has been in crisis for quite some time now, and it 
has led to a lot of the national press, but it is certainly not alone. 
The States indicated in yellow are the States that have problem signs. 
The States that currently seem to be OK are indicated in white, and we 
can see that very few States are in pretty good shape. Most of those 
States have enacted medical liability reform that has been in place 
long enough to stabilize the rates on medical liability insurance.
  On affordability, the American Medical Association found that in the 
year 2000, medical liability insurance rates increased at least 30 
percent in 8 States and by at least 25 percent in more than 12 other 
States. In this past year, the physicians in my State would be pleased 
if the rates had only gone up that much. These rates are forcing more 
physicians, hospitals, and other health care providers to limit their 
practices or to leave the profession altogether.
  Anecdotally--and obviously this hospital would not want this word to 
get out--at this time of the year when they get applications for new 
residents, they normally get about 18 to 20 residents applying for 
slots at that hospital. That is an average of 18 to 20 each year. This 
year they have received zero applications, and that is because of the 
medical liability crisis that is occurring in my State.
  Rates are forcing so many physicians and hospitals into a situation 
they did not want to be in. They went into these practices because of 
the compassion they felt for patients, and they are not being able to 
deliver the services because of the out-of-control costs of medical 
liability insurance.
  On the issue of availability, thousands of doctors nationwide have 
been left with no liability insurance as major insurers are either 
leaving the market or raising the rates to astronomical levels.
  Why are insurers raising rates or leaving the market? Because there 
is no stability in the marketplace for providing medical liability 
insurance. Why is that the case? Because our health care system is 
being overrun by frivolous lawsuits and outrageous jury awards. This 
excessive litigation is leading to higher health care costs to every 
American and an unstable peace of mind for our health care providers.
  This chart shows the average payment in red from the year 1989 to the 
year 2001 and the median payment. We can see the dramatic increase, 
especially in the last few years, and if this chart continued out, it 
is continuing that trend up to the point where the average being paid 
in jury awards is continuing to skyrocket, and it is doing that because 
of the number of over $1 million awards being made by juries.
  This is a chart reflecting the median jury award. We can see this is 
the $1 million line, and we can see what has happened. It has gone up. 
This, unfortunately, has created a situation where doctors, hospitals, 
and health care providers cannot afford to buy the insurance they need 
to continue practicing.
  This excessive litigation is leading to higher health care costs for 
every American and an unstable peace of mind for our health care 
providers. Health care professionals are forced to practice defensive 
medicine by ordering unnecessary tests just to avoid being sued for 
``underdiagnosing'' their patients. A study by the Department of Health 
and Human Services found defensive medicine is costing the Federal 
Government an estimated $28 billion to $47 billion in unnecessary 
health care costs.
  Who else pays for these unnecessary costs? Every American with health 
insurance in the form of higher premiums and, obviously, the American 
taxpayer. Too often costs are so great that employers have to stop 
offering coverage altogether, thereby increasing the number of 
uninsured Americans. A lot of those uninsured Americans are younger, 
healthier people. So the people who are left in the health care field 
are a higher risk pool, which drives up the cost even more, which 
causes more and more people to not be

[[Page 17072]]

able to afford health care insurance; therefore, more uninsured. It is 
a vicious cycle that goes on and on. This cycle has to be stopped. We 
can do that by passing national medical liability reform right now.
  Comprehensive reform is critical on a national level because every 
American patient should have access to affordable and high quality 
health care. Likewise, every responsible, meritorious member of the 
health care community should not be afraid to provide such care because 
of the fear of litigation.
  To achieve these reforms, I have introduced the legislation that is 
before us today, known as the HEALTH Act. It has several key reforms. 
It includes a $250,000 cap on noneconomic damages, joint liability, and 
collateral source improvements, and limits on attorney's fees according 
to a sliding scale award.
  In addition, my legislation includes an expert witness provision to 
ensure that relevant medical experts serve as trial witnesses instead 
of the so-called professional witnesses who are used to further abuse 
the system today. If one talks to physicians, there is literally a 
whole industry that has been created of these ``professional 
witnesses.'' It would make sense that if somebody was testifying in a 
case involving neurology, that the person should have expertise in the 
field of neurology. I think that makes incredible common sense, but 
that is not the way it works today. As long as somebody is a physician, 
they are able to testify and be called an ``expert.''
  Our legislation today says that if they are to be called an expert, 
they must have expertise in the field in which they are testifying. 
Over 50 organizations are in support of my bill, including business 
groups, medical associates, device manufacturers, and the list goes on. 
I have heard from people all over my State, and not just physicians. 
This is not a doctors versus lawyers issue. This is about patient 
access to medical care. That is why we have heard from nurses, physical 
therapists, and people who work in doctors' offices and understand the 
problem that is going on. We have heard, of course, from physicians, 
but we have also heard mostly from the patients who understand; we have 
gotten so many calls from women whose physicians used to deliver 
babies. The women are now pregnant and their obstetricians no longer 
can deliver babies because they may be a high risk delivery and they 
can no longer afford to provide that type of a service.
  The broad coalition that has come forward to urge meaningful reform 
highlights that this problem affects a number of industries, not only 
our health care system. Starting the Senate debate with our strongest 
proposal is critical because we must not approve a weak bill that the 
President will not be able to sign into law. Doing something weak as a 
Band-Aid would actually make things worse, and that is why we need very 
strong legislation.
  Opponents of this legislation ask how I know this approach works. It 
works because this legislation is modeled after the highly successful 
legislation that passed and has been in place for over 20 years in 
California. It is known as MICRA. MICRA has brought about real reform 
to California's liability system. The number of frivolous lawsuits 
going to trial has declined dramatically. Injured patients receive a 
larger share of their rewards because of the limits on the fees that go 
to the trial attorneys. Disciplinary actions against incompetent health 
care providers have increased.
  The bottom line is that California's medical liability system works. 
This is a quote by one of our colleagues from the other side of the 
aisle, Senator Dianne Feinstein, January 14, 2003:

       With the California law, we have a time-tested solution. 
     California passed MICRA in 1975, so we have our 27 years of 
     successful experience with the law.

  One important point, neither MICRA nor my legislation limits the 
amount of economic damages that an injured patient can recover. As in 
every other profession, mistakes are made by health care providers. I 
practiced veterinary medicine after graduating from Colorado State 
University. I saw firsthand that mistakes are made.
  Medicine is an art and a science, and there is a human being 
practicing that very inexact science. Every day somewhere mistakes are 
made. They are unfortunate. We should do everything we can to limit 
those mistakes, but we know mistakes will be made.
  Sometimes they are mistakes in judgment. When one looks back in 
hindsight, they can see how they could have made that decision 
differently. But when they are faced with it at the time, because the 
human body does not read the textbook--this is how the disease is 
supposed to progress, this is how the injury is supposed to progress--
the human body does not read that. So sometimes it reacts differently 
to the way the physician was trained, and so what looks like a mistake 
in a court of law could have actually been a very difficult judgment 
call. Yet a lot of these are frivolous lawsuits that are going to 
trial.
  In our legislation, we are trying to bring some balance back to the 
system. We do limit the amount of noneconomic damages, pain and 
suffering as it is most often referred. People say, how can that be 
limited? How can losing a leg be limited or how can a dollar figure be 
put on that?
  Well, a dollar figure can never be put on it. No amount could ever be 
justified to somebody for some of the things that happen to them, but 
we have to look at the overall good of our system.
  With the system we have now, we are losing doctors, and we are losing 
the kind of patient care we need. How does one put a dollar figure on 
the doctor not being there, on the health care provider not being 
there, on the hospital closing, on the trauma center closing?
  We had a press conference several months ago in Washington with a 
woman whose father was in Las Vegas visiting, and it happened to be the 
week that our trauma center closed. During that week, unfortunately, he 
needed our trauma center. I cannot tell my colleagues that he would 
have lived if it was open, but the reason trauma centers exist is 
because they provide intense expertise in the area of trauma. They have 
great results, much better than normal emergency rooms. Unfortunately 
for this family, that trauma center was closed.
  By the way, the only way we were able to reopen the trauma center in 
Las Vegas was because the State stepped in and said that we are going 
to limit not to $250,000, but we are going to limit to $50,000 any 
injuries and malpractice that occurs. That is not just noneconomic, 
that is even economic damages. That is the only way that the trauma 
center in Las Vegas was able to open. We are losing all kinds of 
experts in emergency rooms in other areas in Las Vegas as well.
  People talk about decreasing the amount of mistakes by physicians, 
and we need to do that. It is very difficult and very complex to do. 
One of the ways we can do that is to enact legislation to encourage 
voluntary reporting. The current system actually is a protectionist-
type system that if somebody voluntarily reports mistakes, they set 
themselves up for lawsuits. So we have no way to follow where the 
mistakes are being made and to point out trends so we can correct those 
mistakes.
  The House has passed patient safety legislation. We are going to be 
working on that in the HELP Committee, of which I am a member. I hope, 
in a bipartisan fashion, we can craft patient safety legislation that 
will make the outcomes more of what we all want to see. That means 
fewer mistakes. But understand that there is no way to have a mistake-
free environment in such an area where the science is so inexact. We 
have an opportunity here.
  We have an opportunity with so many States now in crisis. The States 
in red on the chart are in crisis; the States in yellow show serious 
problem signs. We have a chance in the Senate--the House of 
Representatives has already enacted this legislation--to make a real 
difference in patients' lives. We can make sure trauma centers do not 
close. We can make sure when a woman needs access to an obstetrician 
she can have that access.
  A friend of mine has Parkinson's disease, lives in Las Vegas, and has 
to go

[[Page 17073]]

to Loma Linda where his specialist treats him. We do not have that 
particular field of subspecialty in southern Nevada. He talked his 
physician into coming to Las Vegas before the crisis hit Nevada. When 
the crisis hit and we lost our major carrier of medical liability 
insurance, the rates literally doubled and tripled overnight, and that 
physician decided to stay in California. Why? Because they have enacted 
a law that has kept rates reasonably low.
  My next chart shows differences in larger cities around the country. 
First, OB/GYN in Los Angeles, a well-to-do area that has enacted 
medical liability reform, $54,000 on average for an OB/GYN; in Denver, 
also where they have had enacted legislation, $30,000. Then we have New 
York, Las Vegas, Chicago, with Miami the worst. These are places that 
do not have medical liability reform. In Miami, rates are over $200,000 
on average for an OB/GYN.
  People say doctors make plenty of money. Have you talked to an OB/GYN 
lately about their average income? In Las Vegas, the average income is 
around $200,000 for an OB/GYN who goes through 8 years of undergraduate 
and medical school and then a 5-year residency. They come out $250,000 
to $300,000 in debt minimum and they work about 100 to 110 hours a week 
to make $200,000. And their rates now in Las Vegas are around $130,000 
to $140,000, up from a couple of years ago around $40,000 or $50,000 a 
year.
  Because of managed care they are not able to increase their rates, so 
it comes out of their pockets. That is why a lot of them are leaving 
our State. That is why a lot of new people are not going into the 
practice of obstetrics and gynecology. Especially for delivery of high-
risk patients, rates have skyrocketed. Many physicians simply will not 
treat high-risk patients.
  What are the women to do with a high-risk pregnancy? More and more 
women today are choosing to have babies later and later in life, and 
more and more of them have high-risk pregnancies as a result. With 
fewer and fewer doctors able to deliver high-risk pregnancies, this 
does not add up. That is why it is so critical to enact this 
legislation before the Senate today.
  I know where the politics lie. We will probably not be able to pass 
this legislation at this point. However, I want people to take a hard 
look, talk to the patients in your States, find out what is really 
happening at the grassroots level. This is not a question of how much 
money a physician makes. This is not a question of whether hospitals or 
insurance companies are going to be profitable. This is a question of 
whether when somebody needs the health care services to save lives or 
deliver babies, that health care will be there because the provider is 
there.
  I am passionate about this issue because people are in jeopardy of 
not getting the kinds of lifesaving services they need, the types of 
services that improve the quality of life for so many Americans. That 
is why this legislation is so critical today.
  As we go forward over the next 24 hours debating this bill, I 
encourage Members to have a healthy debate with an up-or-down vote and 
start hearing from the American people on this issue. If Senators 
listen to their constituents, they will hear loudly and clearly we need 
to reform our medical liability system so we can afford to have health 
care that is so desperately needed.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Are we in morning business?
  The PRESIDING OFFICER. We are in morning business with remaining time 
on our side of 4 minutes 21 seconds.
  Mr. REID. Mr. President, I ask that the Senator from Idaho be given 
whatever time he needs. He is talking about a very important subject.
  The PRESIDING OFFICER. There is a unanimous consent to begin debate 
on judges at 11:30.
  Mr. REID. I ask unanimous consent the Senator have whatever time he 
needs up to 25 minutes to the hour for this very important statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________